Reforming the criminal law to address misogyny: consultation responses

An Offence of Public Misogynistic Harassment

Key Findings

Across the questions asked in this chapter, the same issues tended to emerge repeatedly.

• There was majority support – around three in four respondents – for the proposal to create an offence of misogynistic harassment (Q1), around three in four agreed that the offence of misogynistic harassment should be capable of being committed in all places (Q3) and 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:

• Some calls to recognise and address misogynistic harassment and create better safety and protection for women and girls.
• Views that the introduction of an offence of misogynistic harassment would help to send a clear message about the seriousness of this offence.
• There were some calls for clarity in definitions and how this offence would sit alongside existing legislation such as the Hate Crime and Public Order Act.
• There were concerns over how to prove this offence.
• A key opposition to this new proposed offence was the view that this type of offence is already covered by existing legislation. Smaller numbers of respondents also held the view that the proposed legislation is 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 against men and boys would need to be introduced to sit alongside the new offence of misogynistic harassment.
• 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.
• Alongside legislative proposals, there were some calls for non-legislative approaches to be adopted, either to sit alongside new legislation or instead of new legislation. These approaches could include education within the curriculum, restorative justice approaches or public education campaigns. There were also some calls for guidance and training for professionals within the criminal justice sector as well as some suggestions for fixed penalty notices to be issued as are currently given to speeding drivers.

24. The consultation paper noted that the offence recommended in the report was seeking to criminalise two quite different forms of behaviour. The first could be described as ‘misogynistic harassment’; i.e. 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. The second type of behaviour could be described as misogynistic behaviour which is not necessarily directed at any particularly identifiable victim or group of victims. It was felt 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: one of misogynistic harassment and one of misogynistic behaviour. This would allow for better clarity as to the conduct being criminalised through the structure of each offence and for any statutory defences that might be required to be appropriately tailored to the specific conduct that each offence is intended to criminalise.

25. The consultation paper proposed that the structure of the offence of misogynistic harassment would be similar to that used for existing offences such as stalking at Section 39 of the Criminal Justice and Licensing (Scotland) Act 2010 and abuse of a partner or ex-partner at section 1 of the Domestic Abuse (Scotland) Act 2018. It set out a five-part test for when the offence of misogynistic harassment would be committed. These were:

• Behaviour in a manner that is threatening, sexual or abusive (or a combination of these things).
• The behaviour is directed at a particular person or group of people.
• The behaviour is so directed at that person or group of people by reason of their being, or one or more members of the group being, or presumed to be, a woman or girl.
• A reasonable person would consider that the behaviour would be likely to have the effect of causing the person or a member of the group to suffer fear, alarm, degradation, humiliation or distress.
• The accused either intends their behaviour to have one of these effects under requirement four, or else is reckless as to whether their behaviour is likely to have one or more of these effects under requirement four on that person (there is not a requirement that the behaviour must actually have this effect).

The proposal to create an offence of misogynistic harassment

Q1: Do you support the proposal to create an offence of ‘misogynistic harassment’ which relates to harassment of an identified victim or victims?

26. As shown in the following table, of those who responded to question one, there was a high level of support for the proposal to create an offence of ‘misogynistic harassment’ (around three in four respondents supported this proposal compared to less than one in five who did not). All organisations providing a response supported the creation of this offence, and the only opposition came from individuals. Across the sub-groups used in analysis, there was little by way of differences.

27. A total of 159 respondents went on to give reasons for their answer or to make further comments at this question. A small minority of these respondents noted they had personal experience of misogynistic harassment.

Support for the proposed offence

28. Of those who supported the creation of an offence of misogynistic harassment, a minority of mostly individuals noted that this is long overdue or that there is a need to recognise and address this type of behaviour. A similar number of respondents across most sub-groups also commented that this will offer better safety and protection for women and girls, with one women’s organisation commenting that the laws we currently have do not address this range of complex behaviours. There was an acknowledgement from many that the male harassment of women is particularly common and prevalent and the offence is needed to offer support to women.

