Reforming the criminal law to address misogyny: consultation responses

An offence of Stirring Up Hatred Against Women and Girls

Key Findings

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

• Around two in three respondents supported the report’s recommendation that there should be an offence of stirring up hatred of women and girls (Q26), and almost three in four agreed with the report’s recommendation that the offence should be committed where a person behaves in a threatening or abusive manner or communicates threatening or abusive material, with the intention of stirring up hatred of women and girls (Q27).

Key themes which emerged across these questions included:

• Agreement that it was important to recognise the stirring up of hatred as an offence in law as this is not covered by current justice provisions.
• Stirring up hatred can lead to more serious incidents and behaviour.
• Concerns were raised over a rise in online hatred of women and girls, and the rise of incel groups and culture; it was urged that these be a specific target of the recommendations.
• However, some respondents felt the offence would be sexist or discriminatory unless there were similar protections put in place for men and boys. There were suggestions for a more general offence of ‘sexist stirring up of hatred’.
• Some concerns were voiced about the terminology of ‘stirring up hatred’ being too vague.
• There was support for the view that a threatening or abusive manner or the communication of threatening or abusive material will not be tolerated and must have consequences.
• Demonstration of ‘intent’ was seen as vital in constituting the offence; however defining and proving ‘intent’ was seen as problematic.
• There was general agreement that the proposed approach will protect freedom of expression. There were calls for a fair and reasonable balance between freedom of expression and preventing hatred.
• However, some respondents voiced concerns about freedom of expression being used as an excuse or defence for abuse and stirring up hatred.
• There is a need for non-legislative measures (e.g. education and training) to support a change in culture.

199. The consultation paper noted that Baroness Kennedy’s report recommended there should be an offence of stirring up hatred of women and girls. The offence should not require there to be a specific victim. While freedom of expression must be considered in determining whether the behaviour or communication was reasonable, no one should enjoy the freedom to stir up hatred towards women. Behaviour intended to stir up hatred against women and girls could take place on or offline and the offence focuses on behaviour that seeks to stir up hatred in others against women and girls rather than any behaviour that is necessarily directed at, or takes place in the vicinity of, women and girls.

Q26: Do you agree with the report’s recommendation that there should be an offence of stirring up hatred of women and girls?

200. As shown in the following table, a majority – around two in three - agreed with the Working Group’s recommendation. Only one in six respondents disagreed, with no organisations disagreeing.

201. A total of 105 respondents went on to make further comments. The majority were supportive of the recommendation.

Supportive Points

202. A minority across sub-groups reiterated their agreement at the first part of the question, saying it was important to recognise the stirring up of hatred as an offence in law as this was not covered by current justice provisions. A few respondents each gave the following reasons for supporting the recommendation:

• Protection is needed from stirring up hatred in the same way as for other characteristics or offences (e.g. race or ethnicity, homophobia).
• It adds to the stance that misogyny and stirring up hatred will not be tolerated.
• Stirring up hatred does not support living in an inclusive / equal society (restricts women’s abilities / roles, feel excluded, etc.).

203. A minority of women’s organisations and individuals commented that stirring up hatred as an aggravating factor can lead to more serious incidents and behaviour. Slightly larger numbers from predominately the same sub-groups pointed to a rise in online hatred of women and girls as perpetrated by online influencers via social media and messaging (e.g. Tiktok) and desired the offence to be applied to this specifically. Slightly smaller numbers (this time also including equalities groups) wanted the legislation to help tackle the rise of incel groups and culture.

Disagreement with the Recommendation

204. A minority who disagreed with the recommendation put forward arguments that in the main reiterated points previously made, i.e. that the offence would be sexist and discriminatory unless there were similar protections for men and boys; a few respondents added that this was likely to intimidate or silence men and boys. A more general offence of ‘sexist stirring up of hatred’ was suggested.

205. Concerns that the terminology of ‘stirring up hatred’ was too vague and required clarification were raised by a minority. It was felt that the offence could be open to arbitrary enforcement or not competent to be the basis of a legally enforced crime. A few concerns were also raised regarding freedom of expression, while a few individuals claimed that the offence was already covered by existing hate crime legislation or alternatively that the offence could be added to existing laws. A small number voiced concerns about malicious use of the offence to target transgender activists or religious communities with ‘traditional’ views on gender.

206. Finally, small numbers reiterated viewpoints that the offence should only apply to women and girls on the basis of their biological sex; while very small numbers advocated further discussion and clarity on the definition of gender relating to women and girls.

The behaviour to be covered by the offence

207. Baroness Kennedy’s report recommended adopting the approach taken for the general stirring up of hatred offence contained in the 2021 Act. This means that the offence of stirring up hatred against women and girls is committed where the accused behaves in a threatening or abusive manner, or communicated threatening or abusive material, and, in either case, has the intention of stirring up hatred against women and girls. A ‘reasonableness’ defence modelled on that contained in the 2021 Act has also been provided for.

Q27: Do you agree with the report’s recommendation that the offence should be committed where a person behaves in a threatening or abusive manner or communicates threatening or abusive material, with the intention of stirring up hatred of women and girls?

208. As shown in the following table, almost three in four respondents agreed with the report’s recommendation. Only one in eight respondents disagreed, with only one organisation disagreeing.

209. A total of 78 respondents commented further, though only a few dedicated their remarks to the definition of when the offence is committed.

