Misogyny – A Human Rights Issue
The Working Group on Misogyny and Criminal Justice's independent report on their findings and recommendations.
Section 1: Introduction and General Summary
Misogyny – A Human Rights Issue
When I was asked to look at the Hate Crime legislation which was being debated in Scotland at the beginning of 2021, the central question was why women were being excluded from the proposed new law. Every other form of malign behaviour towards a specific group seemed to be classified as a Hate Crime, but not malign behaviour towards women. Women were forcefully asking "What About Us?".
When the Hate Crime and Public Order (Scotland) Act 2021 received Royal Assent in April 2021, Parliament left open the opportunity to use an enabling power, at a later date, to add 'sex' to the Act through secondary legislation. I was invited to establish a working group to decide whether this would in fact be an effective way of protecting women. I was also asked to consider the option of creating a separate, stand-alone offence based on misogyny. This idea was finding favour with many women in Scotland and elsewhere, because hate crime legislation is principally designed to protect minorities, and women are not a minority.
I have been a legal practitioner for five decades, and during that time have seen the rising tide of anger over the inability of the criminal justice system to address the violence, abuse and degradation that is so much part of women's and girls' daily lives. Debates about the failure of the system to deliver justice for women have now moved to centre stage, in a climate of increasing polarisation and divisiveness where vicious conduct seems to have exploded, turbo-charged by online disinhibition and social media invasiveness.
Increasingly in recent years, women have broken their enforced silence over the extent to which domestic abuse and sexual violence have blighted their lives and have complained about the inadequacy of the law's response. As a result, these issues moved up the political agenda. New laws were passed.
There have been many positive changes to criminal justice in Scotland. Significant efforts have been made to improve the law concerning rape, other sexual offences and domestic abuse, in order to achieve justice for women. Unfortunately, many potentially protective laws are hidden away in myriad pieces of legislation and some behaviours are so normalised that law enforcement officials fail to act. We should, too, be mindful that misogynistic acts, threats, harassment or verbal attacks that harm women can constitute violations of women's human rights contained within the Convention on the Elimination of All Forms of Discrimination Against Women of 1979 and the Council of Europe (Istanbul) Convention on the Elimination of Violence against Women and Girls. It is important that these protections are translated into domestic law and not just seen as aspirational. They are about the daily round of women's lives and the ways in which women are denied equal treatment.
Despite reforms, women do not get the justice they require and deserve. Women's trust in policing and legal processes is at an all-time low. The combined forces of the #MeToo movement, the historic child sex abuse scandals, the toxic nature of online platforms and the omnipresence of porn have all increased the volume on issues and experiences which were previously surrounded by too much silence. The daily grind of sexual harassment and abuse degrades women's lives, yet it seems to be accepted as part of what it means to be a woman. The failure to understand the ramifications of what is seen as low-level harassment and abuse is just one of the ways in which the criminal justice system falls down for women.
The Working Group was established in February 2021 and in the months that followed we examined a large body of oral and written evidence and reviewed extensive research into women's experience of misogynistic conduct. As a result of our work, we are recommending that the Scottish Government creates a specific piece of legislation to protect women from abuses which blight their lives. Scotland has been very active on the eradication of Gender Based Violence. Its strategy, 'Equally Safe', seeks to tackle all forms of violence against women and girls and involves working with stakeholders to prevent violence from occurring in the first place, as well as committing to strengthening the justice response. Our recommendations will add to the range of legal instruments available for that purpose. While it is not normally the role of advisory panels to recommend the titles of legislation, we do advise the creation of a Misogyny and Criminal Justice (Scotland) Act, as we believe language matters and we wish to focus the minds of those involved in the criminal justice system to create a better understanding of the gendered nature of law.
We propose that this new Misogyny and Criminal Justice (Scotland) Act would:
- Create a new Statutory Misogyny Aggravation which operates outside of the Hate Crime and Public Order (Scotland) Act 2021;
- Create a new offence of Stirring Up Hatred Against Women and Girls;
- Create a new offence of Public Misogynistic Harassment; and
- Create a new offence of Issuing Threats of, or Invoking, Rape or Sexual Assault or Disfigurement of Women and Girls online and offline.
