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Image-Based Sexual Assault: Ireland’s Answer - HARASSMENT, HARMFUL COMMUNICATIONS AND RELATED OFFENCES BILL 2017

Published on 26 November 2020 at 20:02

Spotlights shine on the Irish Government and the Dáil with calls for legislation surrounding harassment via digital and online communication. 

Despite being an issue raised and discussed within the Oireachtas as far back as 2017, the Victims Alliance’s discovery on November 17th of a discord server with over 500 users sharing sexual images of women and young girls without their consent has propelled it into the public discourse. 

 

What's revealed is a trend in Ireland’s response to various social issues, particularly those that affect women, hampered by slow political and legal developments, a lack of coverage by the media, and a sign that Irish society must now, more than ever, cease to ignore deep and systematic problems that impact historically marginalised groups.

 

The bill was introduced to the Dáil in 2017 after a Law Reform Commission report, Final Report on Harmful Communications and Digital Safety 21 September 2016, stated the need for reform in the law of digital communication. It made explicit reference to “revenge porn” and mentioned not only the psychological effect it has on victims, but that the mere threat of sharing such intimate images can be used to control the subject.

 

“The internet leaves individuals vulnerable to serious privacy violations through the non-consensual posting of private, false, humiliating, shameful or otherwise harmful content. Images uploaded online without consent can have similarly far-reaching effects, particularly where such images are of an intimate nature.”

 

Although the report acknowledged platforms such as Reddit and Discord as harbours of abuse, it emphasised on scrutinising social media sites (Instagram, Snapchat and Facebook) more due to their popularity. The report continues to discuss privacy as a right and relating it most to, fundamentally, the kind of privacy only shared with intimate partners, close friends and family. Congruently, it urges for the protection of this privacy, finding that it is necessary and conducive to the fundamental right of the person and to facilitate growth, identity, and autonomy of the individual. It cites Henchy J at page 71 of the seminal case for Norris v AG, on the topic of privacy, “a complex of rights, varying in nature, purpose and range, each necessarily a facet of the citizen’s core of individuality within the constitutional order.. fall within a secluded area of activity or non-activity which may be claimed as necessary for the expression of an individual personality”. 

 

It is worth noting that Senator David Norris, the appellant in this Supreme Court case, lost his constitutional challenge of Irish laws criminalising homosexuality, even in privacy. This decision was reversed by the European Court of Human Rights, a signal of Ireland’s lagging behind other European nations when it comes to protecting marginalised groups, and victims of societal and systemic exclusion, ridicule, and hate.

 

The report concluded with the primary advice of either repealing Section 10 of the Offences Against the Person Act 1997, or specifically mentioning digital abuse and harassment within the Act. Harassment “by any means” proved to be ineffective at adapting to contemporary issues of harassment in the digital age, given the lack of litigation on the matter. 

 

When examining the explanatory memorandum accompanying the bill for its introduction, the theme of “harmful communications” is most prevalent. It is apparent, the intention of then Deputy Howlin and those lobbying for it. This will guide how the law is to be read and interpreted during its preliminary stages in the Dáil. With recent events however, debates, discussions, and interpretations are likely to centre more around the impacts on victims of the offences outlined in the Bill, rather than the “harmful communications” in the Bill.

 

The 2017 Bill is, (as it currently stands) for the most part, pretty comprehensive in addressing these issues.  

 

Harassment has been defined in Section 3 as anyone who "persistently follows, watches, pesters or besets another person" or communicates "persistently" either with a person directly or to a third party about a person. The Bill also lays out several examples in which harassment could apply to, including, as laid out in Section 2: “(a) communication by spoken words, other audible means, behaviour, writing, sign or visible representation, and (b) the communication of information that is generated, processed, transmitted, received, recorded, stored or displayed by electronic means or in electronic form;”

 

This clearly covers the incident as discovered by the Victims Alliance on Discord.

What may pose an issue for survivors, however, is twofold:

 

Firstly, the Bill includes offences committed on a summary basis, imposing a Class A fine and prison sentence no longer than 12 months, and on a felony level, which will carry a maximum sentence of 7 years including any fines. Because the distinction between summary and felony offences is not clearly laid out, those accused of the most grievous forms of harassment are given a lot of leeway to bring their charges down to that of a summary offence. What may mitigate that is the discretion given to judges to consider as “aggravating factors” should the accused satisfy both “a)” AND “b) of Section 2, (as outlined above) when determining prison sentences.

