Reforming the criminal law to address misogyny: consultation responses

Introduction

Background

1. Misogyny can be defined as ‘prejudice, malice and / or contempt for women^[1]’ and covers a wide range of behaviour. In general, the law operates from a basis of neutrality so that laws are available to both men and women. However, given that there are particular types of behaviour which target women, there have been suggestions that the harmful effects of misogyny mean that women and girls require new protection through the criminal law.

2. 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 Working Group was also asked to consider whether the statutory aggravation by prejudice and/or stirring up of hatred offence contained in the Hate Crime and Public Order (Scotland) Act 2021 should be extended to the characteristic of ‘sex’.

3. The Working Group first sought to agree a working definition of misogyny to inform its work. The definition agreed was:

“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.”

4. The Working Group published its final report in March 2022. It recommended the creation of what is described as ‘gendered law’ which is specifically intended to protect women and girls. The report’s specific recommendations for reform of the criminal law were:

• A new statutory aggravation related to misogynistic behaviour where a crime such as assault, criminal damage/vandalism or threatening or abusive behaviour is aggravated by misogyny.
• A new offence of stirring up hatred against women.
• A new offence of public misogynistic harassment of women.
• A new offence of issuing threats of, or invoking, rape or sexual assault or disfigurement of women and girls online and offline.

5. The report recommended that, in keeping with the position that gendered law is required to address misogyny, the characteristic of ‘sex’ should not be added to the Hate Crime and Public Order (Scotland) Act 2021. The report’s recommendations were considered and the Scottish Government (SG) proposed five new criminal laws in response to these recommendations.

6. In considering the report’s recommendation, the Scottish Government came to the view that the offence of 'public misogynistic harassment' sought to criminalise two quite different forms of behaviour.

7. The first can best be described as misogynistic harassment. That is to say misogynistic behaviour that is directed at a specific woman or girl, or group of women or girls, which amounts to harassment of that woman or girl, or group of women or girls.

8. The second type of behaviour which the report considered should be covered by their proposed offence can be described as misogynistic behaviour which is not necessarily directed at any particular identifiable victim or group of victims.

9. The Scottish Government considered that these two types of behaviour are sufficiently different that the working group’s recommendation for an offence of ‘public misogynistic harassment’ could best be implemented by the creation of two distinct offences: an offence of misogynistic harassment and one of misogynistic behaviour.

10. Subsequently, on 8 March 2023, the Scottish Government launched a public consultation^[2] 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. The consultation closed on 23 June 2023 and a total of 248 responses were received. The five new proposed criminal laws being consulted on were:

• An offence of misogynistic harassment: this would make it a criminal offence for a person to behave in a way that amounted to misogynistic harassment directed at a woman or girl or group of women or girls.
• An offence of misogynistic behaviour: intended to deal with misogynistic behaviour which is likely to have the effect of causing a women or girl to experience fear, alarm, degradation, humiliation or distress where that behaviour is not directed at a specific woman or girl (or group of women and girls) and so could not be described as ‘harassment’.
• A statutory aggravation concerning misogyny: this would be used where an offence had a misogynistic motive or a person demonstrated misogyny whilst committing a crime. The statutory aggravation would ensure that this motive is recorded and taken into account when sentencing.
• An offence of threatening or abusive communications to women or girls that reference rape, sexual assault or disfigurement: this offence criminalises sending an abusive message to a woman or girl that refers to rape, sexual assault or disfigurement.
• An offence of stirring up hatred against women and girls: this offence is concerned with the effect that the behaviour may be likely to have on the people in whom the perpetrator is seeking to stir up hatred of women and girls.

11. Findings from this consultation analysis will be used to help the Scottish Government take forward a Bill on misogyny and the criminal law in this Parliamentary session. The timing of the introduction of the final Bill will be considered as part of wider legislative planning.

Respondent Profile

12. In total, after removing any blank and duplicate responses, 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 following table. As can be seen, the highest number of organisation responses were submitted by women’s organisations, followed by those in the equalities sector (10 responses), justice / legal (6) and third sector (2).

Table 1: Respondent Groups

Respondent types and numbers

Organisations: 43

Equalities: 10

Justice / Legal: 6

Third Sector: 2

Women’s Organisations: 16

Other: 9

Total Individuals: 200

Total Respondents: 243

13. A list of all those organisations that submitted a response to the consultation and agreed to have their name published is included in Appendix 1.

Methodology

14. Responses to the consultation were submitted using the Scottish Government consultation platform Citizen Space, by email or by post; most respondents submitted their views via Citizen Space. Where responses were submitted in email or hard copy, these were entered manually onto the Citizen Space system to create a complete database of responses.

15. The number responding at each question is not always the same as the number presented in the respondent group table. This is because not all respondents addressed all questions. This report indicates the number of respondents who commented at each question. Additionally, some organisational responses were ambivalent or did not offer a definitive view on specific proposals. In some instances, they noted pros and cons for a specific proposal and thus sometimes opted not to answer a yes / no question with a definitive answer.

16. The researchers examined all comments made by respondents and noted the range of issues mentioned in responses, including reasons for opinions, specific examples or explanations, alternative suggestions or other comments. Grouping these issues together into similar themes allowed the researchers to identify whether any particular theme was specific to any particular respondent group or groups.

17. When referring to respondents who made particular comments, the terms ‘a small number’, ‘a few’ and so on have been used. While the analysis was qualitative in nature, as a very general rule of thumb it can be assumed that: ‘a small number’ indicates up to around 6 respondents; ‘a few’ indicates around 7 to 9; a minority refers to 10 or more but less than half the respondents; and a majority refers to over half the respondents.

18. When considering group differences however, it must also be recognised that where a specific opinion has been identified in relation to a particular group or groups, this does not indicate that other groups did not share this opinion, but rather that they simply did not comment on that particular point.

Analysis of responses

19. The analysis of responses is presented in the following chapters which follow the order of the questions raised in the consultation paper. While the consultation gave all who wished to comment an opportunity to do so, given the self-selecting nature of this type of exercise, any figures quoted here cannot be extrapolated to a wider population outwith the respondent sample.

20. The Citizen Space database was exported to an Excel working database for detailed analysis. Where respondents requested anonymity and / or confidentiality, their views have been taken into account in the analysis but quotations have not been taken from their responses. Quotations have been included where they illustrate a point of view clearly and have been selected across the range of respondent sub-groups.

21. Throughout responses, some respondents referred to personal experience of misogyny. In order to retain anonymity for these respondents, we have not made specific reference to any individual personal information.

22. Some respondents provided commentary on a specific question in their response to another question. Where this has occurred, responses have been moved to the relevant question to avoid duplication.

23. During the consultation, respondents were asked to give some personal information such as their name and email address, although they were not asked to state their gender at any point. In order to enhance the consultation analysis, where possible, the researchers applied a male / female gender to respondents in order to ascertain whether there were any differences in attitude between these two groups. This classification was based on information provided by respondents within their response and / or based on the name of each respondent. Where the gender of each respondent was not obvious (e.g. the name ‘Alex’), no gender was applied to this respondent. This additional information has shown that throughout the consultation, male respondents tended to be less supportive of the proposed legislation than their female counterparts and more concerned about the need for gender-neutral legislation.