Section 8: Misogyny and criminal law
8.1 Current law
Before considering whether there are areas where existing law is not working for women, the Working Group defined the criteria against which the effectiveness of law could be determined:
- Clarity on what society accepts: The law plays the vital role of creating clarity about what society is, and is not, prepared to accept. The law must not lag too far behind public concerns, nor be seen to be dismissing the value of these public concerns.
- Comprehensibility: The law needs to be clear so that victims know when to report their experiences and so everyone has a fair chance to avoid breaking the law. Comprehensible laws also facilitate education and training within the police force, the wider criminal justice system and beyond.
- Justifiability: criminal law must be justifiable in the sense that it must constitute a proportionate response to an identifiable wrong and / or harm.
- Meaningful data: Application of the law needs to provide meaningful data and thus insight on the behaviour that the law is seeking to address – ensuring a continuing mandate to invest in ongoing programmes (education, campaigning, policy development) that promote change.
Although there is no specific criminal offence of 'misogynistic conduct' or 'misogynistic harassment' in Scots law, there are a number of relevant offences that could, depending on the facts and circumstances of the particular case, be used to prosecute conduct towards women which may arise as a consequence of misogyny. The main examples are set out below:
1. 'Threatening or abusive behaviour' – section 38, Criminal Justice and Licensing (Scotland) Act 2010.
a. This provides that it is a criminal offence to behave in a threatening or abusive manner that would be likely to cause a reasonable person to suffer fear or alarm. The offence is committed if the accused either intends that their behaviour cause fear or alarm, or else is reckless as to whether the behaviour would cause fear or alarm.
b. The offence covers behaviour of any kind, including, in particular, things said or otherwise communicated as well as things done.
2. 'Stalking' – section 39, Criminal Justice and Licensing (Scotland) Act 2010.
a. This provides that it is a criminal offence for a person to 'stalk' another person. Stalking is defined as engaging in a course of conduct that causes the victim to suffer fear or alarm, where the accused either intends to cause such fear or alarm, or else knew or ought to have known that engaging in that course of conduct would be likely to cause the victim to suffer fear or alarm.
b. It differs from section 38 both in that it requires a course of conduct (a single instance of behaviour cannot be prosecuted as 'stalking') and it requires that the victim suffer actual fear or alarm as a result of the accused's conduct, rather than requiring the accused's conduct to be likely to cause fear or alarm to a reasonable person.
c. Stalking can be committed in engaging in conduct which is otherwise lawful.
3. 'Improper use of a public electronic communications network – section 127 – Communications Act 2003.
a. This provides that it is an offence for a person to send, by means of a public electronic communications network, a message or other matter that is grossly offensive or of an indecent, obscene or menacing character or to send by means of a public electronic communications network, a message that he knows to be false, for the purpose of causing annoyance, inconvenience or needless anxiety to another.
4. Breach of the peace – common law offence.
a. The offence involves 'conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community.' It has, to a certain extent, been superseded in practice by the offence of 'threatening and abusive behaviour.' The offence of breach of the peace requires a public element whereas threatening or abusive behaviour does not.
5. Threats - common law offence.
a. Threats at common law are divided into two classes: those which are criminal in themselves, and those which are criminal when made with a certain motive or intention.
b. The first class includes threats "to burn a man's house...to put him to death, or to do him any grievous bodily harm, or to do any serious injury to his property, his fortune or his reputation." 
c. The second class comprises all other threats, including threats of violence not amounting to grievous harm. These are criminal where, for example, the motivation is to deter a person from giving evidence in or threatening a judge to in reference to his judicial capacity. Attempts at extortion may be charged as common law threats where something other than money is involved.
6. Sexual assault – section 3 – Sexual Offences (Scotland) Act 2009.
a. This provides that it is an offence for a person intentionally or recklessly to touch another person ("B") sexually, without B's consent and without any reasonable belief that B consents. The offence is wider than this description, but this part is most relevant to the issue of sexual harassment.
7. Coercing a person to be present during sexual activity – section 5 – Sexual Offences (Scotland) Act 2009.
a. This provides that it is an offence for a person to intentionally engage in a sexual activity in the presence of another person (B) or intentionally cause B to be present while a third person engages in such an activity, without B's consent and without any reasonable belief that B consents, where this is done either for the purpose of obtaining sexual gratification or causing B to suffer humiliation, alarm or distress.
