Reforming the criminal law to address misogyny: consultation responses

Executive Summary

In February 2021, the Scottish Government established an Independent Working Group on Misogyny and Criminal Justice in Scotland, chaired by Baroness Helena Kennedy KC. The Working Group was tasked with considering how the Scottish criminal justice system deals with misogyny, including looking at whether there are gaps in the law that could be addressed by a specific criminal offence to tackle such behaviour.

The Group published its final report on 8 March 2022. The report recommended the creation of three new criminal offences:

• Public Misogynistic Harassment;
• Threatening or invoking rape, sexual assault or disfigurement of women and girls on and off line; and
• Stirring up hatred of women and girls.

The report also recommended a new statutory sentencing aggravation concerning misogyny.

The report’s recommendations were considered by the Scottish Government who proposed five new criminal laws in response to these recommendations.

On 8 March 2023, the Scottish Government launched a public consultation to seek views on draft legislative provisions which give effect to the recommendation for criminal law reform contained in the final report of the Working Group.

Respondent Profile

In total, there were 243 responses to the consultation paper, of which 43 were from organisations and 200 from individuals. A breakdown of responses is provided in the respondent profile table on page 9.

Summary of questions

There was majority support for all of the proposals consulted upon. Specific details of this majority support are provided below against each proposal.

More generally across all the consultation questions, a number of similar issues tended to emerge repeatedly to be considered as legislation is refined. These are outlined in the paragraphs below.

• The need for non-legislative approaches to be adopted, either to sit alongside new legislation or indeed suggested by some instead of new legislation. These approaches could include education within the curriculum, restorative justice approaches or public education campaigns as are currently given to speeding drivers. The perception was that these approaches would help to bring about the necessary culture change to reduce misogynistic attitudes and behaviour.
• There was also a view that there is a need for guidance and training for professionals within the criminal justice sector.
• There were some calls for clarity in definitions throughout and as to how the proposed offences would sit alongside existing legislation such as the Hate Crime and Public Order Act.
• Some respondents had concerns over how these offences would be proved.
• A key opposition to the proposed offences was the perception that these types of offences are already covered by existing legislation.
• Smaller numbers of respondents had a perception that the proposed legislation was against the existing Equality Act (Scotland) 2010 or the Human Rights Act 1998.
• Some respondents felt any new legislation should be gender-neutral or that a new offence of harassment whereby the victim of which was a man or boy would need to be introduced to sit alongside the new offence of misogynistic harassment.

An offence of public misogynistic harassment (Qs 1-6)

• Around three in four respondents supported the proposal to create an offence of misogynistic harassment (Q1).
• Around three in four respondents agreed that the offence of misogynistic harassment should be capable of being committed in all places (Q3).
• Nearly half of respondents agreed with the inclusion of a reasonableness defence to the offence of misogynistic harassment (Q5).

Key themes emerging across these questions included:

• The need to recognise and address misogynistic harassment and create better safety and protection for women and girls.
• The suggestion that the introduction of an offence of misogynistic harassment would help to send a clear message about the seriousness of this offence.
• There was support for the list of effects on the victim.
• A minority of respondents supported a maximum penalty of 7 years imprisonment for the offence of misogynistic harassment, albeit there were calls for the penalty to relate to the severity of the offence.
• A reasonableness defence was seen to provide a safeguard for ensuring any legislation is not abused, albeit there were a few concerns over how this could be proved.

An offence of misogynistic behaviour (Qs 7-13)

• Over half of respondents supported the proposal to create an offence of misogynistic behaviour (Q7).
• Over half of respondents agreed that the offence of misogynistic behaviour should be capable of being committed in both private and public places (Q9).
• Almost half of respondents agreed with the inclusion of a reasonableness defence to the offence of misogynistic behaviour (Q11).
• Over half of respondents agreed with the inclusion of a freedom of expression provision (Q12).

Key themes emerging across these questions included:

• The need to recognise the existing culture of misogynistic behaviour and the damage it can cause to women and girls, even if the behaviour is not directed at a specific person.
• The inclusion of reasonableness and freedom of expression defences would allow for justice to be done and ensure fairness within the criminal justice system, while allowing for reasonable discussion and debate around issues affecting women and girls. That said, a few respondents were opposed to these defences as it was felt these could be used as a loophole.
• There were some concerns that freedom of expression needs to be considered in relation to artistic expression so as to ensure that artists and entertainers do not fall foul of the legislation.
• There was general agreement with the list of effects that misogynistic behaviour can have on women and girls, although those who disagreed commented that these effects are subjective and can be difficult to prove.
• There was a perception from some respondents that misogynistic behaviour can be worse in private places than in public.
• It was felt the penalty for this offence should be consistent with other similar offences and match the severity of the behaviour.
• There were some concerns that the offence would infringe on the concept of freedom of speech.

An offence of issuing threats of, or invoking, rape or sexual assault or disfigurement of women and girls online and offline (Qs 14-20)

• Over three in four respondents supported the proposal to create a specific offence of ‘threatening or abusive communications to women and girls which reference rape, sexual assault or disfigurement’. Less than one in ten did not support this proposal (Q14).
• A majority of respondents (over three in four) agreed that the offence should be committed where a message is threatening or abusive, or both, and makes reference to rape, sexual assault or disfigurement (Q15).

