Reforming the criminal law to address misogyny: consultation responses

A new Statutory Aggravation relating to misogyny

Key Findings

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

• Around two in three respondents supported the recommendation in Baroness Kennedy’s report that there should be a statutory sentencing aggravation concerning misogyny (Q21); around two in three agreed with the approach contained in the draft provision that an offence is aggravated in the two specified situations (Q22); and just over half 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.
• There is a need for non-legislative measures (e.g. education and training) to support a change in culture.

161. The Kennedy report recommended the creation of a new statutory aggravation relating to misogyny to enable a judge to take account of the misogynistic nature of the conduct when sentencing. It recommends that the aggravation should define misogyny as being ‘prejudice, malice or contempt towards women’.

Q21: Do you support the recommendation in Baroness Kennedy’s report that there should be a statutory aggravation concerning misogyny?

162. As shown in the following table, a majority – around two in three – agreed with the recommendation that there should be a statutory sentencing aggravation concerning misogyny. While respondents had not provided their gender, most of the those who disagreed comprised male respondents; no organisations disagreed.

163. A total of 99 respondents went on to make further comments at this question. A minority reiterated their agreement at the first part of the question, mainly without expanding, with the largest minority stating that this allowed for misogynistic motivation to be reflected in sentencing, reinforcing that misogyny was a motivating factor to more serious crimes such as rape, sexual violence, stalking and vandalism.

Support for the Recommendation

164. Among the smaller numbers of other comments in favour of the recommendation, a few respondents advocated a need for protection from misogyny in the same way as that given for other characteristics. In this regard, it was put forward that it would be unjust not to recognise a statutory aggravation in relation to misogyny, given the law recognises a statutory aggravation in relation to other protected characteristics such as race or ethnicity. Similar numbers said they supported the stance that misogynistic behaviour will not be tolerated, perceiving that the aggravation will attract a greater sentencing penalty. Smaller numbers added that the aggravation would give extra protection for women and girls.

165. Smaller numbers pinpointed a need for misogyny to be recognised as an offence in law; it was perceived that making this explicit would provide clarity and comprehensiveness when defining the crime and reduce gaps in the law protecting women.

166. A small number of women’s organisations commented positively about statutory aggravations not requiring corroboration, i.e. that a single source of evidence would be sufficient to establish this.

167. Further remarks in support of the recommendation, each made by very small numbers of respondents, consisted of the following:

• A statutory sentencing aggravation will enable the tracking of behaviour patterns to understand the growth and spread of misogyny, as well as its extent across offences.
• Positive comments about criminal offence provisions applying where the perpetrator perceives their victim to be a woman, irrespective of the victim’s gender; conversely a couple of comments advocated for the aggravation to be applied to women defined by biological sex only (i.e. excluding trans women) and argued that it will not otherwise help safeguard women.
• Comments stating support for the aggravation in the context of human rights and equalities issues.
• Agreement that sex or gender should not be added as a protected characteristic for the purposes of aggravated offences in Hate Crime legislation, i.e. that misogyny needs to be tackled separately to prejudice suffered by other marginalised groups.

Disagreement with the Recommendation

168. Comments expressing disagreement with the recommendation were almost all made by individuals; a small number reiterated their opposition to a misogyny law being introduced altogether. A minority (it appears from the names of consultation respondents that more of these respondents were male than female) claimed that the recommendation was sexist in that it discriminates or fails to protect men or people who are not women, or a perception that it is contrary to gender equality legislation or the Human Rights Act. Similar numbers advocated for similar protections for men, with suggestions for the creation of an offence of harassment against men and boys; or made comments regarding perceived dangers to men, most notably in the context of prevention of free speech. There were also a few suggestions to initiate a general offence of sexist harassment incorporating wider coverage to provide equal protection to men and other non-women. An equalities organisation suggested revising the recommendation to read 'concerning hatred on grounds of sex or gender’. However, a very small number wanted the aggravation to be applied as a sex-based rather than a gender-based law.