 

Secondly, the provision describing any relations of those implicated by the Bill is defined as an intimate relationship”. This is a clause in need of explicit clarification in section 1 of the Bill, concerning interpretations. As it stands, the defence could argue that “intimate relationship” means an exclusive, monogamous relationship which, hypothetically, can be determined by examining dating factors such as time spent together. Once-off instances of “nudes” or “sexting” that is then disseminated online would be excluded from the law as an offence under this Bill. It would contravene the clear intentions of the act, which is to criminalise the distribution in anyway of explicit, sexual images shared without consent, otherwise known as “revenge porn”. As one could imagine, not all images shared intimately are done between those in exclusive relationships.

Thus, to ensure the full protection of victims, it is recommended that “intimate relationship” is clarified as one sexual in nature that is initiated the instant any kind of sexually explicit image is shared between one another consensually. 

 

Other terms requiring some defining include "threatening" and "offensive" as they appear in Section 14. Framing them within the context of Henchy J's judgment in relation to the right to privacy for personal development and self-actualisation of the individual would ensure deterrence of sinister behaviour that is notoriously difficult to prosecute due to ambiguity or plausible deniability; the many women and ethnic minorities uniquely experience in society. It may also cement many of the "derived rights" under Article 40.3.2 of the Irish Constitution developed by Mr Justice Gerard Hogan (now Attorney General for European Court of Justice) in a number of contemporary cases, such as the right to bodily autonomy (Fleming v Ireland) and the right to psychological integrity (Kinsella v Governor of Mountjoy Prison).

 

Another notable aspect of the Bill is the explicit inclusion of the “mens rea” (guilty mind) requirements of the offence. In common law countries, if no reference is made to the state of mind of the accused when committing the offence in a statute, the courts will presume it is there and read it into the act unless it is explicitly excluded as a requirement for prosecution. The inclusion of it here harkens to the severity of the conduct and the gravity of the crime under the law. Explicit reference to the mental element when committing a crime is made in section 3 of the Criminal Justice Act 1990 concerning capital murder (murder of a police officer, civil servant, diplomat) which includes a life sentence not less than 40 years. 

 

The Bill is otherwise commendable for its mention of people with physical, mental, or intellectual disabilities (a “disorder of the mind”). This guarantees protection of those with mental illness, trauma, and other disorders like. It is taken as an “aggravating factor”, subject to Section 3 sub-section 3 of the Bill.

 

The accused may also not be prosecuted if they had been already under the laws of another state for the same offence. While signaling the notion of double jeopardy, it appears to be an acknowledgment in the act itself that other states already have the necessary laws to combat this issue, and prevent harm to victims. 

 

Overall, it was received with bipartisan support in the Dáil. A concern raised by then Minister for Justice Charles Flanagan in the Dáil Debates highlight the exact problems that need to be dealt with in a societal basis. “…it would appear to me that less serious adolescent behaviour could result in a young person being subject to the Sex Offenders Act, which might not always be appropriate”. This “less serious adolescent behaviour” encompasses the problematic behaviour, the “lad culture”, and doctrine of “boys will be boys” that this law, and the cultural move behind it, intend to eradicate to make the world a safer place for women. 

 

The Bill is set to debated again in the Dáil this December. Minister for Justice Helen McEntee introduced amendments to it that would make the summary offences strictly liable. Therefore, whether there was an intent to cause harm or harass, those convicted would be liable for a fine of up to €5000 and 12 months in prison. While a step in the right direction, many feel this Bill has taken more time than necessary to be introduced and enacted. 

 

Moreover, the Bill itself, even if passed as it now stands, may not be enough to tackle the issue. Olivia Fletcher noted in an Irish Times Opinion Piece that preventive measures are imperative, citing the lack of prosecution under a similar law in the UK. This would involve active measures that regulate and restrict the activity of content moderators and platformers.

Evidently, Discord had only taken down the server after it had been discovered by Victims Alliance

 

Unfortunately, it may be some time before constructive debate is had regarding the role of content moderators and the responsibilities of platformers, especially in Ireland. Even if the rest of the European Union take measures towards this issue under current Directives, precedent signals that Ireland will be a few years behind the process on this. 

Ireland will answer to its issues affecting marginalised groups. But it does so retrospectively, retroactively, and too little too late, in many cases. 

 

Frontier – Current Affairs stands in solidarity with the survivors of the sexual assault stemming from the Discord Server. 

If you or anyone you know has been affected by the issues discussed in this article, below are support services to reach out to. 

 

Women’s Aid: 1800 341 900

Pieta House: 1800 247 247

Turn2me: 01116123

Rape Crisis Centre: 1800 77 88 88

Grow: 1890 474 474

Aoibhneas: 01 867 0701


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