Friday, 18 December 2020
Harassment, Harmful Communications and Related Offences Bill 2017: Committee and Remaining Stages
I move amendment No. 5:
In page 4, line 5, to delete “and” and substitute “or”.
On the surface, amendments Nos. 5 to 8, inclusive, all relate to small changes to the wording of section 2 on the distribution of intimate images. However, they are important in that the overall intent is to make the legal threshold at which distribution becomes a crime more accessible and easier to prove for the victims of these offences. I am grateful to the National Observatory on Violence Against Women for calling for these important changes. As the Minister of State will be aware, we are currently in the process of reviewing many State processes and laws, as they relate to sexual offences, in particular the experience of victims moving through the justice system and how they are treated as individuals and on a system-wide basis. The most prominent example of this has been the recent publication of the report by the Department of Justice's working group chaired by Tom O'Malley, which has made a number of very significant recommendations and proposals for reform to improve the deficiencies identified, in particular in how victims of sexual assault are treated in the courtroom. I welcome these moves, as they are important. These amendments are tabled in that same spirit. I am concerned that every time an offence provision is qualified with a largely subjective word like "seriously", we are shifting the legal burden of proof from the perpetrator of the offence to the victim. I hope that we would have learnt from the O'Malley process and our obligations under the Istanbul Convention that this is bad practice and all legislation must be drafted in cognisance of the fact. I propose amendments Nos. 6 and 8 to rectify the issue in the Bill.
Amendment No. 5 would replace the word "and" with the word "or" to create two distinct offences, first for the publishing of an intimate image without the person's consent and, second, doing so with the intent to cause harm. I believe that requiring a victim to simultaneously demonstrate both offences is too high a legal bar and they should be decoupled from each other. Amendments Nos. 7 and 10 would have a similar effect.