169. A few respondents advocated the use of existing laws instead and held the view that current legislation covers all the points of the proposed bill, without explaining further. There were also a small number of calls for sex or gender to be added as a characteristic to the Hate Crime Bill, or to take a gender-neutral approach in order to comply with equalities legislation.

170. Finally, a small number of respondents voiced concerns regarding the policing of the proposed aggravation, pointing out perceived current policing practices and a lack of clarity regarding the ‘burden of proof’ regarding offences.

The test for determining whether an offence is aggravated by misogyny – sections 1 (1)-1 (4)

171. The draft provision outlined that an offence is aggravated if the offender demonstrates contempt, or malice and ill will towards the victim.

Q22: Do you agree with the approach contained in the draft provision that an offence is aggravated in the following two situations; namely if:

• the offender demonstrates contempt, or malice and ill will towards the victim and that is based on the victim being or being presumed by the offender to be a woman or girl; or
• whether or not there is a specific victim of the offence, the offence is motivated wholly or partly by contempt, or malice and ill will towards women and girls.

172. As the following table shows, a majority – around six in ten – agreed that an offence is aggravated in the two specified situations. While respondents were not asked to state their gender, it appears from the names of consultation respondents that most of those who disagreed were male. Only one organisation disagreed.

173. A total of 81 respondents went on to make further comments.

General Comments in Support of the Approach

174. A minority from across the spectrum of respondents cited support in mainly general terms. They stated this was important, that it was badly needed and voiced approval that the approach was detailed and comprehensive. A few respondents concurred that misogynistic behaviour was an aggravating factor which should be regarded as leading to more serious levels of crime, with similar numbers welcoming the stance that misogyny will not be tolerated and that the approach would help to reduce misogynistic views. Similar numbers reiterated the abhorrent aspects of misogyny and its effects on women’s freedoms and working lives.

Comments about the Wording of the Two Situations

175. General approval of the two parameters was expressed by a few respondents; the definition was regarded as helpful and would help give extra protection for women. A similar number, comprised of equalities, justice / legal and women’s organisations, specifically welcomed the introduction of ‘contempt’. However, one justice / legal organisation did not believe that ‘contempt’ should be included in the aggravation, arguing that:

“It reduces the benchmark if all that is required is a demonstration of contempt. We do not believe that the Government has made a case for drafting an aggravation by misogyny differently from the existing statutory aggravations… The majority of aggravations will be established where the court holds that the things said, done or communicated demonstrate malice and ill will towards the victim, based on the victim being or presumed by the accused to be a woman.”

176. However, similar numbers of respondents (almost all of these being equalities or women’s organisations) preferred the use of ‘prejudice’, seeing it as a more accurate description of misogynistic views. According to an equalities organisation:

“It is welcome to see the inclusion of contempt in the proposed aggravation, but the HK Report made clear that prejudice is a key component of misogyny….Prejudice, furthermore, captures something else that the Report was addressing: the targeting of specific types of women (examples given: noisy, successful, or opinionated women; HK Report, p 57). Per the report, targeting specific kinds of women ultimately denies the humanity of women as a whole, and it is prejudice rather than malice, ill will or contempt that fuels the belief that these are not valid behaviours for women to engage in.” (Equalities Organisation)

177. A minority (according to respondent names, most of the individuals responding were male and equalities organisations) voiced criticisms of the use of ‘ill-will’ or ‘malice’. These descriptions were regarded as being the language of hate crime, not being an accurate description of men’s behaviour towards women and legally being hard to prove because of a lack of clarity. A women’s organisation stated:

“Our position is that ‘malice and ill will’ mirrors the current standard used for the hate crime aggravator and would not be effective in reflecting the critical elements identified in the working group’s definition of misogyny, that it – ‘upholds the primary status of men and a sense of male entitlement, while subordinating women and limiting their power and freedom.’ (page 28)” (Women’s Organisation)

178. Further arguments put forward against the specific use of ‘ill-will’ by single respondents included that any crime directed at women could fall into this classification despite there being no genuine ill-will, and that it criminalised rudeness or unpleasantness. There was also a single criticism of the use of ‘malice’ in that many offences against individuals could be motivated by malice irrespective of the victim’s characteristics (e.g. a man).