We do not recommend the addition of Sex as a characteristic to the Hate Crime and Public Order Act (Scotland) Act 2021 as we feel that misogyny is so deeply rooted in our patriarchal ecosystem that it requires a more fundamental set of responses. While not all misogynistic behaviours will be captured by either the Aggravation or the proposed new offences in this Act, the shift in thinking and the reappraisal of certain forms of speech and conduct will contribute to a resetting of cultural norms.
This Act will also depart from the established practice of having law that is neutral with regard to gender. We feel that to eradicate misogynistic crimes these laws have to be targeted at protecting women. Treating as equal those who are not yet equal only furthers inequality.
What is misogyny? Misogyny is prejudice, malice and/or contempt for women. Sadly, it is rife in our society. Literalists cling to the word's origins and insist that misogyny means hatred of women, but it means more than that. The word has evolved to encompass the more widely held attitudes and behaviours that relegate women to a subordinate position and maintain the power imbalance which characterises male/female relations. It is these attitudes - and the conduct which flows from them - which prevent us achieving genuine equality. Make no mistake, actual hatred of women does exist. A recent example is the group of men referred to as incels (involuntary celibates) who now populate parts of the internet, sharing poisonous attitudes about women, threatening and taking violent action. But in conducting this work we relied upon a more general definition of misogyny which acknowledges the patriarchal nature of our society and the many ways in which women are subordinated:
Misogyny is a way of thinking that upholds the primary status of men and a sense of male entitlement, while subordinating women and limiting their power and freedom. Conduct based on this thinking can include a range of abusive and controlling behaviours including rape, sexual offences, harassment and bullying, and domestic abuse.
A number of events happened after the Working Group was established which further emphasised the significance of our work and made clear the urgent need to look at the bigger picture in tackling male violence and abuse of women and girls. Sarah Everard's case shook the nation to the core with vigils held in commemoration of her throughout the UK. This was followed by the cruel killing of Sabina Nessa. In the seven months that followed 80 more British women were murdered. Then there was the Plymouth incident in which several people lost their lives in a mass shooting. The perpetrator had links to incel forums, representing extreme misogyny in their content and purpose. The misogyny within police forces has also been exposed, not just with the failure to see the warning signs of dysfunction in the conduct of the police officer who falsely arrested, raped and killed Sarah Everard but in the behaviour of the officers who photographed and circulated images of the bodies of sisters and women of colour Nicole Smallman and Bibaa Henry. The combination of misogynistic and racist attitudes displayed in this instance is particularly toxic.
Over and over women said to us "SOMETHING HAS TO BE DONE."
In general, the law prefers to operate on the basis of neutrality, meaning most laws must be available to men as well as women. However, we would argue that the prevailing belief that the law should be neutral with regard to sex and/or gender disguises the reality that there are particular kinds of behaviour which target women. There has been insufficient examination of the more generally experienced abuses to which women are subjected and which emanate from male behaviour: the daily round of insult and harassment. Let me emphasise, not all men are abusive of women but it is time to accept that virtually all women have experienced abusive behaviour from men. Good, decent men are already coming onside to examine the root causes of crimes against women and girls and help find ways to eradicate the mindset that make them possible. They too desire change.
Over and over in this investigation we heard shocking evidence of women and girls being verbally insulted, denigrated, humiliated, touched and groped, undermined and patronised, trolled and objectified online and off, and subjected to threat, harassment and abuse about their looks or desirability. They are at the receiving end of actions that seek to constrain what they can do, or what freedoms they can enjoy. The disinhibited behaviour of men online has transferred to the street and other places.
