Reforming the criminal law to address misogyny: consultation responses

An Offence of Misogynistic Behaviour

Key Findings

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

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

Key themes which emerged across these questions included:

• A 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.
• Suggestions for education, public awareness campaigns and restorative justice to be offered alongside any new offence.
• Suggestions for training and guidance to be provided for individuals within the criminal justice sector.
• Agreement with the inclusion of reasonableness and freedom of expression defences as they 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.
• Suggestions that freedom of expression needed 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 a perception from some that any new legislation introduced should be gender-neutral and / or there should be an equivalent offence of behaviour whereby the victim is a man or boy.
• The view that there is no need for new legislation as these offences are covered by existing 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 could be difficult to prove.
• There was a perception from some respondents that misogynistic behaviour can be worse in private places than in public.
• Views that 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 the concept of freedom of speech.

74. The consultation paper explained that the offence of misogynistic behaviour is intended to criminalise misogynistic behaviour that is not directed at a particular person or group of people and can be seen as a ‘public order’ offence concerned specifically with misogynistic behaviour. The structure of this offence is similar to the existing offence of threatening or abusive behaviour at section 38 of the Criminal Justice and Licensing (Scotland) Act 2010. The paper went on to explain that there are four requirements for the offence to be committed. The first is that the accused must behave in a manner that is sexual or abusive. The second requirement is that the behaviour must either be motivated by contempt for, or malice and ill-will towards women and girls, or else that it is of a character such that a reasonable person would consider it to be contemptuous of women and girls. The third requirement is that the behaviour would be likely to cause a reasonable woman or girl to suffer fear, alarm, degradation, humiliation or distress. The fourth requirement is that the person either intends by their behaviour to cause one of the listed effects to a woman or girl, or that they are reckless as to whether their behaviour has that effect.

Support for creation of the offence of misogynistic behaviour

Q7: Do you support the proposal to create an offence of misogynistic behaviour which does not require that the behaviour is directed at a specific victim?

75. As the following table demonstrates, over half of respondents supported the proposal to create an offence of misogynistic behaviour which does not require that the behaviour is directed at a specific victim. This compares to around one in five who did not support the proposal. There was no opposition from organisations, although 48 individuals did not support the proposal.

76. A total of 115 respondents, across all sub-groups, provided commentary in support of their initial response to this question. To a large extent, many of the comments made about the offence of misogynistic behaviour reflected comments in the previous part of this report about the offence of misogynistic harassment.

Support for the offence of misogynistic behaviour

77. A minority of respondents, across all sub-groups, noted the need to recognise the culture of misogynistic behaviour and the damage it can cause to women and girls. This included causing fear, distress and alarm, even if the behaviour is not directed at a specific person. As such, it is perhaps not surprising that there was a significant level of support for the creation of this offence. Once again, it was felt that this would help to bring about a change in attitudes and culture and make more people realise how unacceptable misogynistic behaviour is. While many respondents talked in general terms, there were a few specific references to online misogynistic behaviour.

78. Other points raised by respondents which were also cited in relation to the offence for misogynistic harassment included a reference to the need for education, public awareness campaigns, training and guidance. These non-legislative measures would sit alongside and complement the legislation.

Opposition to the offence of misogynistic behaviour

79. Of those who disagreed with this proposal, some felt that any new legislation that is introduced should be gender-neutral and aimed at all people, regardless of their gender. These respondents felt the new legislation as proposed is discriminatory against men.

80. A small number of respondents held the view that the proposed legislation is against the Equality Act, that it is unlawful under Article 8 of the Human Rights Act 1998 which refers to Respect for Private and Family Life or that it is unlawful under Article 14 of the ECHR. One organisation in the ‘other’ sub-group commented:

“We would, however, recommend that the Scottish Government take note of the UK Government response to recommendation 8 of the Law Commission's review of hate crime legislation published in April, particularly around the concerns over other VAWG (Violence against Woman and Girls) crimes not identified as criminally having misogynistic elements being socially perceived as ‘less harmful’ because of misogynistic behaviour not having been proven.”

81. A small number of respondents also felt this would be an infringement on freedom of speech and freedom of thought.

Q8: 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?