Comments Disagreeing with the Approach

179. A minority (around two in five comprising mostly individual respondents) disagreed with the approach, almost all of their remarks reiterating previously stated opposition to the creation of the offence in general and the statutory aggravation in particular. The main concerns were that the aggravation was sexist or went against gender equality, or that it created dangers for men or other non-women unless protections were added.

Other Comments

180. A small number of respondents raised hypothetical examples of potentially problematic cases, as follows:

• What if the offender views trans women as men? / concerns for trans women where the offender knows they are transgender and would argue that they thought the victim was male (2 respondents). Is the crime then covered by the hate crime bill but is not misogynistic?
• What if a man in question does not presume the person they are committing the offence against is a woman?
• What if the perpetrators of crimes choose to identify as women after the fact?
• Concerns over the correct framing of statutory aggravations for offences where there are intersectional protected characteristics involved.

Exception for offences which are intrinsically misogynistic – section 1(5) and schedule 1

181. The consultation paper noted that Baroness Kennedy’s report recommended that the aggravation should not be capable of being used (or ‘libelled’) in respect of offences which they consider are inherently misogynistic as they consider that the misogynistic aspect of such offending is already routinely taken into account when sentencing offenders convicted of these crimes. For this reason, they proposed that the aggravation should not be capable of being libelled for sexual offences and domestic abuse offences and for the new offences which the report recommends creating.

Q23: Do you agree 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?

182. As shown in the following table, a majority – just over half - agreed with the Working Group’s recommendation. Less than one in five respondents disagreed.

183. A total of 70 respondents went on to make further comments.

Support for the Recommendation

184. A minority reiterated their general agreement with the recommendation and agreed with the view that certain offences are inherently misogynistic. A number of points were put forward in support of the recommendation, each by very small numbers of organisations:

• It ensures that existing protections for women are not weakened by any of the proposed offences (prevents misuse, ensures perpetrators don’t manipulate the law for their own benefit, etc.).
• It helps to avoid the problems of double counting and artificiality (similar to, for example, ensuring that drug-trafficking offences are not aggravated by connection with serious organised crime, or the offence of abuse of a partner or ex-partner is not aggravated by domestic abuse).
• Stand-alone offences should take precedence if misogyny is obvious or inherent; e.g. it would be incoherent for sentencing to imply that, for example, some sexual assaults are misogynistic and others are not.

Queries and Reservations about the Recommendation

185. A minority from most respondent groups were sceptical about misogyny being always taken into account when sentencing an offender. There were requests for further detail and research on this matter. Furthermore, a justice / legal respondent commented that:

“..even with (inherently misogynistic) offences, there might be instances where the evidence supports clear misogynistic intent over and above the fundamental mens rea required for the core offence. There may well be merit in applying misogynistic aggravators in these cases to offences which additionally might be considered by some to be inherently misogynistic in any case. The situation does already exist whereby aggravators can be applied to like offences that seem by definition not to require the aggravator. These include a Bail aggravator being added to a Breach of Bail offence or a Domestic Abuse aggravator to an offence under the Domestic Abuse (Scotland) Act 2018. A statutory aggravation reflects an additional degree of aggravation caused by the motivation for committing the offence. The inclusion of an exemption list would be overly complex and could be perceived by victims as lessening the impact of the aggravation.”

186. A small number of individuals called for the provision to apply to all misogynistic crimes whether assumed inherently misogynistic or not and cited concerns about possible loopholes or too much leniency in sentencing if this was not done.