Cumulatively, the experiences of misogynistic harassment, particularly of a sexual nature, place limits on women's lives. They create a climate of fear and barriers to women and girls fully participating in society and realising their human rights. There is hardly a woman who does not self-safeguard, taking precautions to avoid potential threat, 'risk assessing' from an early age. Girls are warned from childhood that they must avoid putting themselves in harm's way, that it is THEY who must learn behaviours that might afford them protection from predatory or violent men. They internalise the message that it will be their fault if something happens to them. They are on watch throughout their lives, protecting themselves by avoiding dark streets, late nights, solitary walks, empty lifts. They carry their keys in their hands as a weapon of self-defence. Research from ActionAid UK shows that 88% of young women between the ages of 18-24 take steps to protect themselves against the threat of harassment.
How many men after a night out in the pub with a few male friends ask them to text that they have got home safely? Women do it all the time.
Boys are not schooled in how to avoid putting girls in fear. Men who read this report need to understand that this is the stuff of women's daily lives. Please don't reach for the old lines about no longer being able to tell a mother-in-law joke or say "You look great in that dress, Doris." Women are not talking about benign, and perhaps well-intentioned, comments. Few men actually 'hate' women but many men still harbour deeply ingrained attitudes about male primacy and manifest a deep sense of entitlement with regard to women and their bodies.
Men can be affronted when met with female disinterest or rejection. Masculinity is measured by scoring high in 'pulling' women. Stories from women of being accosted by men who turned nasty when those women refused to engage with them were a feature of the evidence we received. A typical example is the bus stop experience: male attention starts with compliments and an attempted chat up, then turns hostile and aggressive when ignored or turned down, the fear rising in the woman as she looks desperately for a passer-by who might help. Public transport can be treacherous for women because an unpleasant interaction with an over-interested man invokes the fear of being followed from bus to home.
Such abusive experiences can often be compounded for women who belong to one of the minorities, whether because of their race or religion, sexuality, age, or because they are trans women or disabled women. Women of colour can be met with contempt and hostility on multiple intersecting levels, with racist misogyny or religious misogyny a frequent occurrence. They experience the exclusionary prejudice of one of the established hate crimes as well as misogyny. The evidence we heard suggested that the police had little appreciation of minority life and, for example, placed incidents and crimes involving women of colour on a lower rung of the ladder. Until we address these realities there will never be justice and equality.
The crushing weight of these experiences for women should not be dismissed as too trivial to engage the law. Free speech cannot justify this conduct. For girls it confirms their subordinate status, seeps into their burgeoning sense of self-worth and destroys their self-confidence. Why do we wonder that girls speak less in debates and women do not readily step up and ask for promotion or demand equal pay? The repeated plea to us by those who provided testimony was for a suite of solutions; legislation, public awareness raising, and education to provide the backbone for efforts to implement wider cultural change.
Misogyny is so deeply embedded in our culture that attempting to render it measurable for the purposes of legal sanction might sometimes be problematic if misogyny is not understood. A man may hate women who dare to challenge the status quo, who proudly display their sexuality, who are opinionated or who are too powerful; or who are successful; or the kind of woman who would not be interested in him or who is too clever by half or is too beautiful or not beautiful enough or too independent.
We take the view that antagonism towards 'kinds' of women ultimately denies the humanity of women as a whole, and therefore follows the pattern of other hate crimes.
Freedom of Thought, Freedom of Expression, Hate and Hate Crime
Let us be clear - hate itself is not a crime, much as we would like to drive hateful thinking out of our lives. Misogyny is not a crime. People are free to admire, to love and to hate. We may deplore that people hate others because of their race or their religion or their sexuality or their womanhood but the business of hating is not itself a crime. No child starts life hating; it is learned. It is the conduct that flows from hatred that can be criminal, but what goes on in our heads cannot and must not be criminalised. The Universal Declaration of Human Rights rightly protects Freedom of Thought. We were very clear from the outset that misogyny itself must not be criminalised as it is a way of thinking and freedom of thought must remain sacrosanct. 'Thought crime' is the stuff of totalitarianism and people in a free society have to be free to think the unthinkable. To think and dream and imagine is at the heart of human creativity. Once we start punishing people for thought we are invading the 'forum internum', that internal space which must be protected against encroachment as therein lies the essence of who we are.
