Ending conversion practices in Scotland: consultation analysis

6. Removing a person from Scotland for conversion practices

362. It is proposed that it should be a criminal offence to cause someone who is habitually resident in Scotland to leave Scotland with the intention that they will undergo conversion practices. The act of causing someone to leave Scotland would need to be done with the intention that the person was to undergo conversion practices. This would include a person being taken to another part of the UK, or abroad. It is not proposed to prosecute a person who carries out a conversion practice offence outside of Scotland.

363. As with the offence of engaging in conversion practices, this offence would be subject to the defence that the behaviour was reasonable in the circumstances. This would act as a safeguard because there is no requirement within the offence for the intended conversion act or course of behaviour to actually take place or for harm to have occurred.

364. The proposed sentencing range for prosecutions under this offence would be:

• on conviction under summary procedure: imprisonment for a term not exceeding 12 months, or a fine, or both
• on conviction on indictment (solemn procedure): imprisonment for a term not exceeding 3 years, or a fine, or both.

Question 20: What are your views on it being a criminal offence to take a person out of Scotland for the purpose of subjecting them to conversion practices?

365. Responses to Question 20 by respondent type are set out in Table 11 below.

366. The largest proportion of respondents – 46% of those answering the question – supported it being a criminal offence to take a person out of Scotland for the purpose of subjecting them to conversion practices. However, the proportion of organisations supporting the approach was lower, at 39% of those answering.

367. Of the remaining respondents, 40% of those answering did not support the approach. This rose to a small majority of organisations – 54% of those answering.

368. The proportion of respondents who did not know was relatively high, at 14% of all respondents and 7% of organisations.

Question 21: Please give reasons for your answer to Question 20.

369. Around 3,150 respondents gave their reasons.

Reasons for opposing the proposed criminal offence

370. Respondents highlighted a range of concerns around making it a criminal offence to take a person out of Scotland for the purpose of subjecting them to conversion practices.

371. It was argued (as at earlier questions) that a new offence is not required to protect LGBTQI+ people from harm, including because existing legislation provides sufficient protection against people being taken out of Scotland for harmful practices (albeit this was generally not cited). In any case, some respondents thought that the consultation paper does not present convincing evidence that people are being caused to leave Scotland to be subject to conversion practices.

372. Those opposed to the proposal also saw inconsistencies with Scottish law criminalising taking a person out of Scotland for the purpose of subjecting them to conversion practices, whilst allowing young people to be referred to other parts of the UK for gender-affirming treatment or procedures. This stemmed from the respondents’ view that these gender-affirming treatment or procedures are also ‘harmful’. For some respondents there was a concern, as at other questions, that the proposal does not distinguish between conversion practices targeting sexual orientation and those targeting gender identity.

373. However, the most frequent objection to the proposal was that the proposed offence could criminalise parents or others taking someone out of Scotland to engage in consensual discussions or religious practices. There was a view, including from some Faith body respondents, that these discussions or practices could be important steps before a young person makes a significant life decision, such as to transition.

374. It was also suggested that people may wish to have these conversations, and that criminality should not apply where people leave Scotland voluntarily. An associated suggestion was that these proposals are inconsistent with allowing people to leave Scotland for other services that are not legal in Scotland, such as assisted suicide. There was a view that any offence should only apply where an individual has left Scotland against their will. A related argument was that criminalising the act of helping someone to get assistance could be a breach of the ECHR.

375. There was also a concern that the offence would not require conversion practices to have been carried out, or harm to have been caused, and some (including some who were broadly supportive of the proposals) saw this as inconsistent with the harm requirement in the main offence, and as setting an unacceptably low threshold for criminality.

Reasons for supporting the proposed offence

376. Support for the proposed offence was most commonly linked to a view that this will be necessary to ensure the Bill is effective in protecting LGBTQI+ people in Scotland from harm caused by conversion practices. There was concern that, without this provision, perpetrators would be able to avoid a ban on conversion practices relatively easily. This was seen as a particular risk while conversion practices remain legal in other countries, and especially if there are differences in law across the UK.

377. Those in favour of the proposal also noted that the principle of preventing people being removed from Scotland to be subjected to illegal practices is already well established. Prohibition on causing someone to leave Scotland to be subject to harmful practices was described as having proven effective in comparable legislation relating to female genital mutilation and forced marriages, and it was noted that this is also being considered as part of a proposed ban on conversion practices in the Republic of Ireland. It was suggested that learning from this experience should be used to inform implementation of the Bill.

378. There was support for the proposed definition of causing someone to leave Scotland, including the proposed threshold of proof and support for an approach that recognises that the perpetrator does not necessarily have to travel with the victim. The proposed definition of causing someone to leave Scotland was also seen as likely to involve coercion, and thus is right to be criminalised.

