Reforming the criminal law to address misogyny: consultation responses

An offence of Issuing Threats of, or Invoking, Rape or Sexual Assault or Disfigurement of Women and Girls Online and Offline

Key Findings

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

• Over three in four respondents supported the proposals to create a specific offence of ‘threatening or abusive communications to women and girls which reference rape, sexual assault or disfigurement’ (Q14), and 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.
• The impact of this type of behaviour on the lives of women and girls.
• Views that any changes to legislation should be gender-neutral and offer equal protection to all people.
• A perception that legislation already exists which covers these offences.
• Increased resources would be needed if new legislation is introduced.
• There were some concerns over how this legislation would be enforced. Alongside this, there were calls for clear guidance for all staff in the criminal justice system.
• 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.

127. The consultation paper noted that Baroness Kennedy’s report recommended making it a specific offence to issue threats of, or invoke, rape or sexual assault or disfigurement to women and girls. It also noted that while the majority of this conduct is likely to occur online, the offence should be capable of being committed both online and offline.

Q14: Do you support the proposal to create a specific offence of ‘threatening or abusive communications to women and girls which reference rape, sexual assault or disfigurement’?

128. As the following table demonstrates, around three in four respondents agreed with the proposal to create a specific offence of ‘threatening or abusive communications to women and girls which reference rape, sexual assault or disfigurement’. This compares to only around one in ten who disagreed with this proposal. Of those who provided a ‘yes’ or ‘no’ response, almost all organisations agreed with the creation of this offence. Most disagreement came from individual respondents, although one organisation in the justice / legal sub-group did not agree.

129. A total of 112 respondents provided commentary in support of their initial response to this question.

130. A minority of respondents across all sub-groups noted that they believed this legislation is long overdue and vital to protect women from the impact of misogynistic communications, with some comment that this type of behaviour has been increasing in recent years. It was felt creation of this specific offence would help to provide greater levels of protection for women and girls. An equalities organisation commented that this type of behaviour can be difficult to challenge but has a significant impact.

131. The impact of this type of behaviour was noted by a minority of respondents, with references to how this type of threat can limit women’s’ lives by causing distress or making women and girls feel unsafe and threatened. There was also some reference to the psychological impacts of this type of behaviour.

132. A minority of respondents, again across all sub-groups, referred to different types of communication, with offline being referred to by a number of these respondents. The workplace and sporting areas were also mentioned by small numbers of respondents.

133. A small number of concerns were noted by respondents; for example, one individual noted that the definition was too broad and does not balance equally with the concept of freedom of speech. A women’s organisation noted that some individuals who participate in this type of behaviour will be unknown to the individual at whom it is targeted and wondered how the law would tackle this anonymity.

When is the offence committed?

134. The consultation paper then noted that the draft provision gives effect to the Working Group’s recommendation by criminalising the conveying of a message which is threatening, or abusive, or both and makes reference to rape, sexual assault, disfigurement, violence likely to result in disfigurement or a combination of these things.

Q15: Do you agree that the offence should be committed where a message is threatening or abusive, or both, and makes reference to rape, sexual assault or disfigurement?

135. As the following table demonstrates, of those who responded, around three in four respondents 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. Less than one in ten respondents disagreed with this.

136. A total of 81 respondents provided commentary in support of their initial response to this question.

137. A number of respondents reiterated comments made to the previous question; and across all responses, the same themes emerged.

138. A minority of respondents who agreed with the proposed offence noted this offence is necessary to tackle specific types of behaviour, that this behaviour is unacceptable and needs to be addressed. A similar number of respondents also reiterated views on the negative impact of this type of behaviour, including causing fear and alarm, distress and psychological impacts.

