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Courts will be able to issue civil restraining orders against stalkers as part of a new Bill from the Minister for Justice, Helen McEntee. These orders do not require a criminal prosecution and are easier for victims to obtain.
Minister McEntee has secured government approval for the Criminal Justice (Miscellaneous Provisions) Bill 2022. The Bill will now be brought before the Oireachtas and is expected to become law in the Autumn.
The wide-ranging Bill will also increase the maximum sentence for assault causing harm from five years to 10 years, allow life sentences for conspiracy to murder, make stalking and non-fatal strangulation standalone offences, and expand the existing harassment offence.
Minister McEntee said:
"I launched Zero Tolerance, our new national Strategy on domestic, sexual and gender-based violence last month and a key aspect is reforming criminal law in this area, and this legislation is timely and important.
"Stalking is an extremely serious and intrusive crime that can cause devastating psychological distress.
"The evidence is that when a specific stalking offence is introduced, it leads to a greater awareness of the crime and an increase in the number of crimes reported and ultimately prosecuted – so we are doing that.
"But this legislation also includes an important system of civil orders to restrain stalking behaviour and protect victims. These orders allow earlier intervention and do not require a criminal prosecution.
"The new orders also go further than what is possible under domestic violence legislation in terms of who an order can be made against (that is, not just close relationships) and the kind of conduct that can be prohibited by the court.
"The aim of the Strategy is to bring about changes in attitudes and in systems to ensure there is zero tolerance in Irish society for domestic, sexual and gender-based violence, and I believe this legislation is a significant step.”
The new system of civil orders is important as these target stalking at an early stage, before it progresses to the level of seriousness seen in some of the criminal convictions.
The changes to the harassment offence are also important as it has been significantly expanded to cover any persistent conduct that seriously interferes with a person’s peace and privacy, or causes alarm, distress of harm.
The new standalone stalking offence is likely to be the most serious charge. This new offence covers any conduct that either puts the victim in fear of violence or causes the victim serious alarm and distress that has a substantial adverse impact on their usual day-to-day activities. A wide list of possible acts is included - such as following, communicating, impersonating, interfering with property or pets etc. However, this list is not exhaustive.
The new stalking offence can be committed by a single act – it does not need to be persistent or repeated. It also covers situations where the person finds out about some or all of the stalking acts afterwards.
The maximum penalty for this offence will be 10 years.
The Bill also provides for the creation of two standalone offences for non-fatal strangulation.
The first provides that where an assault involves strangulation it has, without any other harm being shown, the same penalties as an assault causing harm offence, which is being increased to 10 years.
The second offence provides that where the strangulation caused serious harm, the maximum penalty is life imprisonment. This is similar to the existing offence of causing serious harm.
International research suggests that a history of strangulation presents a seven fold increase in the risk of death. Internationally, strangulation is the second-most common method of killing in adult female homicides (after stabbing).
Research also highlights that non-fatal strangulation is frequently used as a tool of coercion, often accompanied by threats to kill.
Minister McEntee added:
"Non-fatal strangulation is a common feature of domestic abuse and is a strong predictor of further violent offences. It can also be difficult to prosecute at an appropriate level of seriousness where there is no visible injury.
"The Garda Commissioner has specifically requested the introduction of a new offence, and it also reflects recent international practice. This proposal will help ensure that assaults involving strangulation are properly identified, charged and punished.”
The Criminal Justice (Miscellaneous Provisions) Bill 2022 will increase the maximum sentence from five years to 10 years for the offence of assault causing harm.
Assault causing harm is one of the most common charges in cases of domestic abuse. While a life sentence can be imposed for an assault causing serious harm, this only covers a very limited subset of the worst assaults.
Minister McEntee added:
"Most assaults can only be prosecuted at the lower levels, especially where the victim has fully or mostly recovered.
"Even where a judge considers the offence as among the most serious, they are limited in their sentencing to five years, and may have to reduce that further to reflect mitigating factors such as a guilty plea.”
Other provisions in the Bill include amendments to the offence of conspiracy to murder which ensures that a penalty of up to a life sentence may be imposed.
Minister McEntee concluded:
"The creation of this new offence and the imposition of a life sentence for it underlines the government’s commitment to tackling serious crime and will ensure that An Garda Síochána and our Courts have the tools they need to take firm and decisive action to deal with our most serious criminals.”
The new stalking offence covers any conduct that either (a) puts the victim in fear of violence (to either the person or another connected person) or (b) causes the victim serious alarm and distress that has a substantial adverse impact on their usual day-to-day activities.
A wide list of possible acts is included - such as following, communicating, impersonating, interfering with property or pets. However, this list is not exhaustive – any form of conduct can be the basis of the offence if it causes the effects in the previous point.
The offence can be committed by a single act – it does not need to be persistent or repeated. It also covers situations where the person finds out about some or all of the stalking acts afterwards. It does not require the conduct to be proven to be ‘unwanted’.
The offence is subject to a test that the conduct is such that a reasonable person would realise that it would have the consequences set out.
The revised harassment offence is expanded to cover any persistent conduct (that is, not just following, watching) causing a serious interference with peace and privacy, or alarm, distress or harm.
For both stalking and harassment, a court must consider as an aggravating factor (and increase the sentence) that the person has previously been convicted of offences against the victim.
For an order to be made, the court must be satisfied that:
Relevant conduct is defined in terms of what is likely to cause (a) a fear of violence or (b) serious alarm or distress that has a substantial adverse effect on a person’s day to day activities. It uses a similar list of acts to that included in the criminal offence.
It is not necessarily required to prove any effect on the applicant, or any intention on behalf of the respondent – an order can simply be based on the conduct having occurred.
When making an order the Court may prohibit the respondent from engaging in the behaviour which justified making the order, and also in other forms of behaviour – for example: following or communicating with the applicant.
These orders differ from those contained in section 10 of the Act as it stands, which cover situations where a prosecution has actually taken place. The new orders also go further than what is possible under domestic violence legislation in terms of who an order can be made against (that is, not just close relationships) and the kind of conduct that can be prohibited by the court.
Breach of an order is, in itself, a criminal offence carrying a maximum of one year imprisonment. It may also be a basis for a criminal prosecution for a stalking or harassment offence.
The proposals on non-fatal strangulation will ensure assaults involving strangulation or choking can be prosecuted as a serious offence, even if there are no observable injuries.
Two new offences will be created. The first provides that where an assault involves strangulation it has, without any specific or other harm being shown, the same penalties as an assault causing harm offence.
The second offence provides that where the strangulation caused serious harm, the maximum penalty is life imprisonment. This is similar to the existing offence of causing serious harm.
Research suggests that a history of strangulation presents a seven fold increase in the risk of death. Internationally, strangulation is the second-most common method of killing in adult female homicides, after stabbing.
The long-term physical and mental health effects of strangulation are also serious. Studies report that even where there is little to no visible injury, longer-term physical effects have been identified including internal bleeding, dizziness, loss of memory and other neurological effects. There is also an increased risk of miscarriage. Psychological outcomes identified include depression, anxiety, suicidality, PTSD and dissociation.
The under-charging of strangulation and asphyxiation has been identified in several jurisdictions, including the United States, the United Kingdom, Australia and New Zealand. The lack of observable injuries means that the offender’s conduct may be minimised, and may be charged as a less serious form of assault.