Support for the Recommendation

210. The largest numbers of respondents – a minority across sub-groups – again reiterated general support and cited their approval that a threatening or abusive manner or the communication of threatening or abusive material will not be tolerated and must have consequences. It was advocated that offenders should be held to account and penalties must be clear and enforceable. A third sector organisation and an equalities organisation commented that the recommendation was in keeping with the approach taken in the Hate Crime and Public Order (Scotland) Act 2021. Furthermore, very small numbers of comments felt that the recommendation supported or supplemented the other provisions.

211. Online hatred was urged to be a specific target of the recommendations by a few respondents, with a focus on action regarding all male chat rooms and Whatsapp groups.

212. A few respondents (it appears from the names of consultation respondents that these respondents were mainly female) saw the ‘intention’ element as being crucial, as “this defines the difference between actions which should and shouldn’t be criminalised” (‘Other’ organisation). A demonstration of ‘intent’ was seen as necessary in constituting the offence.

Provisos

213. However, concerns about how to define ‘intent’ and decide on intentions were also voiced; it was thought by a few respondents that proving ‘intent’ may be difficult or impossible with it being unclear how to evidence this.

214. A few respondents repeated concerns that the definition of ‘stirring up hatred’ was too vague and that this would require a statutory definition. Two respondents preferred the use of ‘inciting’ instead as this was seen to better define the behaviour.

215. Again a few respondents were concerned to preserve freedom of expression, with suggestions that clauses or exemptions should be put in place.

Disagreement with the Recommendation

216. A minority of respondents (it appears from the names of consultation respondents that these respondents were mainly males) again reiterated their disagreement, mostly in the context of previously stated arguments against the proposals for a misogyny offence. Allegations that the proposals were sexist were foremost, with suggestions made again for a general offence of ‘sexist stirring up of hatred’.

Freedom of Expression (section 2)

217. The consultation paper explained that Baroness Kennedy’s report recommended freedom of expression must be considered in determining whether the behaviour or communication was reasonable.

Q28: Do you have any comments on the proposed approach to freedom of expression set out in the draft provisions?

218. A total of 71 responses were received at this question.

In Support

219. A minority agreed with the approach and generally commented that the safeguard is necessary and will protect freedom of expression. Further supportive remarks from a small number of respondents each included the following:

• Freedom of expression is a right under ECHR / Human Rights Act and the proposals satisfy this.
• The approach is in keeping with the provisions taken in the Hate Crime and Public Order (Scotland) Act 2021.
• Agreement that freedom of expression constitutes a reasonable defence.

220. A number of specific areas which should be classed as free expression and therefore excluded were put forward as follows, each by small numbers of respondents:

• Respectful free and frank discussion of a range of material (e.g. the political ideology of Feminism or gender equality).
• Discussion of the effects of violent misogyny on women.
• SQA curriculum and education system content.
• One-off comments.
• Expression of opinion.
• Comedy, art, film and tv performances.

221. A small number of respondents regarded the demonstration of intent as being crucial to protect freedom of expression; however, equal numbers repeated their concerns about the ‘intention’ being difficult to define or prove.

Provisos

222. A minority emphasised that there needs to be a fair and reasonable balance between freedom of expression and preventing hatred. Associated with this, there were a few comments about the boundaries between stirring up hatred and freedom of expression being too vague and in need of clarification (e.g. explaining the difference between disagreements and hate crime).

223. A small number of examples were put forward where it was thought freedom of expression should not be regarded as reasonable: these included misogynistic hate speech, repeated and regular patterns of behaviour and any instance where the police needed to be called for help.

224. Questions about the difficulties of policing and enforcing rules regarding freedom of expression were also raised in a small number of responses.

Opposing Comments

225. Concerns that freedom of expression should not be an excuse or defence for abuse and stirring up hatred were expressed by a minority of mainly individual respondents. A small number of concerns were voiced regarding the risk of abuse of freedom of expression being high or this being an excuse for intimidating or inappropriate behaviour.

226. Conversely, a few mainly male individuals (according to the names provided by consultation respondents) had concerns about risks to freedom of expression and stated that they do not want to be told what can and cannot be discussed and expressed a wariness of having to enshrine freedom of expression in law, rather than being presumed.

227. Similar numbers repeated their opposition (stated throughout the consultation) to the proposals as a whole.

Q29: Do you have any other comments on the draft offence of stirring up hatred of women and girls?

228. A total of 57 responses were received at this question. Almost all reiterated points already made.

In Support

229. A minority reiterated general support for the draft offence. Several respondents repeated concerns about the dangers of online hatred and incel group culture and the need to apply the draft offence to these.

Provisos

230. A few respondents across most sub-groups highlighted the roles of non-legislative measures such as education, training and counselling in the community as being important in changing the culture.

231. Concerns were again voiced about protecting freedom of expression by a small number of respondents; and a justice / legal and an equalities organisation raised concerns about the practical impacts of policing the offence, in terms of training, data management and recording and finance costs.

Sex and Gender-related comments

232. A minority of mainly individuals advocated an equal offence or added protections for men and boys and claimed it should be illegal for women to stir up hatred of men. A general offence of sexist stirring up of hatred was suggested to make it gender-neutral.

233. Repeating a point made previously, a small number of individuals urged that the offence should apply only to women and girls. However, two respondents thought the offence needed to be inclusive of all female-identifying people (including trans women).

Against the Draft Offence

234. General disagreement with the misogyny law being introduced were again voiced by a minority, together with criticisms that the proposals are discriminatory and are counter to the 2010 Equality Act.