Criminalising Non-Consensual Pornography

It is easy for large companies to put their names on a piece of paper and say they support a vulnerable community, but it is their actions that will truly tell their commitment to this ideal. However, the LGBTQ+ community’s response to the signings of this brief has been largely positive, with many detailing that they are not anti-business, but simply want to be included fairly within the workplace. Tey want to participate in the open market as much as the next person, and they want to be employed and reap all of the benefts they may sow. Being supported by major companies is a huge breakthrough, and it is a sign of positive change to come. As a citizen of the United States, I am hopeful that businesses are truly waking up to the world we live in and understand the undertaking required of them to provide a fair workplace environment for all employees. We cannot live with inconsistency, and I am hopeful that with corporations backing this prospect, we will soon see a federal law banning sexual discrimination in the workplace.

Zoe Timmons SF Law Editor’s Note: This article discusses sexual assault, which some readers may find distressing.

Te phenomenon of image-based sexual abuse, commonly referred to as “revenge porn”, is a widespread issue, and one which highlights the concerning gaps in Irish law when it comes to gendered crime. It refers to the dissemination of intimate visual materials without the consent of the person being portrayed, ofen initiated by the breakdown of a relationship where one person threatens to leak sexually explicit material of the other. Admittedly, the idea that image-based sexual abuse is confned to instances of a spiteful ex-partner, sharing private material of the other in the name of revenge, is somewhat outdated. It also fails to consider those who have been targeted by strangers or hackers whose sole interest is gaining from the exploitation of others. Regardless of the perpetrator, the means of attack tends to be the same: the material is generally shared online, amassing thousands of views on social media platforms such as Facebook and Twitter, and quickly spreads beyond the grasp of the person portrayed. Image-based sexual abuse is vicious in its scope and proliferation, in the sense that material can receive hundreds of “hits” before the person portrayed even has any knowledge of the distribution.

Tus, the term “revenge porn” is misleading and has largely been abandoned by advocates and scholars alike, as the term fails to capture the severity of the crime, trivialising and minimising the heinous act in one fell swoop. Tis can by no means be defned as pornography produced for entertainment purposes; images or videos exchanged during the course of a relationship being weaponized against someone is, by all defnitions, sexual abuse. Additionally, the phrase “revenge porn” has dubious origins. Professor Erika Rackley traces the term back to an infamous perpetrator of said crime: Hunter Moore, “the most hated man on the internet,” who, in 2010, launched a website dedicated to posting non-consensual sexually explicit material of unwitting women. In a legal sense, revenge porn represents a total invasion of privacy and violation of data protection rights; however, on a more personal level, for those subjected to this form of exploitation, it carries with it shame and stigma. Having the most private, intimate parts of one’s life broadcast online can have devastating efects: it sees people, principally young women, robbed of their autonomy, their dignity, and their rights. Te impact of such abuse can be long-lasting and far-reaching. Not only do they have to come to terms with their bodies being objectifed by strangers online, but in certain cases, personal details including names and addresses are shared alongside the images or videos. People may face cyber-bullying, fear unemployment, or even experience being ostracized from friends and family. All too frequently, the onus is placed upon the person portrayed to scour social media and various websites in a desperate attempt to contain the spread of the content. Meanwhile, there are websites that are directly profting from the non-consensual distribution of intimate material. Pornography sites such as PornHub

Sex Page 16 have even refused to remove videos which have been fagged as non-consensual. Perhaps more abhorrent are the sites designed specifcally to host such material, as mentioned earlier. Tere can be no doubt here that such a severe violation of rights is deserving of criminal punishment. Unfortunately, the law has consistently failed to punish this insidious practice. Te fgures are alarming. According to Women’s Aid, a charity dedicated to supporting women who have experienced abuse, the group received 561 disclosures of digital abuse in 2018 alone. Evidently, a large majority of these cases are not being reported to law enforcement as the law simply cannot adequately support those subjected to this kind of exploitation. Even more alarming is the lack of legislation in Ireland specifcally targeting image-based sexual abuse. Te law inevitably lags behind the ever-changing landscape of technological advancements - and this is no exception. It is clear that this is one such area where the law must catch up, and quickly.