8. Coercing a person into looking at a sexual image – section 6 – Sexual Offences (Scotland) Act 2009.
a. This provides that it is an offence for a person to intentionally cause another person ("B") to look at a sexual image without their consent and without any reasonable belief that B consents, where this is done for the purpose of obtaining sexual gratification or causing B humiliation, alarm or distress.
9. Communicating indecently, etc. – section 7 – Sexual Offences (Scotland) Act 2009.
a. This provides that it is an offence for a person to send, by whatever means, a sexual written communication to or directs, by whatever means, a sexual verbal communication, or to otherwise cause another person ("B") to see or hear, by whatever means, a sexual written communication or sexual verbal communication where this is done without B's consent and without any reasonable belief that B consents, and for the purpose of obtaining sexual gratification or causing B humiliation, alarm or distress.
10. Sexual exposure – section 8 – Sexual Offences (Scotland) Act 2009.
a. This provides that it is an offence for a person to intentionally expose their genitals in a sexual manner to another person ("B") with the intention that B will see them, without B's consent and without any reasonable belief that B consents, where this is done for the purpose of obtaining sexual gratification or causing B to suffer humiliation, alarm or distress.
11. Voyeurism – section 9 – Sexual Offences (Scotland) Act 2009.
a. This provides that it is an offence for a person to observe, record etc. a person ("B") engaging in sexual activity or in a state of undress, without their consent and without any reasonable belief that B consents, and for the purpose of obtaining sexual gratification or causing B humiliation, alarm or distress. (The actual definition is a touch more complicated than set out here, so as to cover so-called 'up-skirting'.)
12. Disclosing, or threatening to disclose, an intimate photograph or film – section 2 – Abusive Behaviour and Sexual Harm (Scotland) Act 2016.
a. This provides that it is an offence for a person ("A") to disclose or threaten to disclose an intimate photograph of another person ("B") that is has not previously been disclosed to the public without B's consent, when in doing so A intends to cause B fear, alarm or distress, or is reckless as to whether their actions are likely to cause such fear, alarm or distress. There are a number of defences to this offence, including that B consented to the disclosure, that A reasonably believed that B consented.
Considering the evidence presented in Section 4, it is clear that this set of offences is inadequate.
8.2 What is missing?
We are recommending the creation of a Misogyny and Criminal Justice (Scotland) Act – the name in itself is a declaration of intent to address misogyny. The radical proposal is that this Act is created to address experiences of women. It will not be neutral law couched in the language of neutrality. It will address particular conduct experienced by women which derives from misogyny. We are recommending that the Act contains a Statutory Aggravation relating to Misogyny and three new offences.
The questions to be addressed for the Aggravation and each new offence are:
Why? What is new Aggravation or offence seeking to address?
How? How could the new Aggravation or offence be constructed?
8.2a A new StatutoryAggravationrelatingtoMisogyny, where crimes that are not excluded are aggravated by misogyny
There are clearly offences which are not recognised as being inherently misogynistic (e.g. criminal damage, assault) that can, in their execution, demonstrate misogyny or may be motivated by misogyny.
In light of the above, the Working Group was asked to consider whether the sex aggravation should be added to the Hate Crime and Public Order (Scotland) Act 2021. The Working Group's response is that misogyny should NOT be addressed in this way. The foundational rationale for hate crime is valid when considering misogyny:
"-The harm which hate crime causes: it has a profound effect on the victim and the community group to which the victim belongs.
-The symbolic function which legislation fulfils: it sends a clear message to the victim, the group of which the victim is a member, and wider society, that criminal behaviour based on bias and inequality will not be tolerated.
-The practical benefits from having a clear set of rules and procedures within the criminal justice system to deal with hate crime. This should provide a structure for consistency in sentencing and rigorous recording, allowing statistics to be kept, and trends to be identified and monitored; the fact that the perpetrator has committed a hate crime should be reflected in his/her criminal record; it will increase awareness of hate crime, encouraging reporting of offences and ensuring that victims of hate crime will be supported throughout the criminal justice process."
Notwithstanding this validity, there are some vital elements of the Act and the rationale behind it which means it is a poor fit for women:
- Women are not a minority.