Freedom of thought, conscience and religion, and freedom of expression must be respected in a democratic society and are protected under Articles 9 and 10 of the European Convention of Human Rights (ECHR) and under Articles 18 and 19 of the International Covenant on Civil and Political Rights (ICCPR). The UK is a party to these treaties and the ECHR is effectively written into Scotland's domestic law by way of the Scotland Act and the Human Rights Act, both of 1998. Testing and challenging orthodoxies and ideas are some of the basic conditions for progress and are at the very core of our concept of democracy. Freedom to hold and impart information and ideas without interference is vital. We have to accept that such information and ideas may offend, shock or disturb us but the demands of pluralism, tolerance and broadmindedness are key to a democratic society. Debate and counter-argument equip us to deal with change and may even encourage us to reconsider our own attitudes, but that freedom does not include conducting the discourse in a hostile manner with no respect for other parties if it unlawfully limits their rights. That is divisive and destructive.
The ECHR and ICCPR allow public authorities to limit our freedom of expression in certain very specific circumstances where the limitation amounts to a proportionate way of achieving a legitimate aim, such as preventing incitement of hatred that is incompatible with a democracy that respects human rights and the dignity of all persons. These limitations can in certain circumstances include criminalising expression that causes harm and where there is a pressing social need to apply the criminal law. All the recommendations made in this report are intended to fall squarely within the limitations permitted by international human rights law. If enacted, they must also be applied in practice in a way that respects individual human rights.
Let us examine what is really meant by hate crime law. In Scotland, a hate crime is a crime that is proved to have been motivated by, or to have demonstrated, malice and ill-will against the victim based on one or more of their characteristics (or perceived characteristics). Any criminal behaviour can constitute a hate crime and when a hate crime is proved, the judge is required to take that into account when determining the sentence. The judge must also state where the sentence is different from that which they would have imposed if the offence were not so aggravated, the extent of, and the reasons for, that difference, or, the reasons for there being no such difference.
The Hate Crime and Public Order (Scotland) Act 2021 requires judges to take into account the aggravation, in their sentencing for a crime, if it was committed by someone proved to have demonstrated malice and ill-will towards a person and the malice and ill-will are based on the victim's actual or presumed membership of a particular group, defined by reference to a listed characteristic. The listed characteristics are age, disability, race, religion, sexual orientation, transgender identity and variations in sex characteristics. So, if a person assaulted a man perceived to be gay, while verbally abusing him with slurs about homosexuals, the court would be required to take into account the homophobia. The contextual evidence informs whether the aggravation is proved. In most cases where an aggravation is alleged by the court, the evidence which justifies a tougher response is verbal insult that accompanies the threats or assaults. e.g. "I'm going to fucking bust your cock-sucking mouth, you little queer. You lot should be done in." Women are asking how that is different from "I'm going to beat you to a pulp, you stuck up cunt; you sluts should be taught a fucking lesson."
A New Statutory Misogyny Aggravation
We think that harmful conduct which has its roots in misogyny should have consequences. After much debate we think a distinct and separate Statutory Misogyny Aggravation should be made available in new legislation so that a judge has to take account of the misogynistic nature of the conduct when sentencing. This should be possible for most offences such as assault or threatening behaviour or criminal damage or online offences committed under the Communications Act 2003 when there is evidence of misogyny. The offence is considered more serious in these cases and would justify a more grave response. As with other Statutory Aggravations, the Misogyny Aggravation will not require corroboration.
It has been suggested that hate crime, established to deal with prejudice, malice and ill-will towards minorities, does not work particularly well for women. Hate is not a useful concept when it comes to the malign conduct that men display towards women, and the attitudes behind this conduct. We have advised that the Aggravation defines misogyny as being prejudice and / or malice and / or contempt towards women. Ill-will does not describe what men feel when they abuse or degrade women. Our formulation introduces the word contempt with its connotations of scorn, disrespect and disdain.
This contracted definition of misogyny should be set against an understanding of the systemic injustice and inequality that women still face.
The standard of proof is high in criminal matters – beyond reasonable doubt – and women should be aware that introducing this new Aggravation as part of the toolkit to address misogyny will not of itself create the change. A Hate Crime aggravation has not eliminated racism. It is clear to the Working Group that more is needed.
