We are pleased to welcome this guest post from Shane Conaty, Research Assistant, Maynooth University Department of Law
The recent surge of cases of image-based sexual abuse (IBSA) throughout Ireland and the subsequent passing of ‘Coco’s Law’ sheds light on the severe lack of education around the topic of consent, victims of sexual abuse and sexual offending in general. There is sufficient evidence to suggest that this country requires an overhaul of its education system so as to prevent not only future victims, but future offenders too. O’Brien (2019) descries Ireland’s approach to sex education as being “light years away from a modern world” where “the landscape of relationships and sexuality” has become redefined for many young Irish people. I will discuss the passing of the Harassment, Harmful Communications and Related Offences Act 2020 before going on to examine the lack of diverse education on consent and sexual offending in Irish schools and, finally, highlighting the shape of the criminal justice system’s approach to sexual offending in Ireland.
As I mentioned, the Harassment, Harmful Communications and Related Offences Act 2020, which was first proposed in 2017 by the Labour Party, finally passed in late 2020. The Bill – otherwise known as ‘Coco’s Law’ after Nicole Fox Fenlon, who was known to family and friends as ‘Coco’ and who tragically took her own life in January 2018 after persistent online abuse-was passed by the Minister for Justice Helen McEntee in December 2020 and signifies a major change in sexual offending legislation in Ireland. Article 40.3 of the Irish Constitution affords citizens their personal rights and guarantees to defend and vindicate them, however this right had not been afforded to the many victims of image-based sexual abuse. ‘Coco’s Law’ seeks to fill that gap in legislation and protect victims of online sexual abuse by attaching criminal liability to the non-consensual sharing of images of women aged 18 or over, which, up until now, had not been the case. O’Sullivan (2020) notes that the Child Trafficking and Pornography Act 1998 protected minors against the sharing and possession of their images without consent, but the same protection had not been afforded to those over 18 years of age. Tragically, at the time of her death by suicide, there was no law which protected the rights of Dara Quigley, who took her own life in 2017 after naked images of her captured by CCTV were shared by a member of An Garda Síochána.
However, more than the individual cases of Nicole Fox Fenlon and Dara Quigley, it took an avalanche of successive cases of image-based sexual abuse shared by a group of males on an online forum known as ‘Discord’ to force the update in legislation which was required. Although ‘Coco’s Law’ bridged the gap in Irish law, there are those who feel it still falls short of fully protecting victims of online sexual abuse. The main issue with the bill is that it essentially places the burden of proof on the victims themselves, which may discourage the pursuit of a prosecution or even the reporting of an incident. Section 2.2 of the Act does this by requiring that the taking or sharing of images “seriously interferes with the other person’s peace and privacy or causes alarm or distress to the other person”. Essentially, victims would need to react in a certain manner and/or prove they have been distressed by the non-consensual sharing of their image. Gallagher (2019) examines the use of the term ‘revenge porn’ as similarly problematic; this is a term often associated with the sharing of images online without consent. Gallagher makes the valid point that the crimes of murder and robbery do not have the term ‘revenge’ attached to them and that use of the term ‘revenge’ implies that the non-consensual sharing of images only constitutes an offence if the offender had a certain motive when doing so. The obvious negative implications that are often associated with victims reporting their experiences of sexual abuse, such as victim-blaming, and the shame and stigma attached, are not helped by these limitations in both the legislation and societal views of sexual offending. As McGlynn and Rackley (2017) note, “victim-blaming is rife” and that, although advice given to women by police and the media often constitutes not taking or sharing images in the first place, this advice “is clearly directed at the wrong party”. Furthermore, Coyne (2020) finds that of the young women sexually abused in Ireland (as studied by Women’s Aid) a staggering one in two of them experienced online abuse, which included the sharing of images without consent. Some of the negative effects that abuse can have on victims include anxiety, depression and isolation from family and friends (ibid) which further highlights the need to move away from traditional reactions of victim-blaming and increase protection for victims instead.