- There is no pervasive male-sex equivalent to misogyny. Adding 'sex' to the Hate Crime and Public Order (Scotland) Act 2021 would not create law for women, as women, reinforced by international human rights frameworks which are clear that there should be a presumption against gender-neutral laws (CEDAW, Istanbul).
- It fails to recognise that misogyny is experienced by the vast majority of women and the prevalence of violence against women, some of which is still normalised by our society.
Having agreed a poor fit with the Hate Crime and Public Order (Scotland) Act 2021, but recognising that there are crimes that are aggravated by misogyny, the Working Group therefore concluded that a separate Statutory Aggravation for misogyny should be created.
In constructing the Statutory Aggravation, the following elements should be considered:
- The Working Group advises that the Aggravation defines misogyny as being prejudice and / or malice and / or contempt towards women. We add 'contempt' (which is not a feature of the traditional hate crime framework) as it speaks to denigration, disrespect or scorn towards women, which holds them in a subordinate position. This contracted definition of misogyny should be set against an understanding of the systemic injustice and inequality that women still face.
- Aggravations are about perceived membership of a group, as well as actual membership. Thus, the new Misogyny Aggravation should operate on that basis too. The Aggravation covers all women, as members of a single class. The use of the word 'perception' is a criminal law tool.
- There should be a 'carve out' of crimes where a misogynistic element is already recognised (and therefore appropriate sentencing is already possible). These crimes are rape, other sexual offences and domestic abuse. (Lists of the sexual offences which should be included can be found in the Criminal Procedure (Scotland) Act 1995 s210A or s288c or the Sexual Offences Act 2003 Sch 3). Similarly, the Misogyny Aggravation should not apply to crimes where the aggravation in the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 can be applied.
It is the Working Group's view that judges should take be able to take into account the Aggravation when sentencing and record what difference the Aggravation made, if any. When there is no difference, the court should state the reasons. In some cases this may result in longer sentences or higher penalties for these offences, within the existing maximum.
The Aggravation would not apply to the new offences which we are recommending (see below). As with other aggravations, a single source of evidence should be sufficient to prove the Misogyny Aggravation.
The Aggravation should not be used when it is a woman who is the victim of crime and there is no evidence of misogyny – for example:
- A man throws a bottle as he is being ejected from a pub and it hits a woman.
- A woman shopkeeper is injured in the course of a shoplifting.
The mere fact that a woman is the victim of a crime is insufficient.
Examples of situations where the Aggravation might apply
- A road-rage offence against a woman driver where there is a high level of sexist abuse and where she locks herself into her car for safety.
- Groups of football fans / men on a stag night use threatening and abusive language on a train and when women complain they turn on the women, showering them with beer, and abusing them in deeply sexist aggressive terms (e.g. "piss off you ugly fucking bitches…").
- The author of an incel manifesto deliberately drives his car into a group of women about to enter a feminist meeting.
- A man throws a brick through the window of a female politician's constituency office whilst screaming misogynistic language (e.g. "you fucking bitch / whore / cunt").
- A man assaults a woman journalist who writes about the male purchase of sex and calls for a ban, telling her she's a fucking buttoned up prude.
- Scratching 'cunt' on a car or the property of a woman (such as a journalist, MP or activist) who speaks out on male violence.
- Spraying graffiti on the house of a well-known writer deriding her feminism.
- Throwing paint on women demonstrating to "reclaim the night."
8.2b An offence of Stirring Up Hatred Against Womenand Girls
There is a rapidly growing culture, with far reaching impacts, of stirring up of hatred towards women and which causes women, as a group, to feel vulnerable and excluded.
It should be noted that often this stirring up of hatred presents as being hatred of a particular type of woman – a noisy woman, a successful woman, an opinionated woman. But the crime is about female identity. It is no defence to say "I only hate certain kinds of women – feminists, fat women or unfeminine women...". As equal citizens women are entitled to hold views, present themselves as they like, enjoy their sexuality and should not be required to conform to a male defined stereotype of womanhood. It cannot be for men to decide what is appropriate 'womanhood'. Antagonism towards particular 'kinds' of women ultimately denies the humanity of women as a whole.
- An offence of threatening or abusive but not merely insulting behaviour, or communicating threatening or abusive material, with an intention of stirring up hatred towards women and girls.