The Working Group was very clear that the new Aggravation should only be available for offences which are not misogynistic by definition, i.e. offences which are not inherently grounded in misogyny. The new Aggravation should be available for all other crime like assault, criminal damage and offences such as threatening behaviour (this includes shouting, swearing, uttering threats, brandishing a weapon all of which might be covered by sections 38 and 39 of the Criminal Justice and Licencing (Scotland) Act 2010 ) so long as there is evidence of a misogyny. Spitting at a woman and yelling sexist abusive insults at her because she refuses to go for a drink would be threatening behaviour or assault and the court could take the misogyny aggravation into account. The Aggravation should not apply to rape, other sexual offences or domestic abuse which are offences by their nature imbued with misogyny. Use of prostitutes would not be subject to the Aggravation. Indeed, the current legal landscape is being reviewed.
Assaults, as well as all other crimes, which occur in the context of domestic relationships and are thus often gendered and are already subject to an aggravation. Judges should take into account the background of an existing or former relationship between the parties (see Section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016). Therefore, the Misogyny Aggravation should not apply to crimes where the aggravation in the 2016 Act can be applied.
Rape and sexual assault are grave not least because of the misogyny involved. For decades, women's organisations have been persuading lawmakers to recognise the misogynistic nature of rape, as not merely a crime of lust but of power abuse, and urged courts not to introduce hierarchies of rape, with e.g. rape by a stranger seen as more serious than rape by someone known to the complainer. Sexual offences need separate treatment and laws which recognise their gendered and misogynistic nature. It would be invidious if one rape case drew down the Aggravation and another did not. For a list of sexual offences which would not be subject to the Misogyny Aggravation – i.e. 'carved out' of its remit – we would invoke the lists of sexual offences included in the Criminal Procedure (Scotland) Act 1995 section 210A(10) or section 288C.
I can already hear concern being expressed that rape is one of the worst hate crimes experienced by women, and one where the justice system fails spectacularly, yet it is not being included in the hate crime recommendations. Rape is indeed an egregious hate crime where many women are failed by the system. However, that failure is due to the misogynistic attitudes which permeate policing, prosecuting and trial systems, which sustain myths and stereotypes about women, and inform decision-making at every level. Getting down to the subsoil from where misogyny springs is a fundamental task and a real challenge; and that work is what this new Act will embark upon.
What law is available?
As mentioned, we conducted our own research and an extensive review of existing research. We also consulted widely. What emerged very clearly was that women did not know that laws already existed which could, potentially, be invoked to tackle some of the misogynistic conduct they experience. They thought they were expected to tolerate bad behaviour, that it would be seen as trivial to complain about frightening, abusive, humiliating, degrading or harassing conduct; they felt that it would be dismissed as a waste of police time. For many of these experiences, women do not want to see men jailed. They just want it to stop. The research undertaken for the Working Group (presented in Section 4 of the main body of this Report) showed that 93.4% of women did not report bad experiences to the police, over 50% because they thought the police would not be interested and the rest because they themselves thought it would seem too trivial.
The normalising of misogynistic conduct means that the police, prosecutors and judiciary – male and female - often do not recognise transgressive conduct for what it is. Nor do they always understand the impact that it has on the lives of those at the receiving end. It became clear to us from the evidence that there is an important role for the law in dealing more effectively with the lesser offending behaviour which is endemic, especially if it is of a sexualised nature and in a public place. It echoes 'the broken windows theory' of preventing the degradation of housing communities – you get nowhere with the serious stuff if you do not address the lesser stuff. When abusive behaviour is normalised it puts a haze around acts which may be an indicator of worse offending to come.
The group identified important gaps in the current criminal law relevant to the harmful misogynistic conduct upon which it was focused. The Working Group's proposals for new law are mindful of balancing the need to prevent and respond to this harm with the avoidance of over-criminalisation:
Misogynistic offences: What new law is needed?
