Measures under Criminal Law and Enforcement Mechanisms
Guiding Principles Regarding Measures under Criminal Law and Enforcement Mechanisms
It is strongly felt by the Group that the ending of conversion practices requires not just criminal law but also measures of administrative and civil law. While these are addressed separately from measures under criminal law in our guiding principles, we strongly believe that they must also be drafted into legislation.
The criminalisation of conversion practices sends a clear signal that they are not acceptable in Scotland.
10. The content of the criminal offence
We recommend that the commission of conversion practices, falling within the definition set out above, should be a criminal offence in Scotland. The criminal offence should encompass any of the acts within the definition, for example, a treatment, practice or effort. It should include both an individual act and a series or accumulation of acts which might not individually be thought to be a practice, but together amount to a conversion practice when undertaken with the intent to change, suppress or inhibit someone's sexual orientation, sexual expression, gender identity and/or gender expression. If the treatment, practice or effort is not directed and not intended to change, suppress or inhibit sexual orientation, expression of sexual orientation, gender identity and/or gender expression, it should not be criminal.
We understand that conversion practices are not normally carried out by lone individuals but usually with the support of others, whether that be family or community members, faith organisations or other organisations providing services aimed at sexual orientation or gender identity conversion. As a result, the criminalisation of conversion practices should not only include the carrying out of the practices themselves, but should also include offering, promoting, advertising or referring a person for the purpose of conversion practices. This will have the effect of capturing the range of conduct that accompanies the actual performance of conversion practices and of addressing the community and faith contexts that support and galvanise these practices.
We believe that the existence of specific intent to cause harm, malice or ill-will is not required for an act to be considered a conversion practice and therefore a criminal offence. Nor should there be any requirement that the perpetrator sought to cause harm to the victim or potential victim, as explained further below. We have addressed this by ensuring that the definition of conversion practices does not require an intent to cause harm. The Group also agrees with the Equalities, Human Rights and Civil Justice Committee that consent of the victim is not to be a defence to the carrying out of conversion practice.
Many victims of conversion practices have described a series of controlling or coercive behaviours and acts which may cumulatively amount to conversion practice. This can include curfews for young people, restricting access to transport or spaces, gatekeeping access to healthcare, discouraging disclosure or discussion – all done with the intention of suppression, change or inhibition of the person's sexual orientation, expression of sexual orientation, gender identity and/or gender expression. This can be compared to coercive control in a domestic abuse context. However, current domestic abuse legislation does not cover conversion practices in relation to gender identity, sexual orientation and/or gender expression and is limited to control by 'partners' or 'ex-partners'. We therefore recommend that the Scottish Government consider the inclusion of coercive control as a form of conversion practice as a criminal offence within the proposed legislation.
11. Removal from Scotland
We are also concerned about individuals being removed from Scotland (whether elsewhere in the United Kingdom or overseas) for the purpose of undergoing conversion practices and believe that this should be included in the criminal acts. We are particularly concerned about victims being removed to a jurisdiction where conversion practices are not yet prohibited. Attention is drawn to the fact that such removal may often be done under false pretences, for example, to deal with trauma, addiction, or for family purposes.
We therefore recommend that it should be a criminal offence to remove someone or aid in removing someone from Scotland to be subject to conversion practices anywhere else in the world. This would fall under our proposed definition of conversion practices. As outlined above, the offence should cover those being taken out of the country for the purposes of conversion, regardless of guise. The offence should also include those who aid, abet or otherwise facilitate someone being taken outside Scotland for the purpose of carrying out conversion practices on them where this is done with knowledge of the intended principal offence.
Recognising that conversion practices often happen within institutional or organisational contexts, we believe that the legislation should also be clear that criminal responsibility extends to persons who do not directly carry out the conversion practices themselves, but direct another person or subordinate to do so or allow a subordinate to do so.
This takes into account that, especially in situations where conversion practices are carried out within a larger organisation, persons at several levels of a hierarchy may be involved. In these cases, those higher up within the organisation should also bear criminal responsibility. As well as including direct orders to carry out conversion practices, this should also include situations where the superior is aware that such acts are being committed or should have been aware of them, based on the facts of the situation.
13. No defence for consent
As outlined above, because conversion practices violate a range of human rights, we do not believe that the criminal offence should allow any defence of consent of the victim, whether explicit or implied.
In a context where a person is reliant on family, faith, or community leaders, and is led to believe that who they are is in some way wrong, they are vulnerable to coercion. This can include fear of violence, psychological oppression or abuse of power or through taking advantage of a coercive environment. As a result, it can appear that the person consents or agrees to engage in conversion practices in order to minimise discomfort or alienation within their community or family. This will affect different communities in different ways and may look different depending on contexts. We discuss this further, below, in the set of guiding principles looking at diverse experiences of conversion practices.
14. Intent and harm
The Group believes that the existence of specific intent to cause harm, malice or ill-will is not required for an act to be considered a conversion practice, beyond the intent to change, suppress or inhibit sexual orientation, expression of sexual orientation, or gender identity and/or gender expression. Nor should there be any requirement that the provider sought to cause harm to the victim or potential victim. If the practice is not directed and not intended to change, suppress or inhibit sexual orientation, expression of sexual orientation, or gender identity and / or gender expression, it does not fall under the definition of conversion practices and is therefore not criminal.
