Abigayle Pigott-Mason [Page

Conclusion

The idea of justice currently attributed to cases of rape and sexual violence is wholly inadequate, and operates to re-traumatise victims rather than restore their sense of agency, fairness, and justice. In order to remedy this, and to better care for such victims, we need to stop viewing justice as something that happens to an offender in court. Instead, we have to appreciate it for the complex and nuanced concept that it is from the perspective of survivors. This would involve moving beyond linear justice, and learning to accept that a conviction for rape is not a success if it came about through the devastation and re-traumatisation of the victim.

Access to Justice; Adolescence, Revenge Porn and a Failure to Regulate Underage Sexting.

By Abigayle Pigott-Mason, LL.M. Candidate, International Law

A collective sigh of relief could be felt by the general public as the the Harassment, Harmful Communications and Related Offences Act 2020 came into force and offered a legal refuge for individuals impacted by the non-consensual distribution of their private and personal explicit images in an act colloquially known as ‘Revenge Porn’ or ‘Image Based Sexual Abuse’ (ISBA). However, the 2020 Act failed to regulate gender and sexual-based cyber crimes against those who can be understood to be Ireland’s most vulnerable victims.

Under Section 5 (1) and (2) of the Child Trafficking and Pornography Act, 1998 there is a strict prohibition on the production and distribution of child pornography, including self-produced images. The purpose of this regulation is an obvious one and its necessity of creating airtight laws against child sexual abuse goes without saying, however, as we see a significant trend in the sharing of explicit images (sexting) between minors, the need for further regulation becomes more apparent. Employing current legislation means that the exchanging of these explicit images between minors is a criminal offense which could potentially see underaged individuals, who self-produced and distributed child pornography, be prosecuted as sex offenders.

The archaic and inflexible nature of child pornography law implies a potentially devastating impact for children and teenagers who face the widespread distribution or ‘leaking’ of their self-produced explicit images. This barrier creates difficulties for underage individuals to report incidences of revenge porn. Without specific procedure and legislation, approaches to this relatively commonplace issue vary from Garda Station to Garda Station. This opens the door for potential abuses of power and an overall inability to access justice for sexual and gender based crimes against minors.

The criminalisation of minors sharing their own explicit images was an inadvertent consequence of the legislation put in place by the Child Trafficking and Pornography Act, 1998. Legislators at the time could not have predicted or comprehended the exponential growth of the internet and online messaging platforms. However, the consequences are far from minute. Recent research from the Cyber Civil Rights Initiative found that a large percentage of Image Based Sexual Abuse victims suffered from and were exposed to sexual harassment, social isolation, and emotional distress. Therefore, without significant and tangible legal avenues available to adolescents, they are forced to address the consequences and impact of IBSA alone.

The issue of self-produced child pornography is by no means a binary or easily-solved problem. However, attempts to tackle this issue have occurred through the incorporation of human rights principles and the adaptation of principles of proportionality.

Ireland’s ratification of the UN’s Convention on the Rights of the Child has affirmed a right to freedom of expression for children under Article 13. Furthermore, Article 8 of the European Charter of Human Rights provides protection for the integrity of the person, which has been held to extend unto sexual identity. Of course, it is not beyond reasonable doubt that these rights can be limited, as was found in G v United Kingdom whereby it was held that the limitations on sexual expression and identity are a necessity so as to “[protect children] against premature sexual activity, exploitation and abuse.”

A case recently heard in the Canadian Supreme court may offer some guidance and direction for this unregulated issue. R v Sharpe, the facts of which bear little relevance to this topic, found that the prohibition of self-produced images by minors “trenches heavily on freedom of expression while adding little to the protection the law provides children.” Therefore, images depicting lawful sexual activity (parties must be over age of consent) which were held privately and consensually were permissible. The boundaries of this were also defined clearly as the court emphasized that anything beyond private viewing would incur the full force of criminal law. Although not perfect, this judgement provided somewhat of an avenue to protect Canadian teenagers who consensually and privately share explicit images.

It is important to clarify, for the nature of this argument, that this discussion only encompasses the consensual sharing of explicit images between minors and the advocacy for proper provions which will promote access to justice in case of any subsequent image based sexual abuse they may face. Any incidences beyond the sharing of explicit images between minors falls into the realms of coercion, grooming, exploitation, and paedophilia. It is held that despite our discomfort with underage sexual activity and our desire to protect our children and teenagers from any form of sexual explotation and abuse, this issue is not one which will go away on its own or through the prosecution of minors under the Child Trafficking and Pornography Act for the self-production of child pornography. Many individuals in the current generation can tell firsthand accounts of the devastating effect image based sexual abuse has had on themselves or their classmates and friends. Those affected may have faced social isolation and genuine emotional stress, having to switch schools. To cower away from this topic creates an unpredictable nature around this area of law which prevents underage victims of image based sexual violence from coming forward and accessing justice. Procedural approaches and guidelines to tackle this issue must be introduced in Garda Stations and schools across the country. Failing to regulate this area of law because of its contentious and uncomfortable nature is failing to protect our children.