As well as the Statutory Misogyny Aggravation, we are recommending the creation of three new offences, all of which should be incorporated into the Misogyny and Criminal Justice (Scotland) Act (along with the Aggravation).
1. Stirring Up Hatred Against Women and Girls
The Hate Crime and Public Order (Scotland) Act 2021 creates six new stirring up hatred offences in respect of age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics. We recommend including in the new Misogyny and Criminal Justice (Scotland) Act the standalone offence of Stirring Up Hatred Against Women and Girls, to tackle, amongst other things, the threat from incel and other extremist groups. Incel communities are bound together by an ideology which preaches hatred of women; the ideology has inspired deadly attacks and there has been a recent six‑fold increase in visits to incel websites. It shows no sign of disappearing.
2. Public Misogynistic Harassment
The experience of misogynistic abuse and harassment is now at epidemic levels and for this reason we recommend the creation of a new offence of Public Misogynistic Harassment. This new law will expand the scope of the criminal law. It will, in some places, cover behaviour which could already be prosecuted under laws found in varied statutes. However, by introducing an understanding of misogyny, and its pernicious effect, into specific legislation for women, we will concentrate the minds of investigators and prosecutors. Law is complicated and the evidence in every case is different. Prosecutors are experienced in marrying the appropriate legislation to the particular conduct and this offence adds to the range of options available.
Some of those who work within the criminal justice system take the view that laws already exist which should be used to deal with the complaints women are making of threatening or abusive behaviour, including existing laws relating to sexual offences. However, the 'fair labelling' of offences is a principle of the rule of law. Law has a symbolic purpose. Women should know that there is law that is clearly there for them, for when they experience frightening, humiliating, degrading or abusive behaviour. This offence would not only respond to harmful behaviour but would also act as a preventative mechanism. Women are subjected in public places to sexual touching and groping, being rubbed up against on crowded buses, sexual talk and descriptions of what men would like to do to them; to groups of men taking loudly in public places about porn, or how they deal with women sexually; women are subjected to hearing themselves described as sluts and tales of nights spit-roasting women.
Women must feel supported in reporting invasive, offensive and harassing behaviour and they should be encouraged to report to dedicated police phone lines, websites or a dedicated App. We agree with the prevailing desire to avoid burdening boys and young men with criminal convictions which can harm their future prospects. However, there will be circumstances in which a prison sentence is appropriate. We recommend that Prosecution Policy considers the availability of Alternatives to Prosecution, including Recorded Police Warnings in relation to this offence when dealing with less serious conduct by the young.
3. Issuing Threats of, or Invoking, Rape or Sexual Assault or Disfigurement of Women and Girls online and offline.
The other offence which we recommend introducing into the new statute is one of Issuing Threats of, or Invoking, Rape or Sexual Assault or Disfigurement which would apply to both private and public conduct. Our aim is to stop the weaponizing of sexually violent language. The use of threats of violation and physical damage to women is growing daily and fills women's lives with fear and distress, limiting their freedom of movement and liberty. Threatening, or invoking, rape has become a commonplace, online and offline. Women in public life receive such threats constantly, but so do schoolgirls.
The use of these threats is different from threats made to men. The threats are often couched in language which is not saying "I am going to come and rape you." More often it is "you deserve to be raped," or "I hope someone comes and rapes you," or "you are too ugly to rape." The threats are implicit and a reminder to women of what the sexual penalty can be for women who incur male antagonism. Perpetrators may have absolutely no intention of carrying out the threats, but their motives are clearly misogynistic; seeking to maintain the subordinate positions of women and girls. Such threats often lead to a 'pile on,' enabled in part by technology algorithms. As with "someone should slash your ugly face, you bitch," it leaves women feeling they can be rendered worthless. Threats to disfigure can of course be experienced widely by men and sometimes threats to disfigure which are made to a woman may not be misogynistic e.g. when a loan shark or drug dealer says he will remove an ear if a debt is not paid. But, issuing a threat of disfigurement is very clearly a way of subordinating women in a world where women are objectified and are constantly told how they look is how they are valued. A thread of an acid attack, or the slashing of a face, however 'credible,' can paralyse a young woman with fear and distress. And for young women in some minority ethnic communities, the threat to disfigure in the context of honour crime or a marriage refusal is well documented. The offence is being created for women because of the nature of the threats used to women, because of the particular harms that are caused, because they are so personalised and play into the fears which women have been schooled to internalise. We urge Parliament to adopt this recommendation.