29. A minority of respondents – across all sub-groups – also commented that this will help to send a clear message about the seriousness of this offence, that it offers a clear legal avenue in which to report misogynistic harassment and that this in turn will help to bring about a change in culture and attitudes. Linked to this issue, there were a few comments on the need to shift deeply rooted misogynistic attitudes and, that while a new offence is welcomed, there is also a need to address this issue through other non-legislative channels such as the education system. Alongside the importance of reducing misogynistic harassment through education, an equalities organisation also noted that there will need to be a stratified approach that includes public education campaigns and training for justice system staff.

Concerns over the introduction of this offence

30. While there were high levels of support for the introduction of this offence, a minority of respondents noted concerns over some details of the proposed offence. Key was that there needs to be more clarity over what constitutes misogynistic harassment or that this offence may be difficult to prove. A small number of organisations – mostly in the equalities sub-group – commented on the need for culture change within the police force so that women feel they can engage with the police in reporting this kind of crime. A women’s organisation noted concerns that women tend to be marginalised by the criminal justice system when attempting to take abusers to court because, in their view, the system facilitates and maintains gender stereotypes and inequalities.

31. Sitting alongside this issue, a very small number of organisations suggested the need for a clear set of guidelines as to what types of behaviour would constitute misogynistic behaviour. An example provided by a women’s organisation was that the criminal justice system regards harassment as behaviours that happen more than once, but the proposed offence would need to indicate that a single incident could constitute misogynistic harassment.

Opposition to the creation of this offence

32. The key issue raised by respondents who were not in favour of this offence being introduced was that in their view, this type of offence is already covered by existing legislation and there is no need to introduce a new offence of misogynistic harassment.

33. A minority of respondents commented that men should have equal protection under the law and that the new offence should be gender neutral or that an offence of harassment against men and boys should be created to sit alongside it. While respondents were not asked to state their gender, it appears from the names of consultation responses that more respondents who took this view were male than female. A small number of respondents commented that all legal and criminal frameworks should be gender inclusive and that this is an essential principle of jurisprudence and good governance.

34. Small numbers of respondents also commented on whom this offence should include, although there was no consistency on this issue. Small numbers of respondents referred to trans women, to biological women or trans-identified females but not trans-identified men.

35. A few respondents perceived that the new offence would be unlawful and cited Article 14 of the Human Rights Act 1998 which does not allow discrimination on the grounds of sex. Another respondent perceived that the Equality Act (Scotland) 2010 notes that sex is a protected characteristic and that creating a new gendered law would be illegal.

36. Alongside this, there were a small number of comments from respondents in women’s organisations and the equalities sector that there needs to be greater clarity on how this offence would sit alongside existing legislation such as the Hate Crime and Public Order Act. Two individuals referred to the need for a revised approach to reflect the ‘Equally Safe’ agenda.

Q2: Do you have any comments on the list of effects on the victim (fear, alarm, degradation, humiliation and distress) that trigger the offence being committed?

Support for the list of effects

37. A total of 120 respondents commented at this question. The key theme, from a minority of respondents across all sub-groups, was agreement with this list of effects, and a few of these respondents also noted their support for the ‘reasonable person test’. One equalities organisation noted the list is appropriate as it acknowledges the existence of power imbalances in offending behaviour and consolidates various tests from other areas of legislation such as the Domestic Abuse (Scotland) Act 2018 and the Sexual Offences (Scotland) Act 2009. Another equalities organisation welcomed the shift away from focusing on women as victims to focusing on men who carry out these crimes as this ensures the proof of burden does not lie with the woman but focuses on the actions of the perpetrator.

38. An organisation in the ‘other’ sub-group commented:

“We welcome the longer list of effects on the victim as an important step to recognise in law the horrendous effects that misogynistic harassment can have on women. The Government has taken care to understand the experiences described by women and we commend them for this.”

39. Once again, there were a few calls for greater clarity and guidance and training for professionals in the criminal justice sector so they properly understand the effects of misogynistic harassment. A women’s organisation suggested that a better approach would be to pattern this new offence after the Domestic Abuse (Scotland) Act 2018 by establishing a non-exhaustive list of effects and to use a test of whether a reasonable person would think the behaviour in question was reckless about causing harm.