- This offence is not about the offender's perception of whether a specific individual is a woman. It is about stirring up hatred of women as a group.
- It is for the legislature to consider whether the term 'women' requires further definition in this context.
- Freedom of expression must be considered in determining whether the behaviour or communication was reasonable e.g. arguing against feminism, but no-one should enjoy freedom to stir up hatred towards women.
- An incel encourages his social media followers to assault women who refuse to have sex with men who have taken them on a date.
- An extremist religious preacher advocates physical punishment of women who have sex outside marriage.
The maximum penalty for the offence should align with the 'stirring up hatred' offences at section 4 of the 2021 Act (7 years on conviction on indictment).
8.2c An offence of Public Misogynistic Harassment
The Scottish Government in bringing forth the Hate Crime and Public Order (Scotland) Act 2021 legislation made clear in its Policy Memorandum at paragraph 245:
"In response to a recommendation made by the First Minister's National Advisory Council on Women and Girls to 'criminalise serious misogynistic harassment, filling gaps in existing laws' the Scottish Government made a commitment, in principle, to developing a standalone offence on misogyny. In order to progress this commitment, a Working Group is also being established to consider how the criminal law deals with misogynistic harassment, including whether there are gaps in legislation that could be filled with a specific offence on misogynistic harassment."
The Working Group has developed further the principle from the First Minister's National Advisory Council on Women and Girls, taking the evidence presented in Section 4 (above) and its view that visible, public commitments to legal protections designed for women are necessary.
It should be a criminal offence to engage in:
- Any sexual or abusive conduct, occurring in a public place, which is likely to cause fear, alarm, humiliation, degradation or distress to a woman or women, where either the accused intends to cause that effect or is reckless as to the likely effect of the conduct.
- Conduct is sexual if the reasonable person would consider it sexual. Abusive conduct is regularly interpreted by the Courts.
- The test of whether conduct is likely to cause fear, alarm, humiliation, degradation or distress to a woman or women should be an objective one. It should not be necessary to prove that any woman actually suffered any of these effects.
- The offence is committed whether or not the conduct is directed towards a particular woman or group of women.
By including 'abusive' conduct (which the courts are used to interpreting in s38 cases), we expand the scope of the offence beyond sexual behaviour to capture other types of offensive behaviour that fall short of threatening behaviour.
By having the threshold for criminality as a combination of 'likely to cause fear, alarm, humiliation, degradation or distress' and the mental element of intent or recklessness, the Working Group is aiming to strike a balance between capturing low level behaviour but not totally unwitting behaviour.
We deliberately state that the conduct need not be directed at a particular woman or group of women, to emphasise that there does not need to be a specific victim for the offence to be committed. The offence could be committed, for example, on a 'stag night' in a City Centre without the police having to check whether women actually witnessed the conduct.
Where the conduct is directed at a particular woman or group of women (i.e. where there is a specific victim), there should be no requirement to prove lack of consent or an absence of belief in consent. If the behaviour reaches the threshold for likely harm and is done with the necessary mental element, any question of consent or its absence should be irrelevant.
The list of potential harms; fear, alarm, humiliation, degradation or distress, reflects the sorts of responses typical of women (as evidenced in Section 4) – humiliation, distress etc. – rather than the reasonable person/man outcomes of fear and alarm. There is no doubt this new offence:
- Widens the scope of the criminal law.
- Lowers the threshold of criminality (compared to, for example, section 38, Criminal Justice and Licensing (Scotland) Act 2010).
- May create overlaps with existing law.
This widening of scope and lowering of the criminal threshold is the deliberate intention of the Working Group, and is reflected in thoughts on sentencing (see below). Overlaps will obviously result in Prosecutors exercising their discretion, a role that they are used to; by having a specifically labelled Public Misogynistic Harassment offence the Working Group aims to concentrate the minds of investigators and prosecutors.
A 'public place' is generally determined by the Courts. But it would include, for example, public transport, restaurants, clubs, bars, foyers and reception areas of hotels and public venues, as well as online platforms. Some places of work may be deemed 'public.' However, workplaces generally should not be beyond the reach of the criminal law. Too often, conduct in the workplace which is essentially criminal, such as sexual assault, Communication Act offences (involving offensive material sent to computers), sexual harassment and stalking, are considered the domain of employment law. Employees are encouraged to report such matters to HR departments but alas HR directors are often more interested in protecting an employer than the victim. Those at the receiving end of such behaviour should be encouraged to take them to the police.