The change in attitude I refer to must be traced back to the approach to sexual education in this country so that young people are properly taught the impacts of sexual abuse-in any form-on victims and to attempt to limit future offenders as much as possible. The watered-down version of a sexual education which the vast majority of Irish school-goers receive does little to help achieve this. Sexual consent can be defined as an agreement between participants to engage in sexual activity and should be freely and clearly communicated (Rainn.org, 2020). However, consent is not typically an issue which is taught at secondary school level throughout the country, and a lot of young people only begin to receive lessons in consent when they go to university. Fegan (2019) finds that the number of students who attended consent workshops on college campuses in 2018 “skyrocketed by more than 600%, due to, in part, a number of high-profile rape cases”. Fegan also notes that learning material had been adjusted to suit students at secondary school level at the beginning of early 2020, however these plans were halted by the COVID-19 pandemic. Although it is a positive development to implement an improved curriculum in secondary schools, this development should have happened much sooner than last year. As I mentioned, many students do not develop a complete understanding of consent until university level, which, evidence would suggest, is too late. The Rape Crisis Network (2014) found that young people involved in the research launched by then Minister for Children and Youth Affairs Frances Fitzgerald, were “wholly unprepared for the task of negotiating sexual consent”. This finding therefore rendered the young people concerned as being at risk of sexual violence. A lack of education around sexual violence risks an increase in young people becoming both victims and offenders. The Union of Students in Ireland (USI) (2020) found that 29% of females and 10% of males reported non-consensual penetration by incapacitation, force or the threat of force during their time at university. Perhaps if the education students received at secondary school level had been better, there may not have been so many victims at university level.
According to O’Brien (2019) much of the sex education in Irish secondary schools is “outdated” and is over-reliant on issues of “abstinence” and the “risks and dangers” associated with being sexually active. There have long existed attitudes of avoidance and awkwardness when it comes to sex education in Ireland, with the typical lesson teaching young people to avoid the risks and dangers mentioned above, instead of encouraging healthy and safe participation. O’Beirne (2020) is critical of the education system, referring to Ireland as “backward about sex” and noting that many Irish women have a “built-in setting of shame surrounding being sexual”. One of the key recommendations made by the Rape Crisis Network (2014) in the above-mentioned study was to teach young people about consent by encouraging knowledge, skills and understanding which could be applied to a variety of relationship types. In many ways, the old-fashioned approach to sexual education in Ireland stems from the country’s attachment to its Catholic foundations. Traditional Catholic values would discourage active participation in sex, particularly at a young age or before marriage and Irish schools have traditionally always been ran under the influence of the Catholic Church, since the foundation of the Irish State post-Independence. Finn (2018) draws our attention to some examples and to the overall reluctance to openly teach Relationships and Sexuality Education (RSE) in schools. One example she provides is of a teacher who discussed the contraceptive pill with their students before informing them that she should not be discussing the topic as it “was against the ethos of the school”. In many cases where teachers are uncomfortable teaching this kind of subject matter or the school itself prohibits it, the RSE curriculum is outsourced to be taught, sometimes by Catholic groups. Discussing similar issues, Condon (2020) calls for a reform of sex education at secondary school level, given the lack of knowledge students have about topics such as termination of pregnancy and consent. Condon refers to the Objective Sex Education Bill of 2018, which was promoted by Solidarity People Before Profit, namely TD Ruth Coppinger. The bill would have guaranteed “the right of students to receive factual and objective relationships and sexuality education without regard to the characteristic spirit of the school” (ibid). Unfortunately, with the dissolution of the Dáil and Seanad in early 2020 after the general election, the bill lapsed before it could be passed. A bill such as this is the type of reform and modern development which is required to educate young people in Ireland about the importance of respecting consent and the impact of being sexually aggressive or violent and would help to reduce the number of victims and offenders throughout the country.
