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Publication - Strategy/plan

Misogyny and Criminal Justice Working Group recommendations: response

Published
21 April 2022
Directorate
Justice Directorate
Part of
Equality and rights, Law and order

Our response to an independent report on how the Scottish criminal justice system deals with misogyny faced by women and girls.

The Independent Working Group on Misogyny and Criminal Justice in Scotland, chaired by Baroness Helena Kennedy QC, completed its work with the publication of its report - Misogyny: a human rights issue - on 8 March 2022.  

On the day of publication of the report, the First Minister welcomed the Working Group’s report in principle stating that ‘the report highlighted ways in which the law was currently failing women and girls, and it gave powerful voice to the stark reality of the misogyny faced by women in everyday life’ and that ‘its recommendations are bold and they are far reaching’.

The Working Group made a number of recommendations based on its findings and conclusions – some are ground-breaking in their nature, seeking to address misogynistic conduct that women and girls suffer as a daily occurrence in Scotland.

This is an important piece of work to help inform policy to address the many forms of violence, transgression and abuse experienced by women which may emanate from misogyny and is a milestone in making our society safe, equal and fair.

Scotland led the way in creating a zero tolerance position to domestic abuse, by creating the first domestic abuse offence which explicitly recognised and defined the different ways in which coercive and controlling behaviours can be used in domestic abuse. We are also continuing to implement ‘Equally Safe’, Scotland’s strategy to prevent and eradicate all forms of violence against women and girls.  Developing the detail of how legislation can address and respond to misogynistic behaviours will complement these wider initiatives. 

The law can of course only go so far to deliver a policy of eradicating violence against women and girls. It is only by changing the misogynistic attitudes that all too often prevail, alongside law reform that can mean Scotland becomes a place where women and girls can seek to fulfil their full potential unhindered by misogyny.

Women should be free from misogynistic acts, threats, harassment or verbal attacks and we must be mindful of women’s human rights, including those contained in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (known as the “Istanbul Convention”).

As the centrepiece of our approach, development of draft legislative provisions will be taken forward and published for consultation prior to a Bill being introduced in the Scottish Parliament.

The report recommends the creation of new criminal law provisions in four areas. Three of these are new offences criminalising specific forms of misogynistic conduct and the fourth is the creation of a new sentencing aggravation to address the spectrum of misogynistic conduct. 

These new items of criminal law are the creation of:

  • a new statutory aggravation to relate to misogynistic conduct where a crime such as assault, criminal damage/vandalism or threatening or abusive behaviour is aggravated by misogyny

  • a new offence of stirring up hatred against women

  • a new offence of public sexual harassment of women, and

  • a new offence of issuing threats of, or invoking, rape or sexual assault or disfigurement of women and girls online and offline

The report does not recommend adding a sex characteristic to the Hate Crime and Public Order (Scotland) Act 2021.

We accept that these recommendations represent a new and necessary departure, in that they specify women and girls as requiring specific protection of the criminal law, and are pivotal in challenging society’s tolerance of misogyny. In particular, it is important to focus on men’s tolerance of misogyny, and ensures a clear message that male attitudes which emanate from prejudice and misogyny have no place in a modern equal Scotland.

In deciding the best approach in progressing the recommendations is to develop specific draft legislative provisions for consultation, we have been guided by the experience of legislating in sensitive areas of criminal law such as the domestic abuse offence. That experience very clearly showed that informed and insightful feedback is best provided in novel areas such as this in response to the sight of specific draft criminal law provisions where possible.     

This process of consulting on draft legislative provisions will allow these to be fully scrutinised by all those with an interest. 

The timing of introduction of a final Bill into the Scottish Parliament will be considered as part of wider legislative planning and the Government’s future legislative programme will be set out in the Programme for Government in the usual way. However, prior to introducing a Bill we plan to hold a public consultation on draft legislative provisions.

As the policy of the recommendations is turned into draft legislative provisions, there are a number of associated issues to work through and consider for each of the four criminal law recommendations. This analysis and consideration is of course at an early stage given the report was only published a few weeks’ ago, but a summary of some of the key issues we will be considering for each of the four recommendations is contained below.

Recommendation 1: statutory aggravation

 

This recommendation is for the creation of a statutory aggravation where non-excluded offences are aggravated by misogyny.  This would operate outside of the hate crime legislative framework.

