The Harassment, Harmful Communications and Related Offences Bill 2017 is a case in point, the final push likely being the news that tens of thousands of sexual images of girls and women have been shared on Discord, an online group chat platform, without their consent.
While the posting and possession of some of these images is illegal under the Child Trafficking and Pornography Act 1998 because the girls whose images were shared were under the age of 18, no criminal liability attaches for the non-consensual posting and sharing of images of women aged 18 and over.
This gap in the law has led to a surge in signatures to a change.org petition, created four months ago by Megan Sims, to make image-based sexual abuse a criminal offence.
At the time of writing, nearly 60,000 people have signed the petition which was prompted by Ms Sims’ experience of image-based sexual abuse in 2016 and by the 2017 suicide of Dara Quigley after naked CCTV images of her went viral having been shared by a member of An Garda Síochána on WhatsApp.
Initially introduced in May 2017 following a 2016 Law Reform Commission Report, Brendan Howlin’s 2017 Bill sought to reform the offence of harassment (section 10 of the Non-Fatal Offences Against the Person Act 1997) and to introduce a new offence that would criminalise the non-consensual creation, distribution or publication of an intimate image or the threat to do so.
The bill seemed destined to stay in legislative limbo when it lapsed following the May 2019 election.
However, in August 2020 Minister for Justice Helen McEntee acknowledged Ms Sims’ change.org petition and promised to prioritise the passage of the 2017 Bill by the end of 2020.
This commitment was repeated to Jackie Fox in September 2020 when she submitted a petition signed by more than 33,000 people to criminalise cyberbullying following the suicide of her daughter Nicole.
Consent, defined as “the agreement by choice of a person who has the freedom and capacity to make that choice”, is at the core of this offence.
By framing the offence around the victim’s lack of consent, the offence seeks to foreclose victim-blaming by directing attention to the perpetrator.
It is not the consensual taking of intimate images that is wrong, it is the sharing of them without the consent of the victim-survivor.
This focus on consent also recognises the right of the victim to bodily autonomy and privacy, constitutional rights that the State is arguably not currently defending and vindicating as far as practicable as required by Article 40.3.