As I have mentioned, the issue of sexual education should not only be about protecting victims but also trying to prevent other young people becoming future offenders. Ireland’s Youth Justice system operates as a hybrid one; essentially a combination of a punitive, stricter approach and a welfare, needs-based outlook. The welfare element of the system which seeks to appreciate the needs of the offender and consider the impact of their background, “may result in perceptions that the juvenile justice system is overly lenient towards crime committed by young people…” (Joyce and Laverick, 2012: 259). The attitude that young people are treated too leniently in Ireland is often media-driven and “used to justify a perception that the behaviour of some young people is out of control…” (ibid). Many criminologists believe that a more lenient, perhaps treatment-based approach would serve to encourage the behaviour out of the juvenile and help them to understand the implications of sexual offending. O’Connor (2019: 30) for example, argues that young people are “the subject of their environment and that the criminal justice system should address the underlying causes of the child’s offending…” Youth offenders are sometimes diverted towards such schemes as the Garda Youth Diversion Programme (GYDP) or Young Person’s Probation (YPP) or other youth diversion programmes. O’Halloran (2019) notes that 7, 894 cases referred to a youth diversion programme were not properly investigated. These involved 3,500 children under the age of 18. O’Halloran notes that Fianna Fail TD James O’Callaghan stressed that both the victims of these cases and the 3,500 offenders involved were let down by the system. As well as protecting victims, he feels youth offenders should all be given the chance to turn away from crime (ibid).
As I mentioned, some criminologists have suggested medical or behavioural treatment would be more beneficial to young sexual offenders in terms of diverting them away from crime. The Northside Inter Agency Project is an organisation which treats juvenile sexual offenders and facilitates various treatment options which include group therapy, assessment and weekly groups for parents and carers. Their main aim is to “prevent further sexual abuse by early intervention” (2009: 4). Alan Corbett (2008), writing for The National Organisation for the Treatment of Abusers (NOTA) alludes to a lack of treatment services for young sexual offenders, with more services provided to adult sexual offenders. Corbett (2008: 46) suggests Restorative Justice, a growing alternative to typical Criminal Justice structures, as “a useful addition…the person who was abused has the opportunity to ask questions, express their views and receive an apology…” A Restorative Justice approach would allow the victim to have their voice heard-which is not always the case in court settings-and allow the offender to potentially learn from the impact of what they have done and accept responsibility for the sexual offence. Alternative approaches such as therapy, treatment or Restorative Justice are suggested in Criminology partly due to research “which indicates that the level of reconviction by sex offenders is lower than for most criminal offenders” (Justice.ie, 2009: 19). The recidivism rate for juvenile sexual offenders tends to be quite low; in fact, if juveniles reoffend, they tend to do so non-sexually.
To return to the core issue of this piece, there is a lack of education in relation to consent and the impact of not respecting its importance. According to the 2017 annual report by the Committee Appointed to Monitor the Effectiveness of the Diversion Programme, there were 59 cases of possession of child pornography in Ireland in 2017 (Irish Youth Justice Service). Of those 59, 20 were consensual peer to peer sharing of intimate images before they were shared more widely without consent. The report notes that the majority of those 20 youth offenders were not aware that by sharing an intimate image without consent, they were committing an offence. Had they been aware of this, the number of offences may have fallen. Once again, the importance of education for all young people is highlighted; awareness of the impact of all types of sexual offending must be raised and the number of juvenile sexual offenders should fall, across the country. Moreover, victims of all forms of sexual offending, having recently been afforded more protection in the form of ‘Coco’s Law’, should be further protected and have their voices heard. As McGlynn and Rackley (2017: 45) suggest, Ireland has the opportunity to “take the best of the international mechanisms” and progress its sexual education in a modern and forward-thinking manner.
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Coyne, E. (2020) ‘One in two young women who experienced relationship abuse had intimate images shared without consent-Women’s Aid’, Irish Independent, 25 November. Available at: independent.ie/irish-news/news/one-in-two-young-women-who-experienced-relationship-abuse-had-intimate-images-shared-wtihout-consent-womens-aid-3979. (Accessed 11January 2021).
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