Reforming the criminal law to address misogyny: consultation responses

Impact Assessments

Key Findings

Key themes emerging across these questions included:

• Positive impacts were foreseen on women’s and girls’ human rights, and women’s and girls’ equalities. It was thought the proposals will strengthen their protection.
• But negative impacts were foreseen on men’s and boys’ human rights and equalities and could be seen to be discriminatory.
• The importance of upholding human rights, equalities and other obligations was reinforced. There were some perceptions that the proposals would breach some regulations and conventions.
• Fears were expressed about negative impacts on freedom of expression (e.g. limitations on expressing opinions).
• Sex, gender and their relationship or classification with regard to the protected characteristics and the proposals was a focus for discussion, with varied viewpoints on this.
• Positive impacts were foreseen on women socio-economically speaking, though there was some concern over impacts on lower socio-economic groupings, particularly over-policing and lack of access to justice and the law; the latter point was also raised in relation to island communities.
• In general, island communities were otherwise seen to be impacted in the same ways as all others by the proposals.
• Positive impacts were foreseen on workplace culture, particularly with regard to women’s safety at work.
• Some concerns were raised about the work necessary for training and HR policy renewal and also fears about misplaced or false misogynistic accusations in the workplace. Some industry sectors were the subject of specific concerns.
• Few impacts were foreseen on privacy and data protection, or on the environment.
• There were some calls for the proposals to be implemented in concert with education to produce cultural change.
• With all impact assessments, much would depend on how the legislation is implemented in practice.

235. The consultation paper noted the need to conduct a number of impact assessments to identify issues that may affect some groups more than others and to consider how to address these issues. The impact assessments also explored what impacts the proposed reforms to the criminal law will have on matters such as privacy, equality, child rights and wellbeing and business. It is also necessary to ensure that any reforms to the criminal law comply with the European Convention on Human Rights.

Q30: Do you have any views on potential impacts of the proposals in this consultation on human rights?

236. A total of 114 responses were received. Fairly equal minorities of respondents foresaw positive and negative impacts. Only a small number foresaw no impacts.

Positive Impacts

237. A minority across most sub-groups saw a positive impact on women’s and girls’ human rights. Specific perceptions included:

• The proposals will protect women and girls.
• The proposals support equal rights for women and girls.
• The proposals improve access to justice.
• The proposals put women’s and girls’ human rights in line with human rights provided to other (protected) characteristics.
• Human rights law provides substantive authority for further action to protect women and girls from gender-based violence.

238. Additionally, a minority foresaw that women and girls will be able to live in safety and without fear.

239. A small number foresaw improvements to people’s human rights generally.

Negative Impacts

240. Fears that human rights advantages would be created for one demographic over another were espoused by a minority of mostly individual male respondents (according to the names given by respondents); the feeling amongst these was that everyone should get the same protections regardless of sex or gender. In association with this, slightly smaller numbers pinpointed negative impacts on male human rights, since they would be denied rights enjoyed by others. They held a view that the proposals were not compatible with or infringed upon the Human Rights Act and the ECHR, with Articles 6,7,8 and 14 specified in this regard. Article 14 was mentioned five times by these respondents because the proposals arbitrarily exclude some people from legal protection because of their sex. Two respondents felt the proposals were in breach of the UN Declaration on Human Rights.

241. There were also a significant number of mentions of perceived negative impacts of the proposals on freedom of speech, including limitations on expressing opinions and talking about sex in public. Similar numbers wanted to ensure freedom of speech was maintained and referred to ECHR Article 10 (Right to Freedom of Expression). Other respondents however had concerns over people hiding behind their right to freedom of speech in order to be abusive or by twisting religion to allow for hateful views. A small number voiced fears that the human rights of perpetrators would be enhanced, or that the human rights of freedom of belief and expression of women who challenge ‘gender ideology’ would be impacted.

Other Comments

242. The importance of upholding Human Rights legislation and compatibility with the ECHR was reinforced by a small minority of respondents. According to an equalities organisation:

“A number of the provisions of the ECHR may be engaged in relation to violence against women and girls – including Article 3 (Prohibition of torture, inhuman and degrading treatment or punishment); Article 8 (Right to respect for private and family life); Article 14 (Prohibition of discrimination); and Article 2 (Right to life). Other rights protected by the convention such as freedom of assembly and association (Article 11) or the right to stand for election (Article 3 of Protocol 1 to the Convention) are likely to be inhibited by tolerance of misogyny in public settings.”

243. Upholding obligations under the Istanbul Convention (Action against Violence against Women) should also be a consideration, according to two respondents.