82. A total of 87 respondents commented on this question.

83. A key theme, from a minority of respondents across all sub-groups, was agreement with the list of effects that were provided in the consultation paper. Comments included that the list was comprehensive and appropriate, that it provides a wider scope of effects that represent the true nature of harm endured by women and girls, and that it is in keeping with the other offence of misogynistic harassment. Again, there were also references to the damaging impact that misogynistic behaviour can have on women and girls.

84. Of those who disagreed with the list of effects on the victim, a key issue was that these effects are subjective and difficult to prove. Additionally, it was suggested that women and girls will have different trigger points so that what one perceives to be misogynistic behaviour that causes distress will be disregarded by another. There were a few concerns that this could led to vexatious claims that are not provable.

85. As at the previous question on misogynistic harassment, a minority of respondents outlined additional effects they felt should be included in any legislation. These included:

• Feeling unsafe.
• Anxiety.
• Intimidation.
• Embarrassment.
• Confusion.
• Shame.
• The impact of long-term effects such as PTSD.
• The level of anger felt by the victim.
• The perception of being silenced.
• Leading to changed behaviour patterns.

86. A very small number of organisations – mostly in the equalities sub-group – commented that the ‘reasonable person test’ would need to be different as there is no specific victim. They commented:

“We note that since there is no specific victim in the case of the offence of Misogynistic Behaviour, that the reasonable person test is different – whether this behaviour would cause the listed effects in a reasonable person, rather than whether a reasonable person believes these actions could cause the listed effects in a specific victim. This may change the nature of the actions that are prosecuted under the different parts of this legislation. For example, since the harassment offence considers the characteristics of the specific victim, conduct which would not cause fear, alarm, degradation, humiliation or distress to a hypothetical reasonable person might be deemed to cause these effects in that victim. This would change the conduct that is prosecuted under these different parts of the legislation.”

87. For this reason, another organisation in the equalities sub-group noted that this needs to be considered in the development of any guidance on this proposed offence.

Should the offence be restricted to public conduct?

88. The consultation paper noted that Baroness Kennedy’s report recommended that the offence should be committed where the behaviour is public. The expectation is that in the majority of cases, behaviour amounting to an offence under this section would be committed in a public place. However, it is possible that this kind of behaviour could occur in private places in circumstances where a criminal law response might be appropriate. An example would be misogynistic abuse occurring at a large party in someone’s home. In light of this, the proposal is that the offence of misogynistic behaviour should be capable of being committed in both private and public places.

Q9: Do you agree that the offence of misogynistic behaviour should be capable of being committed in both private and public places?

89. As the following table demonstrates, over half of those who responded agreed with the creation of this offence, compared to less than one in five who disagreed. All organisations who provided a definitive response agreed with the creation of this offence, although there was some opposition from individuals.

90. A total of 89 respondents across all sub-groups, answered this question.

Support for the offence to be committed in public and private places

91. A majority of those who supported this proposal noted that misogynistic behaviour can happen anywhere and that new legislation should cover all private and public areas. Indeed, some of these respondents noted that misogynistic behaviour in private places can be more intimidating to women and girls, so it should be criminalised in all settings. Some of these respondents referred to specific places including workplaces, residential care, restaurants and so on.

92. A few respondents made specific reference to online misogynistic behaviour and the need to include this in any legislation, particularly as there has been growth in online misogynistic behaviour in recent years.

93. Once again, some respondents referred to the damaging impact of misogynistic behaviour.

94. As at previous questions, there were some concerns over the policing of private spaces or that this behaviour could be difficult to prove as well as being difficult to police.

Disagreement with the proposal

95. Of those who disagreed with this, there were some comments that private conversations should not be taken as misogynistic behaviour or that this is a ‘draconian’ intrusion into peoples’ private lives.

Penalties – section 1(6)

96. The consultation paper noted that the maximum penalty for its proposed offence of public misogynistic harassment should be 7 years imprisonment on conviction on indictment.

Q10: Do you have any views on the proposed maximum penalty of 7 years imprisonment for the offence of misogynistic behaviour?

97. 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 Baroness Kennedy’s report did not set out a proposed maximum penalty for the specific offence of public misogynistic behaviour but recommended that misogynistic behaviour should be a summary offence which would generally result in a fine and with a maximum of a 12 month custodial sentence.

Support for the proposed maximum penalty

98. As with the previous question on misogynistic harassment, those who agreed with the maximum penalty of 7 years imprisonment expressed positive views on this being an appropriate or fair penalty. Some respondents – mainly individuals – felt this would act as a deterrent and sends a clear message about the unacceptable nature of this behaviour.