New technology has created a tidal wave of online abuse and harassment of women and it has given confidence and opportunity to many men who want to intimidate, harass or belittle. The liberty to do this with impunity has spilled offline into public and private spaces, fuelling a torrent of vile harassment there too. There is no legal definition of cyber bullying and little legislation that can provide adequate protection, especially where abuse is conducted under the cover of anonymity. The Westminster Government is introducing Online Safety legislation but so far it contains no specific reference to women.
The Communications Act 2003 makes it an offence under some circumstances to send indecent or grossly offensive communication with the purpose of causing distress or anxiety. Under Section 127 of the Communications Act 2003 it is an offence to send an electronic message that is grossly offensive or of an indecent, obscene or menacing character. It could, in appropriate circumstances, be subject to the new Misogyny Aggravation. We would also press Scotland to urge the UK Government to enact regulatory measures requiring technology companies to reveal the identity of anonymous online abusers when their conduct is grave enough to involve criminal investigation and to bar from social media those who repeatedly abuse.
We are advocating that women should be encouraged to report misogynistic crimes of all kinds, even where they themselves cannot name the perpetrator or where they feel the matter is unlikely to proceed to court. Having no agency in the face of misogynistic conduct is one of most distressing aspects of the experience. The reporting of Misogynistic Aggravated Crime, and the new offences, will allow for the collection of statistics of harassment and a proper analysis of the conduct women are experiencing and where it most often occurs. These data and insights would be at the heart of training programmes within the police, schools, universities and the legal profession.
Our recommendation is that this new law should be created exclusively for women, and those perceived to be women, reflecting the inherently gendered nature of the problem we have been asked to address. The emphasis of such law is to shift the focus from women as victims to the men who perpetrate these crimes.
These proposals do not infringe on the principle of equality before the law, enshrined in international human rights law and domestic law.The huge body of evidence presented to this Working Group, presented in this Report and its annexes, leaves us in no doubt that women and girls need protecting from misogynistic conduct and that separate law can be justified.
People who are gender-fluid will say that women only law simply embeds the gender binary within our current society but we have to deal with our current world, which is racked with epidemic levels of violence and abuse against women and girls. If misogyny is not addressed, there will never be and equal society and there will never acceptance of anyone who does not conform. Misogyny is about making women conform and stay in line; misogyny is a problem at the very core of society. Until that is fixed, no-one will enjoy real freedom to be who they are.
Laws Worth Fighting For
The invitation to consider misogyny and the law might be considered by many as a hospital pass. Why would anyone step into this hostile territory? I have spent my life arguing for legal reform to create systems where people can be treated without discrimination and with equality and justice. Hatred always stems from seeing certain 'others' as 'lesser' beings. Since the 1970s I have fought for women's rights but I have also fought against class bias and racism and religious bigotry and homophobia. I have been a strong advocate for justice for trans people, having acted in a number of cases involving the most egregious persecution of those who have changed their gender identity. I was leading counsel in the first trans case in an international court – the European Court of Justice; we won my client's case of sex discrimination when she asserted her right to live as a woman. I have acted for a young trans woman who was raped, then ridiculed by police, and when she withdrew her complaint, knowing she would be humiliated in the witness box, she was prosecuted for perverting the course of justice and wasting police time. Trans people suffer unimaginable abuse and discrimination and that should not be minimised. Trans women face misogyny as well as prejudice about their change of gender. Disabled women, young and elderly women, LGBTI+ women and women of colour all face prejudice alongside misogyny. The law should seek to protect as many people as possible. I should also probably add that most of my clients over the years have actually been men and I have sought justice with vigour for them too.