Te current legislation in Ireland is limited in the protection it can provide, as there exists no specifc ofence for image-based sexual abuse to date. Te courts instead resort to the Non-Fatal Ofence Against the Person Act 1997 when prosecuting in such instances. Under Section 10(1) of the Act, it is an ofence for someone to harass another “by any means, including by use of the telephone... persistently following, watching, pestering, besetting or communicating with him or her...” An important thing to note is that the legislation makes no reference to image-based sexual abuse. Another major faw of the legislation is the requirement of persistence. Te law fails to take into account how rapidly content can be spread these days; with one click of a button the most private facets of a person’s life can be shared across all corners of the internet. Why should one have to be repeatedly violated until legal action can be taken? Needless to say, the legal protections currently in place are wholly insufcient. Te relevant existing legislation is being stretched by the courts to ft cases of cyber-exploitation with lackluster results. Te law’s inadequacies allow perpetrators to walk free, facing absolutely no repercussions or legal consequences for their actions, while survivors are lef to pick up the pieces. Tere have been repeated calls for reform in this area, the general consensus being that the law must work to formally criminalise the ofence of image-based sexual abuse, so that we can fnally protect and bring justice to those most vulnerable. Te proposed legislative reform comes in the way of the Harmful Communications and Digital Safety Bill 2017, which has yet to creates an ofence for In a legal sense, revenge porn be signed into law. Te Bill “distributing intimate images without consent, with intent to cause represents a total invasion of or threatening to do so, harm.” Tose liable for summary conviction a prison sentence not privacy and violation of data face a Class A fne (€5,000), exceeding twelve months, or both. If a person is they may face a fne, protection rights; however, on found guilty prima facie, or be imprisoned for up to seven years. Te Bill tection mechanism a more personal level, for those encompasses a dual pro against image-based sexu al abuse in that it also “taking or distributing subjected to this form of provides an ofence for intimate image without consent.” Afer all, the tributed without con- exploitation, it carries with it material is not only dis sent, it is ofen taken with out consent too. Tus, would herald a new shame and stigma. the enactment of this Bill era in the prevention and prosecution of cy- ber-exploitation. If we are to bolster the legal protections for victims of cyber-exploitation, we must “ensure a gender-sensitive and victim- and survivor-centric approach” in any proposed legislation, according to a report issued by the National Women’s Council of Ireland. Indeed, a reform cannot be accurately described as such without real change being implemented alongside it. Te law can be an efective tool to spur social change, and awareness of the context in which legislation is being created is essential in ensuring that the legislation itself does not further harm the survivor. We are failing those who have been targeted by cyber-exploitation at every turn, from the language we

Page 17 Sex employ, to the laws we enact – or neglect to enact. It is high time that we enact specifc legislation designed with the dual function of prosecuting the perpetrators of image-based sexual abuse, and protecting their victims.

Emma Bowie SF Law Editor’s Note: This article discusses sexual assault, which some readers may find distressing.

Te “Belfast rape trial” of 2018 undoubtedly sparked a renewed public debate over the treatment of complainants in sexual ofence cases. Criticism over aspects of the high-profle trial and its outcome prompted then-Minister for Justice Charlie Flanagan to commission a review of the available protections for vulnerable witnesses in the investigation and prosecution of sexual ofences. Te 141-page O’Malley Review, which was published by Minister McEntee last month, provides a comprehensive assessment of the current law and practices governing the treatment of witnesses in this jurisdiction. Some of its most notable recommendations include extending the right to anonymity, which currently only applies to defendants accused of rape, to accused persons in all trials for sexual assault ofences, as well as implementing a government-sponsored programme of public education on the meaning and importance of consent. However, the Review frmly rejects the suggestion that complainants in sexual ofence cases should be entitled to independent legal representation throughout trial – a proposal that gained traction in the wake of the Belfast trial, in which the complainant was subjected to an eight-day-long cross-examination from four separate legal teams. Indeed, the Review Group found this suggestion to be incompatible with Ireland’s adversarial model of criminal justice. In this jurisdiction, the accused’s constitutional right to a fair trial co-exists with the State’s obligation to prosecute criminal wrongs in the public interest – an obligation which, in the context of sexual ofence cases, encompasses a duty to vindicate the personal rights of those who have been victimised, as guaranteed by Article 40.3.1 of the Irish Constitution. Tese competing rights and obligations require the courts to consider a “triangulation of interests”: those of the accused, the victim, and the community at large. It is a delicate, and careful, balance to maintain. At present, there are two situations in which victims of sexual ofences are entitled to state-funded independent legal counsel. Firstly, complainants may be represented at the hearing of an application made by the defence under section 3 of the Criminal Law (Rape) Act 1981 to introduce evidence of a complainant’s sexual history into trial. In addition, section 19A of the Criminal Evidence Act 1992 permits complainants to be legally represented at a hearing to determine the disclosure of their counselling records to the prosecution or defence. Tese provisions are indicative of a shif, occurring over the past three decades, towards a criminal justice system which realises a victim’s procedural justice needs. Te distinct and separate identity, rights, and interests of the complainant are recognised in the provision of independent legal counsel for these evidentiary hearings. In addition to this symbolic value, the presence of separate legal representation for the complainant can minimise the risk of secondary victimisation. As Rape Crisis National Ireland (RCNI) note in their position paper, Previous Sexual History Evidence and Separate Legal Representation, many victims regard questioning related to their sexual history as an “invasive” experience, “a trauma just as devastating as the initial attack itself.” If a com