- Showing a table of women in a nightclub extreme pornography on a phone.
- Intercepting a video conference call and posting extreme pornography into the space.
- Talking audibly about what should be done sexually to a woman or women.
- Telling a woman she is fat, ugly and sexually loathsome within the hearing of others.
- Making graphic sexual remarks to or about a woman stranger on the bus.
- Watching porn in a public place where it is clearly visible/audible.
- Gesticulating in a graphic sexual manner.
- Shouting sexually abusive remarks in the street about a woman's body.
- Using abusive language to a woman who refuses to engage in being "chatted up" at the bus stop.
- Rubbing up against a woman in a crowded place.
What would not be a defence?
- "When I said I wanted to give her a good fucking, I was just joking, taking the piss, paying her a compliment, the worse for drink."
- "When I swore and cursed and said she was an ugly fat cow that no one would fuck anyhow, it was not unreasonable and was said because she was mouthy and told me to fuck off."
- "It was just male banter."
- "I was exercising my freedom of expression."
- "I was brought up in a house where everyone had a filthy mouth. That's how we talk. I meant no harm."
Public Misogynistic Harassment should be a summary offence. While in the spectrum of offending this is not the most serious of conduct, its impact must not be seen as negligible. The response may often be fines, orders requiring Misogynistic Abuse Awareness Training or alternative resolutions. But there may be circumstances where a custodial sentence is appropriate.
Repeat offending should draw down heavier penalties. We would recommend that the vast majority of these offences would not attract the Sexual Offences Notification Requirements (meaning the convicted individual would be placed on the Sex Offenders Register) and we do not propose this offence is added to schedule 3. However, in exceptional circumstances judges may exercise their discretion and Sexual Offences Notification Requirements could be applied.
8.2d An offence of Issuing Threats of, or Invoking, Rape or Sexual Assault or Disfigurement of Women and Girls online and offline.
The issuing of threats of, or invoking, rape or sexual assault or disfigurement sits firmly within the Working Group's definition of misogyny. The Working Group recommends that this offence is constructed to cover:
- threats to rape or sexually assault or disfigure that women and girls receive (for example, "I'll slash your pretty little face you fucking bitch"); and
- the invoking of these harms, that is the use of the language of male violence, reinforcing the subordinate status of women (for example "someone should slash that pretty little face of yours you fucking bitch").
By weaponizing rape, sexual assault or disfigurement, the perpetrator is enacting a violent display of male power and reinforcing women's objectification and subordination (see Section 7.2 above). The potential impact of these threats or this language may seem trivial to the perpetrator, if they think about it at all. The perpetrator may not ever intend to carry them out, or for them to be carried out. But the harms associated with these threats, and with this invoking of male violence, go beyond the trivial, particularly when they result in a 'pile on,' or joining in by others (sometimes in a matter of minutes). They cause serious distress and anxiety. For many women and girls, the experience has the 'chilling effect' of causing them to retreat from public discourse, public roles (like politics) - and even from participation in classroom discussions.
It is also important to note that the impact of the conduct that this offence is targeting is not limited to the immediate 'victim' of the conduct. Many women in the public eye have spoken openly about their experiences of receiving constant streams of misogynistic language and threat. It may be that specific women have become inured to this conduct. But the wider reaching impact on women and girls who know that this is happening, and who see it as a warning as to what their life might become if they raise their heads or their sights too high, must be taken into account in understanding the seriousness of the conduct that this offence is seeking to address.
It will be offence to issue threats of, or invoke, rape or sexual assault or disfigurement to women and girls. Whilst it is likely that the majority of this conduct is online, it may also be offline.
The impact of this offence should not need to be proved, nor should a mens rea. The conduct of itself is enough.
Should it become necessary to define a woman for the purposes of this offence, that is a role for the legislature. It is, however, important to the Working Group that this offence should not create a situation where a woman needs to prove that she is a woman. Should difficulty arise, the Working Group suggests that s255A of the Criminal Procedure (Scotland) Act 1995 could provide a useful model.
- "I'd love to watch you getting your fucking teeth kicked in, you slut."