139. A minority of mainly organisations specified particular elements of the proposed offence that they thought were positive. These included:

• Offering a helpful definition that avoids a perpetrator avoiding liability through the use of coded language.
• Making the actions specific enough to hold someone accountable.
• The approach makes clear that discussions referencing rape, sexual assault and disfigurement that are not threatening or abusive are exempted from this legislation and will thus not pose a threat to legitimate communications.
• Agreement with the way the offence has been framed in that there is no need to prove the intention of the perpetrator.
• Change from using the term ‘invoking’ to ‘makes reference to’ is a positive change.

140. There were a small number of concerns that this could be difficult to prove and enforce. One organisation in the justice / legal sector felt the draft provision is “very clumsy” and that it is not clear precisely what conduct is intended to be covered.

Comments on the approach taken

141. The consultation paper then noted the kinds of circumstances in which such abusive messages referencing rape, sexual assault and disfigurement of women and girls are sent are not limited to circumstances in which the message is sent directly to the victim. For example, a message can be posted on a website in circumstances where the person to whom the message relates is likely to see it or be made aware of its existence.

142. The consultation paper went on to explain that the offence does not define the terms ‘rape’, ’sexual assault’ and ‘disfigurement’, as it is considered that courts will be able to determine whether an act that is referred to is one or rape of sexual assault. In terms of ‘disfigurement’ specifically, it is provided that the offence is committed both where the message refers directly to disfigurement and where it refers to violence likely to result in disfigurement.

Q16: Do you have any comments on the approach taken in the draft offence to the harms of rape, sexual assault and disfigurement?

143. A total of 55 respondents, across all sub-groups, answered this question, although these comments tended to reiterate issues raised earlier.

144. A minority of respondents noted their approval of the approach taken, with comments such as ‘this is well thought out’, and ‘the broader approach to framing the offence will allow for the legislation to be future-proofed’. It was also felt that the suggested approach is clear and conveys the purpose of the legislation well. Two equalities organisations commented that it is positive the approach taken recognises that messages may not be directly conveyed to a victim but posted publicly.

How the offence can be committed – section 1(1)-1(3)

Q17: Do you have any comments on the approach taken in the draft offence about the two different ways in which the offence can be committed?

145. A total of 57 respondents answered this question. The key theme was agreement with the approach, or different aspects of the approach as suggested, although many of these respondents added little else by way of detail. An equalities organisation commented:

“The approach seems to be an inclusive way of ensuring that the offence is enforced, and that the accused cannot use a defence of not having believed the victim to be a woman or girl if the recipient is, in fact, a woman or girl.”

146. A few respondents made suggestions for changes to wording. These included:

• Using the word ’incite’ rather than ‘invoke’.
• Two equalities organisations suggested alternative wording for the offence introducing a requirement for the offender to be motivated by prejudice, contempt or malice and ill-will towards women or girls and suggested that would remove the requirement for the victim to prove they were a woman or girl.

147. As at previous questions, a minority referenced the need for the law to be gender-neutral, that this proposed offence may already be covered by existing legislation, that this offence is discriminatory against men or that this offence is an infringement of freedom of speech.

Defences – sections 2 and 3

148. The consultation paper noted that two defences are provided to the offence. The first is a defence of ’reasonableness’ and the second is a defence of ‘improbability’.

Q18: Do you have any comments on the proposed defences to the offence?

149. A total of 69 respondents answered this question; a minority of these noted that there should not be a defence for the offence as this behaviour is never acceptable under any circumstances. Conversely, a similar number of respondents felt there is a need to allow defences so that the law can cover all eventualities and offer reasonable protections of free expression and private communication.

150. A minority of respondents noted their support for the defence of ‘reasonableness’ but not ‘improbability’. This was primarily as the defence of reasonableness allows the forwarding of a threatening message in order to alert someone that a third party has made threats against them.