Opposition to the list of effects

40. Of those opposed to this list – mostly individuals – a minority felt these were too subjective in nature and / or could be very difficult to prove. A few individuals also felt these could be open to misinterpretation and lead to false accusations. A very small number of respondents commented that each of these effects could have different impacts on different people.

Additional effects to be included

41. A minority of respondents, across all sub-groups, provided additional effects that they felt should be considered. These included:

• Confusion.
• Anger.
• Deliberate taunting.
• Fear for safety / feeling uneasy / feeling threatened.
• Intimidation.
• Potential to create lasting impacts such as PTSD or depression.
• Changing of routines such as moving job, not using public transport or any other form of behaviour change.
• Low self-esteem / sense of helplessness.
• Self-isolation.
• Low level and ongoing anxiety.

Should the offence be restricted to public places?

42. Baroness Kennedy’s report recommended that the offence should be committed where the behaviour is ‘public’. However, the Scottish Government noted that the distinction as to what might be a ‘private’ or ‘public’ space is blurred and recommended that the offence of misogynistic harassment should be capable of being committed in all places, with no distinction between what might be described as public or private spaces.

Q3: Do you agree that the offence of misogynistic harassment should be capable of being committed in all places?

43. As shown in the following table, around three in four respondents across all sub-groups agreed that the offence should be capable of being committed in all places. No organisations disagreed with this proposal.

44. A total of 132 respondents provided additional comments in support of their response to question 3.

Support for the view that misogynistic harassment can be committed in all places

45. A majority of respondents, across all sub-groups, commented that this type of offence can happen anywhere so there is a need for a law that will ensure that women are protected from misogynistic harassment in all private and public spaces; i.e. that misogynistic harassment should be an offence wherever it occurs. There were a few comments that misogynistic harassment can be more threatening in private spaces. An organisation in the ’other’ sub-group reflecting the views expressed by respondents, noted:

“The specification of all places also offers greater protections for workers who may experience such behaviour in their workplace or via a work colleague who is using a private device to commit the offence of misogynistic harassment of them. With the removal of the need to define whether the offence was committed in a public or private space, the worker who has suffered the harassment will be covered and the perpetrator can be prosecuted for the offence of misogynistic harassment.”

46. A minority of respondents, across all sub-groups, made specific reference to online places, and some noted that some of the worst misogynistic harassment can happen online or in private messages and emails. A small number of respondents also noted that the prevalence of misogynistic harassment online is increasing and becoming much more widespread.

47. A few respondents also outlined additional locations that need to be included in any new legislation. These included:

• Workplaces, some of which might be a mixture of public and private spaces.
• Public transport.
• Sporting environments.
• Treatment rooms / NHS services.

Disagreement with the view that misogynistic harassment can be committed in all places

48. Of the individuals who did not agree that misogynistic harassment should be capable of being committed in all places, a few commented that private homes should remain private, that people are entitled to freedom of speech in their own homes and individuals should not have to fear any repercussions over what they might say in their own home. While respondents had not been asked to provide their gender, it appears from the names of consultation respondents that more of these were male than female.

49. A small number of individuals also thought this offence breaches the Equality Act and Article 14 of the European Convention of Human Rights (ECHR).

Concerns

50. A minority of respondents outlined concerns with this proposal. Key was how this offence would be proved to have been committed, particularly in private spaces. Allied to this, there were some comments of the difficulties in evidencing the harassment and / or how challenging it would be to police and enforce this offence. Once again, there were a small number of references on the need for clarity as to how this offence will be set out to apply to all public and private spaces, or how this offence would interact with other offences such as domestic abuse, sexual abuse or rape. As noted by an equalities organisation:

“We question whether the offence should be extended to both public and private spaces as considered in the consultation questions. It is unclear to us that there exists a gap in domestic abuse and sexual crime laws in relation to misogynistic harassment in the home, and we do not believe that there should be any encouragement to label certain behaviours misogynistic harassment when they are more rightly covered by domestic abuse legislation.”

