Tackling Image-Based Sexual Crime: “Refuse to Stay Quiet”

This week marks the end of the United Nations’ 16 Days of Activism against Gender-Based Violence. 16 Days is an annual international campaign which kicked off on the 25th of November, the International Day for the Elimination of Violence against Women, and runs until the 10th of December, Human Rights Day. It was started by activists at the inaugural Women’s Global Leadership Institute in 1991 and continues to be coordinated each year by the Centre for Women’s Global Leadership.16 Days has a more pronounced significance this year as the UN recently reported that the Covid-19 pandemic has seen all types of violence against women and girls, particularly domestic violence, intensified.Earlier this month, it came to light that tens of thousands of private images of Irish women and girls were shared on the online messaging platform Discord without their consent.Discord identified that approximately 500 men were involved in sharing the images, some of which were of girls who were underage. While the possession and sharing of intimate images of girls under the age of 18 is illegal under the Child Trafficking and Pornography Act 1998, it is not currently a crime in Ireland to post non-consensual intimate images of women aged 18 and over.In response to the incident, the Minister for Justice Helen McEntee spoke out on Twitter saying:“I know the recent leak of tens of thousands of intimate images of Irish women has caused so much upset and anger.”“I share that anger.” She addedThe Minister then went on to commit that anyone who shares intimate images without consent “will face serious criminal sanctions.” The proposed legislation which will criminalise this image based sexual abuse, The Harassment, Harmful Communications and Related Offences Bill was brought before the Oireachtas Justice Committee in the Dáil last week and the government is hopeful it will be passed into law before the end of the year. The Bill has been in something of a legislative limbo for years now, having been first introduced by Brendan Howlin in May 2017 following a 2016 Law Reform Commission Report. It seeks to revolutionise existing harassment laws, to, as James Lawless put it during an interview on Newstalk on December 1st, “move them into the Internet age.” As our lives move increasingly online, behaviour that makes the digital space unsafe for women must be eradicated to ensure their effective participation in all facets of life.The renewed attention surrounding the criminalisation of image based sexual abuse and cyberbullying can be credited to the tireless work of female activists, Megan Sims, and Jackie Fox, to name just two. Ms Sims launched her change.org petition ‘Make revenge porn a criminal offence in Ireland’ in July and at the time of writing it has amassed over 75,000 signatures, having recently gone viral. Ms Sims was a victim of image based sexual abuse in 2016 when she was just 19 years old. In her petition, Ms Sims also references Dara Quigley, a young Irish journalist who died by suicide in 2017 after a member of An Garda Siochána shared intimate footage of her online. The images were viewed more than 100,000 times.Ms Fox has been campaigning for the introduction of criminal sanctions for online bullying and harassment since 2018 when her daughter Nicole Fox Fenlon took her own life after facing years of continuous online abuse. A petition presented by Ms Fox at the Dáil in September had over 33,000 signatures and at the time, Minister McEntee promised her that the Harmful Communications Bill or Coco’s Law, named after Nicole, would be in place by the end of year.Women’s Aid held a seminar on the 25th of November marking the International Day for the Elimination of Violence Against Women. Discussions surrounding image based sexual abuse or “revenge porn”, as it is known colloquially, formed a significant part of the day with calls made by the organisation for the introduction of both criminal and civil legislation targeting image based sexual abuse. Senator Ivana Bacik, speaking at the event, stressed the need that such legislation “match the reality that women and girls experience.”The 2017 Bill can be commended on a lot of grounds. Not only does it criminalise the non-consensual sharing of intimate images, but also the taking of non-consensual images, known as upskirting and downblousing, as well as instances where a victim’s image is photoshopped onto a pornographic one, creating the illusion that said image is of the victim. Dr. Catherine O’Sullivan, lecturer in Criminology and Criminal Law in UCC writes in the Irish Examiner that, “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.”Dr. O’ Sullivan also welcomes the central role of consent in the new 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” she wrote. Adding to this, Dr. O’Sullivan notes that the focus on consent “also recognises the right of the victim to bodily autonomy and privacy”, a right which is guaranteed to each citizen under Article 40.3 of the Constitution.While the fast-tracking of the 2017 Bill through the Dáil is embraced and much needed, Professor