The Minister for Justice emerged from Government buildings yesterday afternoon to make an announcement which may have struck some people as a little strange:
— Seán Defoe (@SeanDefoe) April 21, 2022
Our goal is clear – zero tolerance of domestic, sexual and gender based violence.
New standalone offences of stalking and non fatal strangulation will make our laws clearer and stronger.
— Helen McEntee TD (@HMcEntee) April 21, 2022
Most people will, of course, welcome the news that stalking and strangulation without killing are to be made crimes. But many of us might wonder whether they were actually legal to begin with?
After all, the Irish statute books have three relevant existing offences: Assault Causing Harm, Assault Causing Serious Harm, and Unlawful Harassment. Why, then, do we need new laws?
Let’s deal with the stalking issue first. Here is what the text of the existing law against harassment says:
Any person who, without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence.
Why, then, do we need another law? What form of stalking behaviour is presently legal, which requires banning?
And what of the new law about strangulation? Here’s what the existing law against Assault Causing Serious Harm says:
A person who intentionally or recklessly causes serious harm to another shall be guilty of an offence.
The key word there is “recklessly” – which would, of course, cover something like sexual choking leading to injury, which is the presumed intent of the new law. Some campaigners in the UK have sought a new law in this area because in the UK, the fact that choking was sometimes consensual at first was considered a defence. But that is not the case here, lawyers tell me. Nor is it an assertion made by the Minister in justifying the new law.
Here indeed is what the Minister herself says about the point of the new law:
“We know that non-fatal strangulation can be an indication of future, lethal violence and is a risk factor for homicides against women in the home.
“Strangulation is highly prevalent in domestic abuse and frequently used as a tool of coercion, often accompanied by threats to kill.
“While choking and strangling are already illegal, it is hoped that creating this new offence will encourage victims to come forward and report what has happened to them.”
In other words, the crime of choking is already illegal, and this law is being passed primarily for the purpose of raising awareness about the crime of choking. It’s effectively using legislation as an awareness-raising tool. Couldn’t they have just run a televised ad campaign?
As issues go, this isn’t the most important. Perhaps there is no harm in emphasising how seriously the state takes stalking and choking – both of which are crimes perpetrated mainly against women. But it is important, too, to see through the façade and observe the purpose of the laws: They are not designed to increase arrests or give gardai new tools. They are simply designed to allow the Minister to “raise awareness” of crimes by highlighting them specifically in legislation. This is action, then, with a very dubious purpose.
A few days ago, I wrote that the Minister for Justice appears to have a habit of trying to wish things into reality – the more times she says that Ireland is compassionate and caring, the more she seems to hope it will become real. There is, by contrast, a real lack of concrete and meaningful action to prevent crimes. This is a good example of that phenomenon.
Once again, we have what amounts to a PR campaign that will not provide a single extra garda or increase a single sentence. This legislation effectively amounts to an opportunity for the Minister for Justice to go on television and talk about how strongly she disapproves of violence against women. At the same time, the legislation does not actually do anything concrete to reduce or punish violence against women. It is, in the truest sense, virtue signalling made law.
After all, we are now going to devote significant Dáil time to banning things that are already illegal. Most of that Dáil time will be given over to politicians who will read prepared speeches about how much they personally deplore violence against women, and how vital and overdue it is that Ireland is “taking action in this area”. There will be press releases. There might even be some watery eyes and rounds of applause as the legislation is passed. And when it’s all over, the things that were illegal beforehand will be just as illegal afterwards. The entire thing is primarily performative.
This – in this writer’s opinion – is not governing. If we want to address violence against women, for example, might it not be worthwhile to think about concrete actions we could take against those Irish based companies who make good money from hosting, on their servers, very violent pornography in which women are choked and beaten and degraded for the entertainment of the viewer? That material, of course, remains perfectly legal to view in Ireland, and perfectly legal to publish. But of course, doing anything about that might make the Minister seem like a bit of a prude, or a bit old fashioned, which wouldn’t be the right image at all. It’s all so very performative.