51. A small number of individuals noted concerns that this could lead to people being prosecuted for a private conversation that is overheard or that people are entitled to have “horrible views” in their own private spaces.

Penalties – section 1(6)

52. The consultation paper commented that the maximum recommended penalty for the proposed offence of public misogynistic harassment should be 7 years imprisonment on conviction of the indictment.

Q4: Do you have any views on the proposed maximum penalty of 7 years imprisonment for the offence of misogynistic harassment?

53. A total of 143 respondents, across all sub-groups, answered this question. When reading the following paragraphs it needs to be borne in mind that the consultation paper did not fully represent the views expressed in Baroness Kennedy’s report. This was acknowledged by a small number of organisations, mostly in the equalities sector, which commented that the report did not set out a proposed maximum penalty for the specific offence of public misogynistic harassment; rather the report recommended that misogynistic harassment should be a summary offence which would generally result in a fine and with a maximum of a 12 month custodial sentence. Baroness Kennedy’s report noted:

“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.”

Agreement with a penalty of 7 years

54. A minority of respondents simply noted their agreement with a maximum penalty of 7 years imprisonment for the offence of misogynistic harassment. Comments included that this seemed fair, that the crime can cause high levels of distress, that it sends a clear message that misogynistic harassment will not be tolerated, and so on. A few respondents felt that 7 years was too short a period for serious offences or that 7 years might not be long enough for repeat or extreme offenders. A small number of organisations thought this would be in line with the offence of racially aggravated harassment at section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995.

55. While generally being supportive of this penalty, a few respondents, across most sub-groups, suggested there needs to be variance in the possible sentence and that any sentence given should correspond to the severity of the harassment. One individual noted the need for a clearly defined scale of offences.

56. A benefit to the imposition of a sentence was also identified – mostly by individuals – in that this would act as a deterrent in that it would force men to give greater consideration to their behaviour.

57. A minority of respondents felt that a penalty of 7 years is too excessive; some of these respondents noted that any penalty imposed needs to be in line with other comparable crimes. For example, a women’s organisation commented on the need for consistent and robust sentencing for all misogynistic offences, but that 7 years would be too punitive; and it would be preferable for any penalties to be in line with those imposed under Hate Crime legislation. An organisation in the justice / legal sector felt 7 years was too high without a clear rationale for this and that this type of offence has previously been dealt with under Common Law which does not have a maximum sentence. A few individuals queried how this penalty compared with other crimes such as rape.

58. A minority of respondents, across all sub-groups referred to the use of alternative approaches, either to sit alongside any penalty or to be used instead of a penalty. These alternatives included reform programmes, restorative justice and retraining; the example of offering speeding drivers a speeding awareness course that aims to change behaviour was provided. It was felt the main aim should be rehabilitation and reformation rather than a prison sentence, particularly as it was felt by some that the former would be more likely to change behaviour, while the latter option might not prevent future misogynistic harassment.

59. There were also some suggestions for public education campaigns and the need for attitudes and behaviour to be dealt with at an early age via schools and education. A small number of respondents also provided the example of France where fixed penalty notices are issued. Another benefit of these is that they are easier to administer and perceived to be a more appropriate sanction to apply. For some of these respondents prison was preferred as a last resort, particularly given the lack of available prison spaces and the cost of keeping someone in jail.

60. As at some previous questions, some respondents reiterated the need for guidance for sentencing and what variations in sentencing could be applied.

61. Overall, some respondents expressed the need for a fair balance between punishment and education, and a system that offers appropriate restorative practices that enable real change to be introduced.

Defences – section 2

62. The consultation paper outlined that as with the existing offences concerning stirring up hatred the SG has allowed for a defence to the offence of misogynistic harassment that the accused’s actions were, in the particular circumstances, reasonable. A ‘reasonableness’ defence is provided for other offences which potentially cover many different kinds of behaviour, such as threatening or abusive behaviour, stalking and abuse of a partner or ex-partner, where it is not possible to exhaustively list all the different ways that the offence might be capable of being committed. The consultation paper went on to note that the draft offence provides that there is an evidential burden placed on the accused to provide sufficient evidence to the court to raise an issue as to whether the defence is established.

