Ending conversion practices in Scotland: consultation analysis

7. Conversion practices as an aggravating factor for existing offences

396. The consultation paper notes that there are forms of conversion practices that can be prosecuted under existing criminal offences. This includes situations where the conduct has a physical element, such as assault, including sexual assault, or forced marriage. In addition to creating two new criminal offences, it is proposed that conversion practices are made an aggravating factor for existing offences. This could be particularly important where conduct may not reach the threshold to be captured by the course of behaviour offence but meets the requirements of an existing criminal offence.

397. Creating a new statutory aggravation for conversion practices would require the courts to explicitly recognise and note the intention of the perpetrator. It would also require courts to take the aggravations into account when determining sentence, stating the extent and reasons why the sentence is greater as a result of the aggravating factor.

Question 24: What are your views on the proposal that conversion practices should be an aggravating factor for existing offences?

398. Responses to Question 24 by respondent type are set out in Table 13 below.

399. The largest proportion of respondents – 47% of those answering the question – did not support the proposal that conversion practices should be an aggravating factor for existing offences. This rose to a majority of organisations, 57% of those answering.

400. Of the remaining respondents, 42% of those answering supported the proposal, although this fell to 33% of organisations.

401. The proportion of respondents who did not know was relatively high again, at 11% of all respondents and 9% of organisations.

Question 25: Please give reasons for your answer to Question 24.

402. Around 2,550 respondents gave their reasons.

Reasons for opposing conversion practices as an aggravating factor

403. A number of those objecting to conversion practices being considered as an aggravating factor in other offences reiterated their fundamental objection to criminalising conversion practices. This was often connected to concerns about the potential impact of the proposals on faith bodies. Also as at previous questions, a frequently made point was that existing legislation is sufficient and additional measures, including the introduction of the aggravating factor provision, are not required.

404. There was also a view that the definitions set out in the proposed legislation are not sufficiently robust to support conversion practices being a possible aggravating factor for other offences. In addition, it was argued that the definitions of sexual orientation and gender identity are not consistent with those in the Hate Crime and Public Order (Scotland) Act 2021, and it was thought that this introduces the potential for confusion.

405. Other concerns raised by those opposed to creating a new statutory aggravation for conversion practices included:

• A view that this provision could be misused to accuse more people of conducting conversion practices, particularly if any measure requires only a single evidence source.
• Concern that enshrining conversion practices as an aggravating factor could set a precedent for broadening the scope of what constitutes aggravation in criminal law, with potential for an overreach into religious or therapeutic practices.
• A view that conversion practices should not be an aggravating factor where perpetrators are motivated by a desire to help, noting that the consultation paper acknowledges perpetrators may not intend malice.

Reasons for supporting conversion practices as an aggravating factor

406. Support for conversion practices being an aggravating factor was frequently associated with a view that the intention of the perpetrator is relevant to other related offences. It was noted that there are types of conversion practices that can be prosecuted under existing law, such as where there is a physical element, sexual assault or forced marriage.

407. However, it was also argued that a new statutory aggravation would, very importantly, allow the motivation behind these offences to be seen to its full extent. An associated point was that when conversion practice would constitute an existing crime, for example physical and sexual assault, it is vital that the perpetrator can be charged with an existing offence but that making the motive of conversion practice an aggravating factor ensures that motive is considered at sentencing.

408. This was seen as particularly important for cases where the conduct does not meet the threshold for the ‘course of behaviour’ offence, for example allowing prosecution of single incidents of extreme conversion practices.

409. In terms of other potential benefits, there was reference to:

• Allowing for a particular focus on the harm caused by conversion practices, over and above harm associated with the existing offence.
• Acting as an additional deterrent and reinforcing the message that conversion practices are harmful.

410. It was noted that the proposed approach is consistent with that for other offences such as domestic abuse and hate crime.

411. There was also support for the proposal as offering potential to improve data on the commission of crimes that have a conversion practice element. It was hoped that the statutory aggravation will help to improve understanding of the frequency and severity of conversion practices in Scotland, and that this information could help in implementation of the conversion practice criminal offence and civil measures.

412. A watchdog or similar mechanism was proposed to monitor trends in cases brought and prosecution outcomes involving conversion practices, including as an aggravating factor. An LGBTQI+ group respondent saw this as important in securing a detailed understanding of the full range of conversion practices in Scotland which would, in turn, ensure these are captured as aggravating factors. A Third sector respondent proposed that publishing data on conversion practices should be part of the reporting duty for Scottish Ministers.