Clare McGlynn, during the Women’s Aid event, expressed concern that the core element of consent and indeed, non-consent, could be eclipsed by standards of proof under the legislation, as it is currently proposed. The offence requires that the taking/sharing of the image without consent “seriously interferes with the peace and privacy of the other person or causes alarm, distress or harm to the other person.” Professors Rackley and McGlynn, the two leading experts in this area, point out that this proposed provision seems to require a specific reaction on the part of the victim, and that it is “a far more restrictive provision that is provided for in most other jurisdictions.” In Scotland for example, it is sufficient that the perpetrator merely intended to cause fear, alarm or distress. The provision also begs the question, how serious an interference is serious enough?Dr. O’Sullivan, writing in the Irish Examiner points out that the requirement of victims “to provide evidence of the nature of the harm they suffered could make them reluctant to be involved in a prosecution.” It is hoped that the government will take advantage of the Committee Stage to strengthen the existing proposals and make it as straightforward as possible for women to bring their abusers to justice.Addressing the civil side of things will be the Online Safety and Media Regulation Bill 2019. This Bill will provide non-criminal remedies for those who have seen their images shared online without their consent. The Bill will require platforms like Snapchat, Facebook and Twitter to take down intimate images posted without consent. Once enacted, the Bill will also create the office of an Online Safety Commissioner which will oversee the regulation of the audiovisual sector, including social media platforms, in Ireland.Criminal and civil laws are just the beginning, “we need a culture change”, Cork Sexual Violence Centre Founder Mary Crilly told University Express. Even how we refer to image based sexual crimes can be problematic. Women’s Aid has spoken out time and again, against the use of the term “revenge porn.” Addressing students at a recent UCC Law Society House Meeting, Women’s Aid CEO Sarah Benson explained that the term erroneously implies that the victim “did something for which they are somehow deserving of revenge”, and that these images are porn, which is also incorrect. The term diminishes what the experience actually is, abuse.Change is within our reach. Initiatives like the UCC Bystander Intervention Programme are tackling harmful behaviours such as image based sexual crime through education and empowerment. First piloted in 2016, the programme covers the core concepts of consent, sexual assault, rape and abusive relationships and gives students the necessary skills to safely intervene in a variety of sexually abusive situations.Dr. Catherine O’Sullivan, who assisted Professor Louise Crowley in developing the Programme, spoke to University Express, explaining how the Programme can be used to tackle image-based sexual abuse,“Although the non-consensual sharing of images is a harm that is done to women and men, women are more frequently the target than men because women are more likely to be judged for their exercise of sexual autonomy and/or their sexual autonomy is secondary to the titillation of the male perpetrator/viewer” she said.“The Bystander programme is very relevant to issues such as this because the non-consensual sharing of images is part of a continuum of a lack of respect for women’s sexual autonomy, and if the perpetrator had been called out by friends and family at earlier stages when he made inappropriate jokes about women or expressed approval for images such as this, then it is possible that he would not have progressed to the stage of distributing such images.”“The only reason we know about these images is because someone, presumably a man, who received them and was supposed to stay quiet didn’t. He reported them to Discord. We need more men and women like him and the Bystander programme is a means of achieving this.”“When more of us refuse to stay quiet, we begin to change society.”The past few years have seen a significant transformation of the Irish legislative landscape surrounding women’s rights, with a statutory definition of consent being provided for the first time ever in the Criminal Law (Sexual Offences) Act 2017, and the creation of the offence of coercive control under the Domestic Violence Act 2018, the first conviction under which took place this year. The enactment of the Harassment, Harmful Communications and Related Offences Bill and the Online Safety and Media Regulation Bill will make the physical world and digital realm a safer place for women but we need more than just laws to make real, tangible changes in society. Mary Crilly in a message to the students of UCC says:“Remember how strong you are and how powerful you are and you can do anything.” We cannot let complacency set it once these laws are enacted. The true work is just beginning. From our group chats to our lecture halls we must make clear what we do and do not stand for.-Keep the conversation going.