99. That said, a small number of respondents felt that this is a lesser offence than harassment as there is no specific victim, so the penalty should be lower to reflect that. Again, there were some comments that any sentence imposed should reflect the severity and impact of the crime.

100. In terms of the number of years for the penalty, some polarised views were expressed. A small minority of respondents felt that a maximum penalty of 7 years is not long enough, while others commented that this is too excessive and harsh.

101. There were also calls for alternative approaches including mandatory training, restorative justice and educational provision to combat attitudes and bring about cultural change. The use of fixed penalty fines as per driving offences was also suggested, with one individual commenting that this works well in France. Prison was felt to be a last resort by a small number of respondents.

102. If this legislation is to be introduced, a few respondents – mainly organisations – noted the need for guidance for sentencing and variations in sentencing, or strict definitions of penalties.

Opposition to the proposed maximum penalty

103. For those who were opposed to this penalty, once again, there were perceptions that this would be out of kilter with other International and UK legislation, against the Equality Act and Article 14 of ECHR. There were also a small number of comments that this would create an infringement of freedom of speech.

104. There were a significant number of references to the need for any penalty to be similar to, and consistent with, other offences. For example, a women’s organisation commented that this penalty should be in line with Hate Crime legislation, while an individual felt that this penalty is disproportionate when compared to domestic abuse offences.

Defences – section 2

105. The consultation paper explained that as with the existing offences concerning stirring up hatred and the proposed offence of stirring up hatred against women, a defence is provided to the offence of misogynistic behaviour that the accused’s actions were, in the particular circumstances, reasonable. This provision ensures that where someone behaves in an objectively reasonable way, but their behaviour nonetheless technically amounts to the commission of the offence of misogynistic behaviour, they are not criminalised by the offence.

Q11: Do you agree with the inclusion of a reasonableness defence to the offence of misogynistic behaviour?

106. As the following table demonstrates, of those who responded, just under half of respondents agreed with the inclusion of a reasonableness defence to the offence of misogynistic behaviour; this compared to around a quarter who disagreed.

107. A total of 90 respondents, across all sub-groups, provided commentary in support of their initial response to this question.

Support for a defence of reasonableness

108. A key theme emerging at this question was that the inclusion of a reasonableness defence allows for justice to be done and provides fairness. That said, a few respondents struggled to understand what might be considered as a reasonable defence for misogynistic harassment or that this defence may offer limited scope in practice.

109. A minority of respondents – mainly individuals – also noted that misogynistic behaviour is not reasonable under any circumstances.

110. A small number of organisations in the third sector, justice / legal and women’s organisation sectors felt this was in line with the approach taken for other statutory offences that are similar and seeking to address violence against women and girls, such as the Domestic Abuse (Scotland) Act 2018.

111. A small number of respondents also felt it is good for the onus to be on the accused to prove the behaviour was reasonable. Conversely, a small number of respondents felt this is not based on the premise of ‘innocent until proven guilty’, and one individual felt that the Human Rights Act 1998 provides for all to have the right to a fair trial and a presumption of innocent until proven guilty. Furthermore, there were a few queries as to how a court would determine what is reasonable behaviour and that reasonableness is a relative term and can be open to interpretation.

112. As at previous questions a small minority of individuals disagreed with this legislation on the grounds that it is subjective, or perceived that it is illegal under ECHR and the Equality Act 2010, although little additional information was provided by these respondents.

Freedom of expression

113. The consultation paper noted that in keeping with the proposed offence of ‘stirring up hatred against women and girls’ which does not require behaviour which is targeted at a specific identifiable victim, provision has been made protecting freedom of expression reflecting the nature of the offence as not requiring to be targeted at a specific identifiable victim.

Q12: Do you agree with the inclusion of a freedom of expression provision setting out, for the avoidance of doubt, that certain behaviour does not constitute an offence of misogynistic behaviour?

114. As the following table demonstrates, a clear majority of respondents supported the inclusion of a freedom of expression provision. Around three times the number of respondents supported the inclusion of a provision setting out, for the avoidance of doubt, that certain behaviour does not constitute an offence of misogynistic behaviour as compared to those who opposed its inclusion. Of those who gave a ‘yes’ or ‘no’ response, almost all organisations and a significant majority of individuals agreed with the inclusion of a freedom of expression provision.