244. Small numbers wanted clarification as to the rights of trans-status individuals under the proposals.

245. Finally, a minority foresaw that much depends on how the legislation is handled in practice.

Q31: Do you have any views on potential impacts of the proposals in this consultation on equalities and the protected characteristics set out above?

246. A total of 83 responses were received. Again, fairly equal minorities of respondents foresaw positive and negative impacts. Only a small number foresaw no impacts. Many of the themes reflected those stated regarding the impact of the proposals on human rights.

Positive Impacts

247. A minority across sub-groups foresaw general positive impacts, by way of improving equalities through criminalising unacceptable behaviours and supporting cultural change. A minority of mainly equalities and women’s organisations and (according to the names provided by respondents) female respondents saw a positive impact on women’s and girls’ equalities in terms of strengthening protection for them and supported equal rights and improving access to justice. Small numbers added that the proposals would help prevent discrimination in terms of sex or help equality of the protected characteristic of sex; or would help support protected characteristics generally and reasoned that discrimination and marginalisation is complex.

248. A couple of respondents foresaw that the proposals would uphold equalities legislation (i.e. duties in the Equalities Act).

Negative Impacts

249. A minority of mainly individual respondents thought that the proposals discriminate based on the protected characteristic of sex, pointing out inequality unless everyone has the same protections irrespective of sex or gender. Slightly fewer respondents specified negative impacts on male’s equalities. Small numbers claimed that the proposals fall foul of the Equalities Act through creating inequality.

250. A couple of respondents foresaw negative impacts on other protected characteristics, with an example given that over-policed communities, such as communities of colour, may be impacted to a greater degree.

Other Comments

251. Sex, gender and their relationship or classification with regard to the protected characteristics and the proposals was the focus of discussion for a minority of mainly female individuals (according to the names provided by consultation respondents) and women’s organisations. The highest numbers of these – a few respondents – had concerns and queries over the rights and classification of trans-status individuals under the proposals. There were suggestions that abusive behaviour directed at the trans community should be covered or is covered by Hate Crime legislation. Also, it was claimed that legal conflation of sex and gender would make many prosecutions impossible. There were advocates for ‘sex’ in the Equalities Act and the proposals to refer to biological females only, matched in roughly equal numbers by those requesting gender to be a protected characteristic (i.e. including trans women and non-binary in the classification).

252. As with the impact on human rights, a small number of respondents noted that much will depend on how the legislation is implemented in practice.

253. A few respondents reiterated negative impacts on human rights and freedom of speech.

Q32: Do you have any views on potential impacts of the proposals in this consultation on children and young people as set out in the UN Convention on the Rights of the Child?

254. A total of 65 respondents answered. Larger minorities of respondents – almost half - foresaw positive rather than negative impacts. Only a very small number foresaw no impacts. Many of the themes noted at this question reflected those seen in previous questions on the impact of the proposals.

Positive Impacts

255. A positive impact (from a minority) was primarily seen on girls, with the main theme being that the proposals will strengthen their protection. Slightly fewer respondents foresaw the proposals as strengthening the Rights of the Child and providing further protection for young people generally. A minority saw the measures resulting in a safer school and educational environment where all are treated with respect and people are empowered to stand up to casual misogyny.

Negative Impacts

256. A few respondents voiced concerns about overly harsh punishments, saying that care needs to be taken not to stoke divisions and burden boys with criminal convictions. A women’s organisation had concerns around Article 40 of the UNCRC, which:

“…guarantee(s) that the treatment of children within the penal system is “in a manner consistent with the promotion of the child’s sense of dignity and worth” and, importantly, “whenever appropriate and desirable, measures for dealing with such children [are done so] without resorting to judicial proceedings”.

257. A small number stated negative impacts on boys and foresaw they would be discriminated against.

258. Very small numbers of respondents perceived that the proposals breach the UNCRC. Articles 2 (by excluding children from the protection of the proposed legislation based on sex (or gender)) and 19 (by legal conflation of sex and gender identity) were mentioned in this regard.

Other Comments

259. A need for the proposals to be implemented in concert with an emphasis on education of young people to produce cultural change and promote the wellbeing of girls was voiced by a minority (mainly women’s organisations and individuals). It was felt this would help counter influential online figures (e.g. Andrew Tate) and enable the calling out of misogynistic behaviour. That said, a couple of respondents had concerns about restrictions on adolescents who they felt have a tendency for impulsive or rude behaviour and need to be given freedom to learn and evolve.

260. Prevention and rehabilitation education was regarded as preferable to other punishments (for minor offences) by a couple of women’s organisations.

261. A few respondents agreed it was important to uphold the Rights of the Child by prioritising children as a vulnerable group.