- "You need to be raped."
- "Somebody should rape you."
- "#Iwouldnteven rape [woman's name]."
- "Anyone want to fuck [woman's name] with me?"
- "A good spit-roasting is what you need."
- Sending film clips of rapes, sexual assaults or disfiguring attacks.
Using or Invoking Threats of Rape or Sexual Assault or Disfigurement of Women and Girls online and offline could be a summary or an indictable offence, depending upon the seriousness of the case. Factors to consider could include the age of the victim, whether there has been repetition of the behaviour and / or whether doxxing (the sharing of private and identifying information) has occurred.
8.3 Challenges and counter arguments to the creation of new law
8.3a Gendered law
The Working Group considered the appropriateness of gendered – 'women only' law and whether it can be justified. The Working Group's view, ultimately, was that the idea of the neutrality of law is largely a fiction. When law is created which is designed to protect men as well as women, it usually creates a blur around the ways in which women's lives can be markedly different from those of men and an ignorance of the life experiences of women, in terms of threat and fear in the public space. This blurring, or denial of difference of experience and of offender profiles, is never adequately challenged. And by seeking to tackle misogyny through neutral law, the Working Group would be advocating for a solution that suggests that the problem is a neutral one. In fact, the evidence is clear that there is a pressing social need to address behaviours towards women. The Working Group recognised that there are men who need protection from certain things, but that they do not need protection from public sexual harassment and misogyny.
The Equality Act 2010
The Equality Act 2010 creates a general duty to have due regard to Equality across all organisations and services. Its purpose is to eliminate discrimination, harassment, victimisation and other prohibited conduct, to promote equality of opportunity between people who share a protected characteristic and people who do not share it, and to foster good relations. Men and women can be found sharing all the characteristics listed. Racism or homophobia, ageism etc. can be experienced by both men and women. But unlike men, women can experience something unique - discrimination, harassment and victimisation and other harmful conduct simply because of their womanhood. It is for this reason that new law should be created to provide redress and justice for women facing misogynistic behaviour. The denial of this stark difference in the lived experience of men and women has confounded legal reform – and a woman-only law is a proportionate response to the scale and impacts of the problems outlined in this report. Women will not enjoy equality while misogyny is inadequately unaddressed.
8.3b Risks of over criminalisation:
The Working Group's discussion with Police Scotland suggested that the Police are sensitive to the issue of over criminalisation. It was also acknowledged that being able to record data to illustrate the scale of the problem, as well as the characteristics of perpetrators, would enable greater insight as well as vigilance around potential discrimination and proportionality.
8.4 Prosecution policy
Mindful of the risk of over criminalisation, the Working Group recommends that in drafting prosecution policy, the Lord Advocate considers a full suite of options for the Public Misogynistic Harassment offence, including:
- Police recorded warnings.
- Diversion to social work interventions (which may require the provision of new or tailored interventions not currently available, focused on raising awareness of the impact of harassment and generating empathy).
- Warnings from the Crown Office and Procurator Fiscal Service.
- On the spot fines.
The proposed offences must be applied in practice in a way that protects alleged perpetrators' due process and other human rights under domestic and international human rights law. Particular care should be taken when the alleged perpetrator is a person under the age of eighteen and their rights under the Convention on the Rights of the Child should be guaranteed.
8.5 Further on implementation
It is clear from the study of other jurisdictions (see Section 6) and from evidence of shifting social norms more widely, that new law will be necessary, but not sufficient, to tackle misogyny. Sound precedent exists for an effective implementation approach from the Domestic Abuse (Scotland) Act 2018 which, the Working Group understands, brought together all relevant agencies to take the next steps with legislation. It will also be critical to invest adequately in training within Police Scotland and the wider criminal justice system. This training cannot be a 'one off,' centred only on the implementation of new law; it must become part of the ongoing professional development of all interested professionals, but particularly in the Police, the Crown Office and Procurator Fiscal Service and the Judiciary.
Police Scotland will play a crucial role in implementation and this role will be played out in an environment of doubt and uncertainty as to whether the Force has what it takes to tackle misogyny, not least after the conviction of police officer Wayne Couzens for Sarah Everard's murder and recent media stories about the culture within Police Scotland (see Section 5.4). The Working Group noted that there are data points which suggest that the force has a long way to go for women to feel that their lives, and the nature and impacts of misogyny, are properly understood by those whose role it is to protect their freedoms and keep them safe.