When the Scottish parliament was legislating for Hate Crimes, a very heated debate arose over the nature of the characteristic which defines women. Should it be Sex or Gender? Couldn't it be both? For an initiative that was designed to reduce hatred it seemed to stimulate it. Surely, we can find better ways of respecting our common human-ness? Discussions have to be less polarised and language less provocative. Misogyny rooted in biological sex does exist, for example Female Genital Mutilation (FGM) or forced pregnancy but so too does misogyny based on actions, behaviours or expression, for example "wearing a mini-skirt means she was asking for it." The task of our Working Group was not to be the referee in this debate about 'who is a woman?' but to consider whether the law has a role in combatting misogyny. If a definition of 'a woman' has to be found, it is for the legislature to do this, but it is our preferred view that no offence should be created that requires a woman to prove that she is a woman.
All the evidence shows that while it is important for law to have the capacity to deal with crimes aggravated by the added element of hatred, it would be misleading to tell women that being included in a list of characteristics for hate crime would eliminate or even greatly reduce the huge amount of abuse experienced by women. Much more is needed. This is why we are recommending a range of legal responses.
Law matters in a society. It tells us who we are, what we value, who has power and who hasn't. It controls conduct which could threaten our safety and security and establishes the rules by which we live. There is no doubt that the position of women has changed radically over the last decades but a lot of male behaviour has not adapted and has in fact become even more threatening because of social media.
Law has a central role to play in this landscape, and legal systems must adapt if they want to gain the confidence of half the public. We are advocating legal reform because the power of the law in marking certain conduct as criminal cannot be underestimated. The law and the justice system play a crucial role in securing equality. Law that is failing half the public is seriously failing. It is right to say that something like misogyny can only be challenged through a serious cultural shift across society but law has a key role to play in effecting that sea change. New laws do not create trust but the visible prioritising of women's concerns and the building of a criminal justice system where misogyny is really understood is a start.
Scotland has proudly led the way in many areas concerning women's rights and violence against women; the zero tolerance campaign on domestic abuse, for example, was initiated here. Scotland was at the fore and set the gold standard in recognising that coercive, emotional and financial control was a form of domestic abuse. The reforms recommended in this report are also innovative, change-making and radical.
It is admirable and right that Scotland holds the ambition of ridding itself of misogyny altogether. It is an ambition for serious social change. It will be no mean feat but making a strong start by creating new laws, specifically created for women, will be a clear declaration of intent. These recommendations are intended to reach deeper into the foundations of inequality. They are purposely framed to create a profound shake-up. There will undoubtedly be opposition from those who are wedded to the old order. But men and women who want a better society for themselves and for future generations will embrace the spirit if not the letter of this Report. Change has to come and society is ready for it.
Baroness Helena Kennedy QC
I was given free rein to choose my own Independent Working Group and I wanted some strong legal input. I chose three formidable women lawyers Shelagh McCall QC, Dr Chloë Kennedy of Edinburgh University and the esteemed international lawyer, Susan Kemp, formerly of the Scottish Human Rights Commission. Emma Ritch the incisive Director of Engender joined us to represent a respected Scottish civil society organisation. Emma's sudden death in June was shocking to us all and a tragic loss to our work but we had the great good fortune in her replacement, Eilidh Dickson, who became a vital contributor. And to provide expertise on addressing male violence, Professor John Devaney also of Edinburgh University was persuaded to join the team. For good measure, I invited the very distinguished Mona Rishmawi of the United Nations to be an observer at our meetings where her global insights were of real value. Finally, I have had the benefit of advice from the Crown Office and Procurator Fiscal Service (COPFS) who have engaged with the Working Group within an advisory capacity. Jamie Lipton, the COPFS advisory representative, has attended regularly at meetings and offered practical input regarding the prosecution of crime in Scotland to support Working Group members in the formation of the recommendations contained within this report. It was a wonderful stimulating group of people and I am indebted to them all. The Working Group was supported by an impressive team of Scottish Government officials and researchers, led by the Saira Kapasi and Bill Brash to whom I pay a special tribute. I am also indebted to a brilliant social analyst, Laura Harrison, whose work with me in creating this Report has been central.
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