151. The defence of ‘improbability’ was seen to perpetuate the problem rather than solve it. Respondents felt the behaviour is still wrong and conveying messages to third parties is just as offensive as conveying the message directly to the person. A few respondents referred to recent instances within the Metropolitan police force as reasons as to why this defence should not be allowed. As noted by a women’s organisation:

“The most recent exposure of text communications between serving officers in the Met Police serves as an example of where we are concerned such a defence could be exploited and we are keen to ensure, therefore, that any proposed defences are carefully examined in light of such examples to ensure they do not eviscerate the protections of this proposed legislation.”

152. As at previous questions, there were also references to the need for clarity. In particular, if the defence of improbability is to be used, it would need to be tightly defined. There were also some concerns that these defences could create loopholes that could be abused by perpetrators of these crimes.

Q19: Do you have any comments on the proposed maximum penalty of 5 years imprisonment for the offence?

153. A total of 93 respondents answered this question, with a minority noting their support for this but offering little additional detail. Small numbers noted that this would help to act as a deterrent in that it reflects the severity of the impact and consequences of the crime.

154. While a few individuals felt the maximum penalty of 5 years was too excessive, a minority felt this should be higher. A few individuals suggested a maximum penalty of 7 years and a higher number suggested this penalty should be in line with the penalties for misogynistic harassment and behaviour. One or two of these respondents queried why there was no consistency across the different offences. Conversely, a small number of respondents felt this offence should carry a higher sentence than misogynistic harassment or behaviour on the grounds that rape / sexual assault or disfigurement threats are worse than misogynistic harassment or behaviour.

155. A minority of individuals, across most sub-groups, felt this offence should be aligned with existing and similar offences, and a small number of respondents referred to the Hate Crime and Public Order (Scotland) Act 2021. That said, a small number of respondents in the equalities and justice / legal sub-groups commented that this proposed penalty is in line with other offences such as the maximum penalty for threatening or abusive behaviour on conviction on the indictment. A women’s organisation suggested that anyone committing this offence should automatically be added to the sex offenders register.

156. There were also references from a few individuals that this proposed penalty is unrealistic, as they perceived there to be low sentencing given to some individuals who commit sexual offences such as rape.

Q20: Do you have any other comments on the proposed offence of threatening or abusive communications to women and girls that reference rape, sexual assault or disfigurement?

157. Finally, in this chapter of the consultation, respondents were given the opportunity to provide any other comments on this proposed offence; and 54 chose to do so.

158. In the main, respondents echoed their responses to earlier questions. A minority noted their support for this proposed offence but provided little else by way of detail. A few equalities organisations and individuals noted that there is a need for this offence to be all-inclusive and include transgender, individuals with learning disabilities and non-binary people who are perceived to be at a high risk of being victims of these crimes.

159. A small number of respondents wanted reassurances that this crime will be taken seriously by the criminal justice system, and that training, guidance and additional resourcing will be provided so that this offence can be properly implemented. A small number of organisations also pointed out the need for data collection so as to monitor the impact and effectiveness of the proposed offence.

160. As at previous questions, a number of other key themes cited by respondents included:

• Any changes should be gender-neutral and this should be an offence regardless of gender, with perceptions that otherwise this would translate to unequal protection under the law which is seen as unfair and not legal.
• A view that this offence is already covered by existing legislation such as section 127 of the Communications Act, and legal safeguards against this behaviour already exist. There were references to the Telecoms Act, section 126 of the Communications Act and Hate Crime. An organisation in the justice / legal sub-group commented that any new offence must be shown to be necessary and proportionate and for which current law does not offer an effective solution but that the proposed offence does not meet this parameter. Conversely, an organisation in the equalities sub-group noted that this proposed offence is important as it covers a type of abusive communication that is not covered by existing legislation.
• Increased resources would be needed to implement the proposed offence.
• Concerns over how difficult this offence would be to enforce and the need for proactive enforcement.
• Perceptions that this falls foul of the Equality Act.
• Should be gender-neutral.
• Will need to be accompanied by clear supporting guidance.
• The importance of non-legislative approaches to sit alongside legislative approaches so as to help bring about attitudinal and behaviour change and discourage repeat offending.