DIFFICULTIES IN PUNISHING ‘upskirting’ burst into the public consciousness when Gina Martin started a successful campaign to introduce a new offence in England and Wales.
Martin’s desire to reform the law arose from her 2017 experience of being surreptitiously photographed. When she complained she was told that police could not prosecute the perpetrator, because of how the various offences were defined.
Currently, Irish law around image-based sexual abuse is the same as it was in England and Wales before Martin’s campaign.
Image-based sexual abuse is the umbrella term used for various harmful activities where one party takes or shares intimate images of another without that other’s consent.
This abuse can be perpetrated by someone the victim knows, like an ex-partner uploading an intimate image or by complete strangers such as up-skirting or hackers stealing personal images.
The Irish offence of harassment can rarely be utilised to prosecute image-based sexual abuse. The law on harassment requires the accused’s behaviour to be a “persistent” interference with the peace and privacy of another. But in the case of the taking or uploading of an intimate image without consent, this is often only done once.
So the proposed new legislation is to be welcomed and if passed it will mean that gardaí can take prosecutions for ‘upskirting’ and ‘revenge porn’.
However, it is worth noting that the Law Reform Commission also advised that stalking should be defined as a crime. Language matters and specifying stalking as a crime in the UK resulted in an increase in prosecutions there.
The Proposed Changes
The media attention given to Martin’s case may be one of the factors that prompted the Irish government to move image-based sexual abuse up the legislative agenda.
They have agreed to progress Labour TD Brendan Howlin’s Harassment, Harmful Communications and Related Offences Bill 2017, which he introduced in May 2017 but which has stalled since January 2018.
This Bill, informed in part by recommendations contained in the Law Reform Commission’s 2016 Report on Harmful Communications and Digital Safety, seeks to better recognise the wrongfulness of image-based sexual abuse by placing the harm suffered by the victim front and centre.
It does so in two ways. First, it proposes the creation of a new offence of distributing an intimate image of another without their consent.
This criminalises one-off incidents of image-based sexual abuse and closes the gap in our current law.
It recognises the harm caused to the victim’s bodily autonomy and privacy and the focus is on his or her lack of consent. So even if the person consented to the photo being taken – sharing it without their consent will be a crime.
Second, in the proposed redefinition of the harassment offence (which will still require persistent behaviour) the Court is asked to consider if there is or was an intimate relationship between the perpetrator and the victim.
If the answer is yes, then the Court can regard the misuse of personal information obtained because of the intimate relationship, or the use of any recording equipment or software to monitor the victim, as aggravating factors and increase the sentence imposed.
This attention to the context in which the harassing behaviour occurred is important because it recognises that the breach of trust aggravates the harm caused to the victim.
The focus on covert surveillance also fits with the recent introduction of the offence of coercive control, and recognises the continuum of behaviours that constitute abuse.
By emphasising context and consent, these offences will contribute to the criminal law’s ongoing educative function regarding sexual offending.
The criminal law not only prosecutes those of us who engage in legally defined wrongs but through those definitions and prosecutions it also educates all of us on the parameters of acceptable behaviour.
This leads to a criticism of the proposed reforms – that they do not include the Law Reform Commission’s recommendation to create a new and separate offence of stalking.
A new stalking offence
Although the harassment offence was intended to criminalise stalking, those that advocate for a separate offence of stalking note that there is a qualitative difference between harassment and stalking.
This difference arises from the nature of the harm caused to the victim.
Stalking typically involves an intense obsession or fixation on the part of the stalker, an obsession that has been described as creating an unwanted emotional intimacy between the stalker and the victim. This makes the experience of being stalked worse than being harassed.
In Scotland, such arguments convinced legislators to introduce a new and separate stalking offence in 2010. This new offence, which uses the word stalking, and gives examples of stalking behaviours has led to a dramatic increase in the number of prosecutions for harassment and stalking.
In the 10-year period before the new stalking offence was introduced, there were 70 harassment prosecutions. Within four months of the new offence being introduced, there were 150 prosecutions.
When England and Wales followed suit in 2012, prosecutions for stalking and harassment increased by 22%. Reports of harassment and stalking to the police have trebled between 2014 and 2018.
It is unlikely that there was a sudden increase in stalking and harassment in either of these jurisdictions after new stalking offences were introduced.
The figures suggest that victims of stalking did not recognise the harassment offences as applying to the behaviour that they were experiencing so they did not report it.
This demonstrates that the criminal law will not perform its educative function if those subject to it do not understand the language being used.
It also suggests that the police may not have recognised stalking behaviour as falling into the harassment offence.
Indeed, despite initial evidence that stalking was being taken seriously by police in England and Wales, concerns have been expressed recently that between 2014 and 2018 there has been a significant drop in prosecutions being taken. This shows us that reforming the law is also not enough.
The police need access to repeated training to remind them of the harm that image-based sexual abuse causes and resources to ensure that they can apply that law.
So in conclusion, the Harassment, Harmful Communications and Related Offences Bill 2017, if enacted will be an important first step in responding to image-based sexual violence – but it is not the end of the journey.
Dr Catherine O’Sullivan is a lecturer in the Law School, University College Cork. Her main teaching and research interests are in the areas of criminal law and criminology.
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