115. A total of 106 respondents then provided commentary in support of their initial response to this question.

Support for freedom of expression

116. A minority of those who responded to this question supported the inclusion of a ‘freedom of expression’ provision; for example, because this would allow reasonable discussion and debate around issues affecting women or that in a fair society it should be reasonable to discuss issues relating to women and girls without fear of censure. As one individual noted, having opinions on issues that affect women and girls does not necessarily constitute harassment or abuse. An equalities organisation commented that the purpose of the offence should not be to interfere with a person’s ability to freely debate issues concerning or relating to women and girls.

117. A minority of respondents, across all sub-groups who were in agreement with the inclusion of a freedom of expression provision, noted some qualifications for their support. In the main, they pointed to the need for clarity over what constitutes ‘abusive’ and that free speech protections need to be expanded in law.

118. A woman’s organisation commented that the Freedom of Expression provision will need to be tightly drafted to ensure genuine discussion and debate is covered by this; another that any provisions need to strike a careful balance between the aims of the legislation and the need to preserve freedom of speech. An equalities organisation commented that there is a need to consider the way in which views are expressed and the language and tone used, and only take action if there is evidence that the behaviour meets the requirements to be considered an offence.

119. The performing arts were singled out by a small minority of organisations across most sub-groups, in that they felt freedom of expression needs to be considered in relation to artistic expression. An equalities organisation noted concern that the broadness of the offence could result in artists and entertainers falling foul of the legislation; and a women’s organisation was keen to ensure the offence is robust enough that it could not be used to constrain areas such as artistic or sexual expression.

120. Overall, there was a perception that there should be freedom to discuss issues and criticisms of women’s issues and that freedom of expression is an importance tenet of Scottish society and needs to be protected. As commented on by an equalities organisation:

“Freedom of expression, protected by Article 10 ECHR, extends to ideas that may shock, disturb or offend the deeply-held beliefs of others.”

Disagreement with freedom of expression

121. Of the small minority who disagreed with the inclusion of a freedom of expression provision, the key comment was that this could be used as an excuse or that it would offer a get out clause for unacceptable behaviour.

Q13: Do you have any other comments on the offence of misogynistic behaviour?

122. Finally, in this chapter of the consultation, respondents were invited to provide any other comments they had on the offence of misogynistic behaviour and a total of 68 respondents did so.

123. To a large extent, respondents tended to reiterate points here that had been made to previous questions relating to misogynistic behaviour. While a minority noted their support for the proposed legislation and highlighted the damage that can be caused by misogynistic behaviour, small numbers also noted the need for clarity in some of the terms being used and again focused on the need to balance freedom of expression with the introduction of new legislation.

124. A small number of organisations noted the need for attitudinal change within the police force as existing or perceived police attitudes may currently present a barrier to reporting misogynistic crimes.

125. There were a small number of references to the language used, with requests for the term ‘prejudice’ to be used as it was felt this more accurately describes the misogyny that motivates behaviour that causes harm to women and girls. An equalities organisation noted their concern over the wording of ‘motivated (wholly or partly) by contempt, or malice and ill-will towards women and girls’ and felt this could be better worded by reference to whether ‘prejudice and / or malice and / or contempt’ as this more accurately describes misogynistic harassment and behaviour that causes harm to women and girls.

126. Other issues again raised by respondents included:

• Highlighting the need for non-legislative approaches such as programmes of education, restorative justice, public information campaigns.
• The need for increased funding and resources for organisations involved in the criminal justice system to allow them to implement the legislation.
• Any legislation should be gender-neutral and apply equally to men and women; or alternatively to have an equivalent law of harassment against men and boys.
• Calls for education programmes to bring about behavioural change, or for public awareness campaigns and guidance.
• A need for additional resourcing for the criminal justice system to be able to implement and enforce this legislation if it is introduced.
• A perception that this would be unlawful under Article 8 of the Human Rights Act 1998, the Equality Act and Article 14 of ECHR, as well as being discriminatory and sexist.
• A view that there is no need for this legislation as existing legislation covers these crimes. This should be the same as the Hate Crime and Public Order (Scotland) Act 2021 or the racially aggravated harassment at section 50 of the Criminal Law (Consolidation) (Scotland) Act 2021.