Key themes emerging across this chapter questions included:

• The need for legislation to deal with the impact of misogyny and misogynistic communications, particularly as this type of behaviour is perceived to have increased a lot in recent years.
• There was a perception that increased resources would be needed if new legislation is introduced.
• In considering the proposed defences to the offence (Q18), there was support for the defence of ‘reasonableness’ but less support for ‘improbability’.
• Views on the proposed maximum penalty of 5 years for this offence were mixed, although there were some calls for this to be in line with penalties for existing and similar offences such as threatening or abusive behaviour.

A new statutory aggravation relating to misogyny (Qs 21-25)

• Around two in three respondents supported the recommendation in Baroness Kennedy's report that there should be a statutory sentencing aggravation concerning misogyny (Q21).
• Over half of respondents agreed with the approach contained in the draft provision that an offence is aggravated in the two specified situations (Q22).
• Over half of respondents agreed with the Working Group’s recommendation that the statutory aggravation should not be capable of being libelled for certain offences because these offences are inherently misogynistic, and this would already be taken account of when sentencing the offender (Q23).

Key themes emerging across these questions included:

• The statutory aggravation allows for misogynistic motivation to be reflected in sentencing.
• The statutory aggravation will provide extra protection and safety for women.
• However, some respondents felt the recommendation is sexist in that it discriminates or fails to protect men or people who are not women. Requests were made to add protections for men or other non-women.
• The wording of the two situations met with general approval; the introduction of ‘contempt’ was welcomed by some while others preferred the use of ‘prejudice’. The use of ‘ill-will’ and ‘malice’ was criticised by some respondents.
• There was support for the view that certain offences are inherently misogynistic. The list of the offences in respect of which the misogyny aggravation cannot be libelled met with general agreement.
• However, there was some scepticism about misogyny always being taken into account when sentencing an offender.

An offence of stirring up hatred against women and girls (Qs 26-29)

• Around two in three respondents supported the report’s recommendation that there should be an offence of stirring up hatred of women and girls (Q26).
• Almost three in four respondents agreed with the report’s recommendation that the offence should be committed where a person behaves in a threatening or abusive manner or communicates threatening or abusive material, with the intention of stirring up hatred of women and girls (Q27).

Key themes emerging across these questions included:

• There was agreement that it was important to recognise the stirring up of hatred as an offence in law as this is not covered by existing criminal law.
• Some respondents felt that stirring up hatred can be an aggravating factor which can lead to more serious incidents and behaviour.
• Concerns were raised over a perceived rise in online hatred of women and girls, and the rise of incel groups and culture. Those who supported the offence thought it should be used to prosecute behaviour of this kind.
• However, some respondents felt the offence would be sexist or discriminatory unless there were similar protections put in place for men and boys. There were suggestions for a more general offence of ‘sexist stirring up of hatred’.
• Some concerns were voiced about the terminology of ‘stirring up hatred’ being too vague.
• There was support for the view that sending threatening or abusive communications and material which is intended to stir up hatred of women and girls should have consequences.
• Demonstration of ‘intent’ was seen as vital in constituting the offence; however defining and proving ‘intent’ was seen as problematic.
• There was general agreement that the proposed approach will protect freedom of expression. There were calls for a fair and reasonable balance between freedom of expression and preventing hatred.
• However, some respondents voiced concerns about freedom of expression being used as an excuse or defence for abuse and stirring up hatred.

Impact assessments (Qs 30-37)

Key themes emerging across these questions included:

• Positive impacts were foreseen on women’s and girls’ human rights, and women’s and girls’ equalities. It was thought the proposals would strengthen their protection.
• But negative impacts were foreseen on men’s and boys’ human rights and equalities, due to an advantage being created for one demographic only, resulting in discrimination.
• The importance of upholding human rights, equalities and other obligations was reinforced. There were some concerns that the proposals could breach some regulations and conventions.
• Fears were expressed about negative impacts on freedom of expression (e.g. limitations on expressing opinions).
• Sex, gender and their relationship or classification with regard to the protected characteristics and the proposals was a focus for discussion, with varied viewpoints on this.
• Positive impacts were foreseen on women socio-economically speaking, though there was some concern over impacts on lower socio-economic groupings, particularly over policing and lack of access to justice and the law; the latter point was also raised in relation to island communities.
• In general, island communities were otherwise seen to be impacted in the same ways as all others by the proposals.
• Positive impacts were foreseen on workplace culture, particularly with regard to women’s safety at work.
• Some concerns were raised about the work necessitated for training and HR policy renewal and also fears about misplaced or false misogynistic accusations in the workplace. Some industry sectors were the subject of specific concerns.
• Few impacts were foreseen on privacy and data protection, or on the environment.
• There were some calls for the proposals to be implemented in concert with education to produce cultural change.
• With all impact assessments, it was felt that much would depend on how the legislation is implemented in practice.