It can be complex to navigate the legal system in relation to image-based abuse. This is a guide to understanding the difference between criminal and civil cases and what you might expect when you engage help from police and lawyers.
A major difference between civil and criminal law is that civil laws are not enforced by police.
Civil law deals with private disputes between people and/or organisations, and usually involves one person suing another person or organisation by bringing a civil claim against them through the court system. Bringing a civil claim may result in monetary compensation, known as damages, being awarded to you or a court order.
This means that even if there are no criminal laws that can be used in your specific instance of image-based abuse, it may still be possible to bring a civil case against the person or people who shared the images or video of you without your consent. For more information about the differences between civil and criminal law, see the summary below.
The process of suing someone (i.e. using civil law to prosecute your abuser or abusers) can be long, expensive, difficult to understand and emotional.
It is strongly recommended that you get legal advice from a lawyer or legal service before pursuing this kind of action. Civil claims for image-based abuse can include an action called breach of confidence. Other laws on causing harm or distress, as well as privacy law, contract law or copyright law might also be able to help you. Which claim, if any, you can use depends on the facts of your case.Finding a lawyer
To lodge a civil claim you must file documents that explain how your legal rights were infringed and how you want the matter resolved. In filing a civil case, you need to consider whether your claim is subject to any time limits, that is, whether you have a limited time to file your claim after the abuse has occured. These time limits may vary depending on what your claim is and which state or territory you are in.What’s the law in my state or territory?
If you were to bring a civil case and the judgement is decided in your favour, you may receive monetary damages or a court order might be issued.
Here is an example of a previous civil case concerning image-based abuse.Read Caroline’s case study
Criminal laws are usually enforced by police. If your abuser is found guilty of breaking a criminal law, they may face a fine or a prison sentence.
However not every state or territory currently has criminal laws against image-based abuse. If your state or territory does not currently have criminal laws that apply to your situation, other options may include bringing a civil case or requesting a protection order, with the help of a lawyer or legal service.What’s the law in my state or territory?
Below is a guide to the process you may encounter if criminal law applies in your case and is pursued.
Your first step may be to make a report to police. You can find more information on contacting your local police service and what to expect below. You may also want a lawyer to be present with you when you make a report to police.
When you make a police report, it is important that you provide as much detail and evidence as possible so that the police can assist with your case.How to collect evidence
The following form helps you to put together information to take to police about your case.What to take to a lawyer
Be aware that once you make a report to police, the police then decide what action to take. It becomes a ‘police matter’. The police may or may not decide to charge the person who shared your image. Even if you change your mind, the police might still choose to charge the person.
If the police are of the opinion that there is not enough evidence, they may not be able to charge the person or take the matter further. If this is the case, you may still be able to pursue a civil case.
When you go to your local police station, the police will probably ask about the case and may ask you to sign a statement which records what you have said. This statement is likely to be used in any court proceedings, so it is important that what you say in this statement is truthful. It can be very difficult to change your statement later on and may make you liable to prosecution if you have included any information that you know is untruthful. Below you will find useful advice on preparing a legal statement to be used by police and/or as evidence in court.Preparing a statement
Criminal court proceedings
If your case does go to court, evidence is likely to be shown in court such as screenshots of the intimate image or video that was posted online and/or hearing evidence from witnesses. You may be asked to give evidence in court and re-tell your story. If you require support in court, you may be able to have a support person in the courtroom when you give evidence.
The person or people who are accused of the image-based abuse are likely to be in the courtroom throughout the trial, including when you give evidence. If the court considers you to be a vulnerable witness, you may be able to give evidence from a separate room or have some other arrangement put in place. The accused person may be called as a witness by their defence lawyer to give evidence. This means that they, or their lawyer, may argue why he or she is not guilty. They may say things that you disagree with, such as that you consented to the image being shared, or that they did not share the image.
You may also be cross-examined during the trial. This usually involves a series of questions being asked of you to determine whether there are any weaknesses in your story. The defendant and his or her lawyer may try to discredit you, your testimony and any evidence that has been provided. This can be frustrating and emotional, but it is important to stick to the facts and stay as calm as possible.
It can take a while (sometimes years) for matters to go through the courts. How long it takes to resolve a matter depends on the court’s workload, the complexity of the case and whether the accused person appeals the decision made against them.
Adriana’s case study provides an example of a previous criminal case concerning image-based abuse.Read Adriana’s case study
|Civil law||Criminal law|
|Not enforced by police.||Enforced by police.|
|A private dispute between individuals, organisations or between the two.||A matter between the accused and the State.|
|The plaintiff (or victim of image-based abuse) brings the action against the defendant (or the perpetrator).||As the State is the prosecutor, the victim does not have to finance proceedings.|
|The standard of proof is ‘on the balance of probabilities’.||The standard of proof is ‘beyond a reasonable doubt’.|
|The burden of proof is on the plaintiff. However, in some situations the burden may shift to the defendant.||The burden of proof is on the prosecutor. It is assumed that the accused is ‘innocent until proven guilty’.|
|The remedy is usually monetary damages, an award to the plaintiff and/or an injunction (a court order).||The remedy is usually a jail sentence or a fine.|
As a victim of crime you may be able to access free government services such as support and/or financial compensation. Depending on which state or territory you are in, you may wish to visit the relevant site below for more information.
- Australian Capital Territory — Victim Support
- New South Wales — Victim Services NSW
- Northern Territory — The Crime Services Unit
- Queensland — Victim Assist
- South Australia — Commissioner for Victims’ Rights
- Tasmania — Victim Support Services
- Victoria — Victims of Crime Assistance Tribunal
- Western Australia — Department of Justice
You will find more options for support and counselling services, including personal stories from victims of image-based abuse, in the support section of this website.Take me to support