Q5: Do you agree with the inclusion of a reasonableness defence to the offence of misogynistic harassment?

63. As shown in the following table, almost half of respondents across all sub-groups agreed with the inclusion of a reasonableness defence to the offence of misogynistic harassment, compared to around one in four who disagreed.

64. A total of 119 respondents then provided commentary in support of their initial response. Some of these commented that misogynistic harassment is not reasonable in any circumstances or that there can be no form of defence for misogynistic harassment.

Support for a ‘reasonableness’ defence

65. A key theme emerging in response to this question, across all sub-groups, was that everyone should have the right to defend their actions and this defence allows for justice to be seen to be done. A small minority of respondents – mostly organisations – also noted their agreement with Baroness Kennedy’s report and its proposition that misogyny is widely tolerated and highly normalised, including within the criminal justice sector. As such, it was felt that it is important to ensure that training and guidance for criminal justice agencies is provided alongside any legislation, to avoid a situation where a ‘reasonableness’ defence can be used successfully because misogynistic views are so widely held. Most of these respondents referred in general to staff within the criminal justice sector, although a small number referred to specific types of staff such as those working within the police force or those working in the criminal courts.

66. A few respondents – mostly organisations – felt that this defence would provide a safeguard for ensuring the legislation is not misused. As one equalities organisation commented, the defence of reasonableness will protect freedom of expression and provide a safeguard so that non-misogynistic harassment will not be caught up in the legislation. An organisation in the justice / legal sector felt this defence is in line with the approach taken for other similar statutory offences.

67. A small minority of respondents outlined concerns over how to determine what is ‘reasonable’ given that it could be seen as a relative term. Allied to this, a few respondents felt this could be difficult to prove.

Disagreement with a ‘reasonableness’ defence

68. Of those who disagreed with this defence, a few felt this would offer a loophole or ‘get out of jail free’ card, and that this defence would undermine any new legislation that is introduced. There were also a few comments that the legal system is based on the premise of ‘innocent until proven guilty’ and that this defence flies in the face of this premise.

69. Once again, there were some respondents who disagreed with this proposed legislation who held the view that this is contrary to ECHR and the Human Rights Act.

Additional comments

Q6: Do you have any other comments on the offence of misogynistic harassment?

70. A total of 105 respondents provided comments in response to this question, many of which echoed issues and points made at earlier questions. Key points made by respondents and which echoed earlier points raised included:

• Reference to personal experience of misogynistic harassment.
• This would help as a deterrent to misogynistic harassment.
• This would send a strong message that abusive behaviour towards women is unacceptable.
• Support for the proposed legislation and general comments on the need to deal with misogynistic harassment.
• The need for education and public information campaigns to sit alongside any new legislation, although a small number of respondents felt that education is more important than new legislation.
• The need to offer restorative justice to counteract misogynistic harassment and bring about a change in attitudes.
• The need for additional resources to enable implementation of new legislation.
• The need for training and robust guidance for all individuals involved in the criminal justice system; these include police, the criminal courts and jurors.
• Disagreement with the proposed legislation.
• The view that this is covered by existing legislation; respondents cited equality legislation, sexual discrimination legislation and domestic abuse legislation.
• The need for an equivalent offence of harassment whereby the victim was a man or boy.
• The need for the law to be gender-neutral and equal for all.
• The need for clear definitions and clarity so that any new legislation is comprehensive and understood by all involved in the criminal justice system.

71. Small numbers of respondents raised new or different issues. These included the need for mandatory collection and analysis of data to monitor and measure the legislation.

72. There were a very small number of concerns that the proposed legislation does not take account of the impact of intersecting forms of harassment experienced by marginalised women. For example, an equalities organisation queried how new offences related to misogyny will work for women experiencing misogyny alongside other forms of prejudice such as racism or homophobia and how the proposed legislation would work alongside the Hate Crime and Public Order (Scotland) Act 2021.

73. A small number of equalities organisations noted a concern that some perpetrators may claim they did not commit the offence because they did not perceive the victim to be a woman or girl.