For the purposes of criminalisation, the requirement should be that the perpetrator intended the treatment, practice or effort that took place. It is not required that they consider their conduct to amount to conversion practices, and the assertion that they did not consider it conversion practices themselves, is not a defence.
In this regard, the definition of conversion practices should not limit the practice to those who genuinely believe that the relevant change of sexual orientation, gender identity, expression of sexual orientation and/or expression of gender identity is possible and desirable. In some cases, people who carry out acts or practices that would fall under the definition of conversion practices may not view these acts as either harmful or as attempting to change someone's sexual orientation, gender identity, expression of sexual orientation and/or gender expression but rather as helping or supporting them. However, we believe that this motivation should not be relevant and that there need not be a specific intent to cause harm for the act of conversion practices to be a criminal offence.
15. Survivor autonomy
While we believe that the criminalisation of conversion practices is essential, we also think that the wishes and interests of the victims are an important factor in determining the consequences of the criminalised acts. Survivors of conversion practices have made it clear to the Group that criminal prosecution will not always be the appropriate consequence as it may lead to further alienation from community and family. The Group supports a victim-led approach to responding to individual cases of conversion practices and this is one of the reasons that we have recommended the establishment of a set of civil measures, discussed below. One of the main purposes of these measures is to integrate and take full account of the wishes of victims in deciding the appropriate response to a case or situation, for example in deciding whether and how to investigate. Our recommendation provides for the possibility of an independent Commission to launch an investigation at the request of a victim. Where such a request does not exist, the Group recommends that the Crown Office and Procurator Fiscal Service or the Commission resort to investigation only in cases of public interest.
16. Appropriate sentencing
The sentences for the criminalised acts need to be appropriate but the precise determination of the sentence will have to be done on an individual basis, considering the relevant aggravating and mitigating factors.
The Group recommends that a higher sentence be imposed in certain situations. These are cases constituting aggravated forms of conduct. Three such situations are envisaged:
1. the causation of serious bodily or mental harm (where the perpetrator intended such harm, was aware of its likely occurrence or should have been aware of its likely occurrence)
2. the performance of conversion practices on a child
3. the performance of conversion practices on a person in a situation of vulnerability, for instance, persons with mental disorders and persons who are in a situation of dependence (where the perpetrator was aware of the situation of vulnerability)
In relation to conversion practices on children and on persons in a situation of vulnerability, it is sufficient that the perpetrator was aware of the age or the situation of vulnerability. For the causation of serious bodily or mental harm, it is sufficient that the perpetrator should have been aware of the likely occurrence of such harm.
17. Vulnerability of victims
In the context of conversion practices, vulnerability is understood to include persons with mental disorders as per the definition included in s. 328 of the Mental Health (Care and Treatment) (Scotland) Act, as well as persons in situations of dependence.
While we appreciate that all potential victims and survivors of conversion practices should be considered as vulnerable, we believe that a particular situation of vulnerability exists where the survivor is dependent on the perpetrator for material safety, shelter, money, food and clothing etc. Vulnerability can also arise in instances when someone's sense of self is challenged by their support network, community or family/guardians or where coercion, manipulation and abuse have been employed in the conduct of conversion practices.
18. Children subject to conversion practices
In addition to the possibility of an increased sentence, the Group recommends that, where the perpetrator of any of the criminalised acts has parental or guardianship rights in relation to the victim, the legal consequences may include the modification or withdrawal of such rights.
Where parents or guardians have engaged in conversion practices, the modification or even withdrawal of their parental or guardianship rights is envisaged as an option. This will not apply in all cases of conversion practices, and it is important that in these difficult situations the concerns of the victim are taken into account. Some cases of conversion practices performed by parents or guardians are, however, severe and/or persisting, and in those situations in the interests of the victim, it is unavoidable that this sanction is available.
19. Public authorities and support of organisations engaging in conversion practices
Public authorities have a duty to ensure that no form of support, whether direct or indirect, is given to persons or organisations that carry out conversion practices. The Group recommends that authorities make sure that no public facilities, for example a public hall, are provided for any of the criminalised acts and that organisations which have been found to have been engaging in any of the criminalised acts do not receive preferential tax status, for example, linked to charitable status, or benefit from public subsidies. Where this is the case, Scotland is under a responsibility to cease the relevant support.
20. Malpractice in health care and conversion practices
The Group notes that conversion practices may be carried out by healthcare professionals, for instance by a psychiatrist. Where that is the case, conversion practices involve questions of professional standards. Where the perpetrator of any of the criminalised acts is a healthcare professional, the legal consequences should include the option of the withdrawal of the perpetrator's professional licence.
21. Conversion practices in faith and religious institutions and charities
The Group recommends that, where the perpetrator of any of the criminalised acts is a faith leader or a member of a religious institution, the legal consequences may include the withdrawal of the perpetrator's professional licence as a faith leader or removal of ability to work within Scotland in said institution, or withdrawal of the institution's charity status where the institution is not otherwise regulated.
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