Image-based sexual abuse: Law alone cannot solve the problem

Educating people about what consent means and empowering them to speak up when abuse occurs is equally important, says Catherine O'Sullivan lecturer in criminal law and Criminology at UCC 

The news that tens of thousands of sexual images of girls and women have been shared without their consent may provide the final push to get legislation passed. Picture: iStock

A bill’s journey from its introduction by a TD or senator before the Oireachtas to its enactment as legislation is frequently protracted, sometimes stymied and often needs a push or two to get it over the line.

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.

The Discord files have given fresh impetus to progress the bill, and Minister McEntee announced on November 20 that she would bring proposals to the cabinet tomorrow to help fast-track it in advance of its consideration by the Justice Committee on December 1.

The new offence proposed in the 2017 bill has much to commend it. If it becomes law, it will criminalise the harm that is colloquially referred to as “revenge porn”, a problematic term best avoided because it can obscure the perpetrator and allow for victim-blaming. 

As Women’s Aid have repeatedly stated, “It’s not revenge, it’s not porn. It is abuse.”

It will also capture stranger-perpetrated upskirt/downblouse images and instances where modified images of the victim are created by the perpetrator. 

The latter form of image-based sexual abuse typically occurs when the victim’s image is photoshopped onto pornographic ones, creating the impression that the image is of the victim. 

The offence will also criminalise the taking and/or sharing of images of those whose consent is invalid because they were unable to protect themselves from sexual exploitation.

Another positive is that the bill classifies the wrongdoing as a sexual offence. It provides that anyone convicted of the offence and sentenced to a term of imprisonment will be subject to the provisions of the Sex Offender Act 2001.

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.

Another positive is that the bill classifies the wrongdoing as a sexual offence. 

It provides that anyone convicted of the offence and sentenced to a term of imprisonment will be subject to the provisions of the Sex Offender Act 2001. 

This matters because the classification of the offence as a sexual one carries with it anonymity protections for the person alleging the crime, although these can be removed in certain contexts. 

The characterisation of an equivalent offence in England and Wales as a communication offence has meant that victims have been deterred from reporting the crime for fear of drawing further attention to images that may still be circulating.

Now to the negatives. The first is the naming of the offence as “Distributing, etc., intimate image without consent”. The phrase “intimate image” misrepresents what is being criminalised. 

“Intimate” is a cosy word and seems to confine the production of these images to a relationship context while the offence is broader than this. 

This matters because victims might not realise that the terms of the offence apply to them and therefore will not report illegal behaviour to the gardaí.

Second, the offence requires not only that the image be taken/shared without the victim-survivor’s consent but also that this taking/sharing “seriously interferes with the peace and privacy of the other person or causes alarm, distress or harm to the other person”.

As McGlynn and Rackley, leading academics in England in the area of image-based sexual abuse explain, this seems to require victim-survivors to react in a particular way — they must be upset not (legitimately) angry. 

It also would seem to require victim-survivors to provide evidence of the nature of the harm they suffered and could make them reluctant to be involved in a prosecution.

Finally, it must be recognised that the problem of image-based sexual abuse cannot be solved by the criminal law alone. 

It exists in a societal context and if that context is not altered, the deterrent value of any offence is reduced.

In its consideration of the issue, the Law Reform Commission recommended the establishment of a Digital Safety Commissioner Office. 

One of the functions of this office would be to develop, in conjunction with the Department of Education and the Department of Children and Youth Affairs, material to teach young people how to be safe and responsible digital citizens. 

Such education, particularly if tied to more comprehensive relationship and sexuality education with a focus on consent, dignity and respect, could pay huge dividends in the prevention of image-based sexual abuse and sexual violence generally. 

Framing the proposed offence around consent is important, but so too is educating people about what that means and empowering them to speak up when they see abuse occur.

Catherine O’Sullivan is a lecturer in Criminal Law and Criminology at UCC