379. Those supporting the proposal also highlighted issues to be considered, or suggestions for change, if taking the measures forward. These included that:

• The legislation should include provision to prevent the coercion of a victim to make and pay for their own travel arrangements, and the reference to a perpetrator ‘paying all or a substantial proportion of’ travel costs should be reduced to ‘paying a portion or some of’ these costs.
• The proposed offence should be expanded to recognise the potential for overseas conversion practices to be accessed in Scotland through digital platforms. It was noted that conversion practices are different to female genital mutilation and forced marriage in that the victim does not have to physically leave the country, with conversion practices being widely available online. There were calls for any offence to address this risk.

380. Possible challenges relating to enforcement were also highlighted, particularly given the ease with which people can cross the border to access conversion practices in the rest of the UK.

Question 22: What are your views on the proposed penalties for taking a person outside of Scotland for the purposes of conversion practices?

381. Responses to Question 22 by respondent type are set out in Table 12 below.

382. The largest proportion of respondents – 49% of those answering the question – did not support the proposed penalties for taking a person outside of Scotland for the purposes of conversion practices. This rose to a small majority of organisations.

383. Of the remaining respondents, 35% of those answering supported the approach. This fell to only 27% of organisations answering the question.

384. The proportion of respondents who did not know was relatively high again, at 16% of all respondents and 18% of organisations.

Question 23: Please give reasons for your answer to Question 22.

385. Around 2,600 respondents gave their reasons.

386. Reflecting the analysis at the closed question, respondents did not divide as consistently as at some previous questions in terms of the issues raised. Given this, the analysis below is set out thematically.

The principle of penalties

387. Support for putting penalties in place was most frequently based on a view that these will be important in ensuring the proposed offence is effective in protecting LGBTQI+ people from being taken outside of Scotland for the purposes of conversion practices. Penalties were seen by some as essential to reinforce legislation as a deterrent, and as sending a clear message that conversion practices cause serious harm and are unacceptable.

388. However, others objected to the principle of penalties applying, sometimes linking this to their fundamental objection to the proposed new offence, with some also noting specific circumstances under which they thought they could be misapplied. These included penalties being imposed on parents or others for behaviours such as counselling and advice.

389. Penalties were also seen as having the potential to drive people to seek help ‘underground’ with potential for greater harm. In this context, some described the proposed penalties as excessive, including a view that conversion practices are not comparable with other offences such as female genital mutilation in terms of the harm caused.

Range of penalties proposed

390. There was support for having a range of penalties to enable a flexible approach to sentencing which can take account of the specific circumstances of each case, including potential aggravating or mitigating factors. Flexibility was seen as important given the likely diversity of cases, with some of the view that a substantial number of penalties imposed are likely to be below the proposed maximum.

391. Some comparisons were made to other areas of criminal law associated with removing people from their location. This was most commonly with reference to female genital mutilation, forced marriage or human trafficking, with some suggesting that penalties should be in line with those for similar offences – although there were differences of opinion around the extent to which conversion practices are comparable with female genital mutilation and forced marriage in terms of the harm caused.

392. Respondents also referred to factors that should be taken into account in determining which penalty should apply, including:

• Recognising that many victims will not wish to harm their families or communities (i.e. with imposition of a custodial sentence) but rather to be protected from harm.
• Lesser penalties for first offences or where the perpetrator facilitated travel but was not present or involved in committing conversion practices.
• Stronger penalties for repeat offences and/or cases where serious harm has been inflicted.
• Penalties for causing someone to leave Scotland being lower than penalties for subjecting someone to such practices in Scotland. However, others wished to see penalties that are at least equivalent to those for committing conversion practices in Scotland.

393. On this latter point, an LGBTQI+ group suggested that lesser penalties could be exploited as a loophole to subject someone to conversion practices outside of Scotland. There was also a view that removing a person from Scotland and their support networks, and the planning required to achieve this, is a more serious offence that should be subject to harsher penalties.

394. More broadly, a frequently made but general point was that the proposed penalties for taking people outside Scotland should be tougher. For example, some wished to see the maximum penalty to be in line with the offence of committing conversion practices (i.e. a 7-year custodial sentence). Other suggestions generally fell into the range of 5 to 10 years on indictment.

395. Other respondents wished to see more use of community-based penalties and restorative approaches. This was linked to a view that custodial sentences would not be appropriate, and included specific reference to community service, restorative justice, therapy and education on LGBTQI+ issues. It was also suggested that other penalties could be appropriate, such as prohibition on working with vulnerable groups, and revoking medical, clinical or religious licences.