Thursday, 17 December 2020
Harassment, Harmful Communications and Related Offences Bill 2017: Report and Final Stages
This group of amendments relates to section 3, which deals with the distribution and publication of intimate images without consent. Amendment No. 8 attempts to include the concept of selling, transmitting, making available or advertising an intimate image without consent. These behaviours are already covered by the concepts of distributing or publishing, with the exception, perhaps, of the notion of making an intimate image available. I am not sure what is intended by it, but it appears to be vague and, as such, is not appropriate for inclusion in a criminal offence. I cannot accept the amendment for that reason.
Amendment No. 9 is technically flawed as it refers not to an intimate image but to content, which is not defined. Furthermore, it does not appear to delete the original wording in section 3(1) and as such would make no sense if accepted.
On amendments Nos. 10 and 11, the Minister outlined on Committee that she does not support the criminalisation of receiving or retention of intimate images in that we have provided for offences, with harsh penalties, where such images are distributed or published or where somebody threatens to do so. It is unclear what "holding" means in this context and it is not defined. I am concerned about the language used in amendment No. 11, in particular the use of the words "through coercion". As rightly pointed out by Deputy Howlin, section 3 covers the threat to distribute where anybody is holding an image and that person is prepared to use it in any unlawful manner. It is not clear whether it is intended that the person who commits the offence is coercing another to distribute or publish the intimate image or if he or she is doing so by reason of having been coerced by another to do so. I think the intention behind the amendment is to criminalise a person for coercing another, not for being coerced. However, this is not clear and could lead to unintended consequences in regard to the behaviour sought to be criminalised. I appreciate the intention but I cannot accept these amendments.
On Committee Stage, the Minister outlined her position in regard to the offences being treated as offences for the purpose of the Sex Offenders Act 2001. The offence is intended to deal with harm caused to a victim and, as the case may be, an intention to cause harm on the part of a defendant. This is distinguishable from other offences on the Statute Book to which the provisions of the 2001 Act apply which are aimed at dealing with the sexual motivations of an offender and of potential future risk to the public. Therefore, I cannot accept amendment No. 12.
In regard to the concerns raised in regard to this group of amendments and other amendments, under section 13 there is a commitment to carry out a review within three years of the operation of the Act. As such, the legislation will be actively under consideration.