Other General Points

187. A minority of mainly individual respondents chose to reiterate more general objections to the proposals such as their perceived sexist nature amid calls for a general offence of sexist harassment, or to urge the use of provisions in existing laws instead; and a further minority (again mainly individual respondents) felt they did not understand the terminology of the question (in particular the use of ‘libelled’), or said they did not feel qualified to answer.

Views on the list of offences which cannot be libelled

188. The consultation paper noted that aside from sexual offences and domestic abuse offences, there are certain other offences which can reasonably be considered to be intrinsically misogynistic. In common with other statutory aggravations, it is not proposed that the aggravation should have retrospective effect. The legislation contains a power for the Scottish Ministers to amend the list of offences in response of which the legislation cannot be libelled by an order laid in the Scottish Parliament and subject to affirmative resolution procedure.

Q24: Do you have any comments on the list of offences in the schedule in respect of which the misogyny aggravation cannot be libelled?

189. Only 40 respondents made comments at this question. A minority agreed generally with the list, saying the offences were inherently misogynistic and that it was extensive or comprehensive. Other than these, very few comments addressed the list of offences specifically; a minority of mainly individuals reiterated disagreement with the proposals in terms repeated throughout their answering.

190. A small number agreed that certain specified offences should be on the list, including domestic abuse. One justice / legal organisation supported “inclusion of offences which contain a significant sexual aspect) as described in the Sexual Offences Act 2003, Schedule 3, paragraph 5.” However, another organisation from the same sub-group was less certain: “We note that the consultation proposes to add several offences to the list suggested by the Working Group. We believe that further consideration should be given to this matter, should the carve-out be adopted. For example, should it apply to offences where there is ‘a significant sexual aspect to the offender’s behaviour in committing the offence” and are therefore subject to notification requirements under paragraph 60 of Schedule 3 to the Sexual Offences Act 2003?”.

191. A very small number of respondents voiced scepticism as to whether misogyny is or would be taken into account in offences, for instance where the evidence supports clear misogynistic intent over and above the fundamental means required for the core offence. A women’s organisation stated:

“It is perhaps not the design of the law that is the issue here, it is the application of it by those involved across the criminal justice processes which fails women and girls”

192. A potentially problematic case was raised as follows:

• How offences subject to the carve-out should be treated at sentencing when committed by a woman or girl; it would be possible to conceive of a situation where such offending was accompanied by behaviour which allowed a court to conclude that it was motivated to some degree by misogyny.

193. Single respondents voiced the following opinions:

• An exemption list of offences would be overly complex.
• Advocation of adding online abuse to the list.
• The list is short on detail.

Q25: Do you have any other comments about the statutory aggravation relating to misogyny?

194. Only 41 responses were received at this question. A minority of these reiterated general support for the statutory aggravation, also citing its importance for the protection and safety of women and girls and commenting about the abhorrent aspects of misogyny and its prevalence. Similar numbers reiterated objections, and in particular claimed this was sexist and discriminatory and cited a need for similar protections for men and / or trans women.

195. The other main theme which arose was that of a need for non-legislative initiatives to promote cultural transformation, in addition to legislation. This was voiced mainly by equalities groups, who espoused a need for more education and training about misogyny in terms of gender competence and understanding of the gendered nature of violence.

196. There were also a couple of queries about how the policy will operate in practice (e.g. about whether the statutory aggravation will result in an uplift in penalty, or how an offence aggravated simultaneously by misogyny and by one or more forms of hate crime will be treated in law), as well as a request for further advice on the best course of action from the likes of legal experts, NGOs and the third sector. There were also a couple of concerns about police resourcing and the impact on the police (e.g. in terms of training, data management, finances and the perceived increase in workload).

197. A very small number of individuals were critical of the working group, claiming that the members were all women (this is not actually the case as some members were men).

198. Other single points made were as follows:

• There should not be exemptions for religious reasons.
• Disagreement that only one source should be sufficient (in terms of no corroboration).
• Disagreement that virginity testing should be regarded as misogynistic.