What is ‘Catfishing’?
Catfishing is the term used to describe instances of deception about one’s identity online, usually underpinned by an ulterior motive. It is often seen on social media platforms for these purposes of bullying or online dating to pursue someone romantically under false pretences. In NSW, ‘Catfishing’ itself is not a crime, however, it will be considered illegal in certain circumstances.
‘Catfishing’ and Fraud
Under Section 192E of the Crimes Act 1900 (NSW) a person who, by any deception, dishonestly obtains property belonging to another, or obtains any financial advantage or causes any financial disadvantage, is guilty of fraud.
For the offence to be established, the prosecution must prove each of the following ‘elements’ beyond reasonable doubt:
- By deception, the defendant acted dishonestly, and
- These actions created a financial advantage over another person’s property, or caused them to suffer a financial disadvantage, and
- The actions were intentional or reckless.
One of the key complexities of this offence is that whilst dishonesty can be established in many cases, there is difficulty in proving the necessary element of ‘deception’ to the requisite standard (beyond reasonable doubt).
The maximum penalty for this offence is ten years imprisonment.
‘Catfishing’ to procure or groom
A serious form of ‘catfishing’ is where the individual intends to encourage children to engage in sexual activity. Under Section 66EB of the Crimes Act, it is a crime for a person to intentionally ‘procure’ and ‘groom’ children under the age of 16 for unlawful sexual activity.
Subsection (2) contains the offence of ‘procuring.’ An adult person who intentionally procures a child for unlawful sexual activity with that or any other person is guilty of an offence. This requires the prosecution to prove beyond reasonable doubt that an adult intended to encourage, entice, recruit or induce a child under 16 to engage in unlawful sexual activity.
In the context of catfishing, the prosecution must negative any reasonable possibility that, through the fake online persona, the defendant had another intention – such as creating and maintaining a non-sexual relationship – despite the existence of sexualised communications.
The maximum penalty for the offence is 12 years’ imprisonment, or 15 years if the child is under 14.
Subsection (3) prescribes the offence of grooming children. This occurs where an adult engages in conduct that exposes a child to indecent material or provides a child with an intoxicating substance and does so intending to make it easier to procure the child for unlawful sexual activity.
Under this section, the prosecution does not need to prove that the complaint was not consenting, as the consent of the complainant is no defence to a charge under this section.
The maximum penalty is 10 years imprisonment, or 12 years if the child is under 14.
A further offence flowing from this is where a person meets a child following grooming, per subsection (2). Under this subsection, it is an offence for an adult person to intentionally meet a child, or travels intending to meet a child, whom the adult person has groomed for sexual purposes, and does so intending to procure the child for unlawful sexual activity with that adult person or any other person.
The maximum penalty is 12 years imprisonment, or 15 years if the child is under 14.
Under this section, there is a defence if the accused reasonably believed that the other person was not a child.