Amongst issues to be considered include the following:

  • the report recommends the aggravation should apply where the offence is motivated by ‘prejudice or contempt’ or the offender demonstrates ‘prejudice or contempt’ in committing the offence.  This differs from the terminology used in existing hate crime aggravations of ‘malice or ill-will’
    • consideration required exactly how to provide for this as it is departure from how existing similar aggravations operates
    • consideration required in particular as to what practical impact, if any, arises from use of ‘contempt’ as part of the aggravation
  • where misogyny is generally recognised as deeply engrained in an offender’s behaviour when committing certain offences (e.g. rape, domestic abuse), the report recommends that such offences should be ‘carved out’ so the aggravation should not apply.  This is because this would be expected to be routinely considered when sentencing the offender for such offences. 
    • consideration required as to any other offences besides those identified in the report where the same argument may apply – e.g. the offence of non-consensual disclosure of intimate images
  • consideration required whether the aggravation should be capable of applying where a crime is committed against someone who is not a woman but the crime was nonetheless motivated by contempt/prejudice against women (e.g. a male participant in a women’s rights event)?  The report does not address this issue, but existing statutory ‘hate crime’ aggravations work in this way (e.g. the aggravation would apply if someone attacked a white person at a black rights event because they disapproved of white people campaigning for black rights)

Recommendation 2: offence of stirring up hatred

 

This recommendation is for the creation of an offence of stirring up hatred against women and girls.

Amongst issues to be considered include the following:

  • the report seems to suggest on one reading that the offence may need to cover stirring up hatred against ‘particular groups of women’ as well as stirring up hatred of women as a group.  Consideration required on this issue including whether this is the intended meaning of the wording of the report in this area and if it is, the extent to which the existing ‘hate crime’ model for stirring up hatred offences achieves this policy objective
  • the report notes that the consequences in terms of freedom of expression are a matter to consider.  As such, issues such as whether there should be a ‘reasonableness’ defence as is in place for the ‘stirring up hatred’ offences contained in the Hate Crime and Public Order (Scotland) Act 2021 will be explored

Recommendation 3: offence of public misogynistic harassment

 

This recommendation is for an offence of public misogynistic harassment.

Amongst issues to be considered include the following:

  • the test that the report proposes be used to determine whether behaviour amounts to an offence is as follows:
    • behaviour that would be:
      • likely to cause fear, or alarm, or distress, or humiliation, or degradation to a woman or women
      • where the accused either intends such behaviour to cause such effects, or else is reckless as to whether such behaviour is likely to have this effect
  • if developed in the terms as recommended in the report, the offence would broaden the scope of the criminal law in potentially far-reaching and significant ways with the addition of causing distress, humiliation or degradation, (currently the offence of threatening and abusive behaviour relates only to the victim suffering fear and alarm).  The report makes clear this is a deliberate policy decision for the offence to broaden the criminal law in this way
    • Consideration required as to the exact scope of the conduct covered by the proposed offence including assessing what specific types of conduct would give rise to the offence being committed and assessing whether the identified types of conduct should be capable of sanction under the criminal law
  • consideration required as to how a court would be able to interpret behaviour likely to cause a woman to feel ‘degradation’ in the context of such an offence.  While the term is used in the domestic abuse offence, it is perhaps easier to see how this works in that context, where there is an established relationship between the perpetrator and victim
  • consideration required of all the examples of conduct described in the report as being criminalised by the offence as to whether the terms of the proposed offence specifically captures that conduct.  This is linked to the issue above regarding consideration of how a court would interpret different behaviours as being likely to cause a woman or group of women to feel, for example, degraded or humiliated

Recommendation 4: offence of issuing threats of or invoking rape or sexual assault or disfigurement

 

This recommendation is for an offence of issuing threats of or invoking rape or sexual assault or disfigurement of women and girls online and offline.

Amongst issues to be considered include the following:

  • in the context of direct threats of rape, sexual assault or disfigurement already being criminal under existing offences, consideration required to define the exact boundaries of an offence – particularly as regards what the working group describe as “invoking threats” of rape, sexual assault or disfigurement
  • consideration required whether the reference to threats of disfigurement is the correct approach.  It may be considered that an offence that referred to threats of violence or serious injury may be a more straightforward way to approach development of the offence as otherwise there is a risk of courts having to consider whether a threat of e.g. violent assault does or does not actually amount to a threat of disfigurement
  • consideration required regarding this being an offence that is committed against individual women.  As such, and in contrast with the other proposed criminal law recommendations, the development of the offence will need to make clear who the offence can be committed against

 

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