The Working Group has highlighted that prosecution policy should consider diversion to social work interventions. Appropriate investment will be necessary to ensure that this provision is possible.
Data and insights will play a critical role in further policy development and in evaluating the effectiveness of these recommendations. It is recommended that investment is made in women being able to report (without the requirement for follow up) instances of public misogynistic harassment to Police Scotland through an app or other mobile enabled technology. This of course will require investment, not just in the technology (although there are existing platforms such as the app Follow It), but, critically, in public awareness raising so that the technology is adopted and deployed to its full potential.
The Working Group sounds a note of caution when it comes to talking blithely about a need for 'culture change' in the Police, or more widely in society.
This note of caution is brought to life by former Her Majesty's Inspector of Constabulary, Zoe Billingham:
"It's [the IOPC report released on 1 February 2022 on the Met Police] actually eye watering, the comments… despicable, disgusting, disgraceful. Enough simply is enough. But how many times have we been here? You and I [the radio presenter] spoke on the morning that Wayne Couzens was sentenced and we talked about the need for the police culture to change I think we've got to be really honest and start talking not about cultures - that's quite a kind of cosy nice sounding word isn't it? We've got to start talking about racism, bullying, misogyny, abuse of position; demeaning, disgraceful, discriminatory behaviour and that conversation needs to be had in forces up and down the land on a daily basis. We don't want to send officers on a course once every three years to talk about 'how should I behave as an officer,' this needs to be part of the current day to day conversation within policing…"
Developing and improving ongoing training, building reporting mechanisms and raising awareness will all require investment and this investment should be prioritised in order to ensure that the new Act results in real differences to the lives of women and girls.
8.6 Summary of recommendations
The Working Group therefore recommends:
1. The creation of a "Misogyny and Criminal Justice (Scotland) Act." The Act would:
i. Create a new Statutory Aggravation where a crime such as assault, criminal damage or threatening or abusive behaviour is aggravated by misogyny.
ii. Create a new offence of Stirring Up Hatred Against Women and Girls.
iii. Create a new offence of Public Misogynistic Harassment.
iv. Create a new offence of Issuing Threats of, or Invoking, Rape or Sexual Assault or Disfigurement of Women and Girls online and offline.
These are intended as a holistic response, not a menu of options.
2. The Working Group concluded too that legislative change is essential but insufficient to address the insidious problem of misogyny in Scotland. In addition, therefore, to the creation of a Misogyny Act, the Working Group recommends that the Scottish Government:
i. Involves all relevant stakeholders (including women's groups and the Police Scotland) in implementation of the Misogyny Act.
ii. Provides sufficient resources for:
a. Education and training within the criminal justice system and for multi-agency support and awareness (medics, dentists, social services, educators) as well as the development of any new interventions such as awareness training required for diversions to social workers from the Procurator Fiscal).
b. Resourcing social work and other interventions, as required by prosecution policy.
c. Technology capability and police officer capacity for recording and reporting.
d. Campaigning and awareness – within public institutions, workplaces, education.
e. Learning from projects and good practice in other places and jurisdictions – e.g. Nottingham, Washington DC, France.
8.7 Finally, on implementation
In submissions to the Working Group and through some of the wider discussion of misogyny, the concern is frequently raised that 'misogyny is a complicated idea, it's an élitist word, no-one knows what it means…'. This argument seems somewhat self-limiting. Misogyny has been a blindspot in the law, but it is increasingly recognised as a relatable concept that impacts women and girls everywhere – wives, sisters, partners, daughters. Education can breathe fresh meaning into the word – more aligned to contemporary discourse than to its classical derivation. And through this education, the commitment to its elimination will grow.
The eradication of misogyny is a challenging ambition. It will depend on legislating appropriately and a start should be made by implementing the recommendations from this Review.
There must also be adequate resourcing to support the implementation of the legislation by knowledgeable and committed leaders, criminal justice personnel and those working in other agencies. Without these steps being taken, women and girls will continue to face inequality and injustice. Our hopes for a society where the human rights of everyone are respected and where all can thrive and reach their potential will only be possible if we tackle this most deeply entrenched prejudice.
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