plainant’s barrister can challenge the grounds on which a defendant makes an application to adduce sexual history evidence, he or she can ensure that such evidence is admitted for its probative value alone, and not to discredit the credibility of the complainant. Furthermore, a comparative study conducted by Bacik, Maunsell, and Gogan into the laws relating to rape and their impact on victims in ffeen EU member states discovered a highly signifcant relationship to exist between the presence of a victim’s lawyer in the courtroom and the victim’s confdence when testifying, reducing animosity between victim and defence counsel. It follows that a legal representative can enable a complainant to give their best evidence, improving the overall quality of their testimony and enhancing prosecutorial efciency. Separate legal representation for complainants in sexual ofence trials appears to not only beneft the individual victim, but the criminal justice system in general. Te question that remains is: should a complainant’s right to independent legal counsel in this jurisdiction, which is currently operative in the limited circumstances of an evidentiary hearing, be extended further to include representation throughout the whole course of criminal proceedings? According to the 2014 National Rape Crisis Statistics, only 36 per cent of survivors who attended rape crisis centres reported sexual violence to a formal authority. Could the guarantee of an independent legal representative, from the reporting stage of an ofence through to trial, enhance victims’ confdence in the criminal process, and in turn improve these strikingly low reporting rates?

Te introduction of independent and continuous legal representation could indeed have this efect, but not without simultaneously encroaching on the constitutional rights of the accused. While separate legal representation for victims is the norm in France, Germany, and other similar European jurisdictions, it should be noted that victims in these legal systems are entitled to seek compensation as civil parties to criminal proceedings. Under this inquisitorial model of justice, the judge actively investigates the facts of the case, controlling the examination of evidence, as well as the questioning of witnesses in court. Hence, a victim’s legal representative may, at the judge’s discretion, call witnesses on behalf of the victim, object to questions put to the victim by the defence or prosecution, and cross-examine the defendant, all without compromising the fairness of the trial. It would be constitutionally suspect to introduce such a model into our system of adversarial justice, in which the judge’s role is that of an impartial referee. As the O’Malley Review notes, introducing a third party into criminal proceedings would “upset the well-established balance” of the bipartisan court setting. It would require the defendant to guard against two accusers, ultimately undermining their right to be aforded The question that remains is: should “equality of arms” with the state - a pro- is inherent to the right a complainant’s right to independent cedural value which to a fair trial under both Article 6 of vention of Human legal counsel in this jurisdiction, the European ConRights and Article 38.1 of the Constitu a practical point ob - - which is currently operative in the tion. Furthermore, served by RCNI in their submission to limited circumstances of an the O’Malley Review is that the introduc- tion of separate legal counsel for complain- evidentiary hearing, be extended ants would prolong trials by obliging the court to listen to the submissions and in- further to include representation terjections of three parties, rather than Moreover, ar- throughout the whole course of the traditional two. guments in favour of independent le- for complainants criminal proceedings? gal representation throughout trial often fail to acknowledge the multitude of existing safeguards under Irish law which protect victims from secondary victimisation and ensure that they are well informed of the trial process. Section 7 of the Criminal Justice (Victims of Crime) Act 2017, for example, which transposes EU Directive 2012/29 into Irish law, imposes signifcant obligations on An Garda Síochána to furnish a victim of an alleged crime on frst contact with information relating