262. Further points reiterated those previously stated, i.e. regarding infringements of rights in other areas and the importance of how the legislation is implemented.

Q33: Do you have any views on potential impacts of the proposals in this consultation on socio-economic inequality?

263. A total of 67 respondents answered. Views were relatively polarised with large minorities of respondents seeing positive and negative impacts. A few foresaw no impacts, as it was perceived that misogyny is apparent across all social classes and did not vary with socio-economic inequality. Many of the themes again reflected those given previously regarding the impact of the proposals.

Positive Impacts

264. A minority (comprising equalities and women’s organisations and individuals) saw positive impacts on women socio-economically; it was felt that women would be more able to participate safely in education and public and working life, that the proposals would bolster their status, that they would help address the gender pay gap and bring more socio-economic equality between men and women. Related to this, a small number saw positive impacts for those at the poorer end of the socio-economic spectrum, as these are often women.

265. A minority thought the proposals would help develop a fairer and more equitable society or enhance socio-economic equality.

Negative Impacts

266. A minority thought there would be negative impacts on lower income groups. There were two separate strands to this thinking: firstly, that women may not have enough trust in the police or access to the law to report experiences, and secondly, concerns about men in this group tending to be over-policed and so may experience ‘over-criminalisation’. It was also perceived that punishments tend to have a greater punitive effect on the lower socio-economic groups; and that it would be more difficult to identify misogyny offences in wealthier groups.

267. A minority repeated their opinions that the proposals would have negative impacts on men or were discriminatory, for reasons not related to socio-economic inequality; allied to this were general disagreements with the proposals.

Other Comments

268. A few respondents raised concerns over equality of access to the law, both in terms of adequate criminal justice resources being available and perceptions that those at the lower end of the socio-economic scale lack access to justice.

269. A small number of respondents agreed it was important to uphold the Fairer Scotland Duty, arguing it was healthy for society to aim for socio-economic equality.

270. Further points reiterated those previously stated, i.e. regarding infringements of rights in other areas and the importance of how the legislation is implemented. A few respondents again made the point that the proposals need to be brought in in concert with education and prevention work.

Q34: Do you have any views on potential impacts of the proposals in this consultation on communities on the Scottish islands?

271. 39 replies were received at this question. A minority either foresaw no impacts or commented that the proposals would have the same effect on island communities as for all others since the law would be the same everywhere.

Positive Impacts

272. A few respondents cited positive impacts, all of which reframed previously stated benefits to women and in developing a fairer, more equitable society.

Negative Impacts

273. A small number of respondents raised concerns over access to the law, both in terms of adequacy of criminal justice resources in the islands and poor communications (e.g. travel requirements to court, poor internet speeds and delays in accessing the police). Allied to this were a similar number of worries over how the proposals would be enforced, given island remoteness, new legislation taking longer to filter into communities and greater costs.

274. A need to take into account smaller community issues was voiced by a similar number of respondents; problems included identification of offenders being more widely known in a tight knit community, this situation making it harder to call out misogynistic behaviour, and physical isolation increasing the possibility of being controlled.

275. A small number repeated their opinions that the proposals would have negative impacts on men or were discriminatory against men.

Other Comments

276. Local involvement in decision-making was urged by a small number of respondents, in order to let islanders have a voice, as they were perceived to be best informed to give an opinion about the impacts of the proposals.

Q35: Do you have any views on potential impacts of the proposals in this consultation on privacy and data protection?

277. This question received 32 responses, almost all from individuals. Only one mention was made perceiving a positive impact (without elaborating), while negative impacts mainly reflected previously made statements regarding men amid general disagreement with the legislation.

278. A small number stated there would be no impact on privacy and data protection.

Negative Impacts

279. A small number of male respondents (according to the names provided by consultation respondents) foresaw risks to men’s privacy. There was also a concern from one respondent about male educators being liable to Non Crime Hate Incidents on the Police Scotland database, even if just one person in their class asks Police Scotland to investigate any perceived offence.

Other Comments

280. A few respondents stated that they were in favour of the state accessing private communications if perpetrators were spreading misogyny; it was intimated these people should forfeit their right to data protection.

281. Conversely, there was an expectation (from similar numbers) that privacy and data protection laws should be meticulously observed with regard to cases where women or girls were reporting misogyny.

282. There were also a couple of calls for risk assessments to assess any impacts of the proposed legislative changes on the way that personal data is used.

Q36: Do you have any views on potential impacts of the proposals in this consultation on businesses and the third sector?

283. There were 45 comments received at this question, mostly from individuals. A majority of these mentioned negative impacts, considerably more than mentioned positive impacts.

Positive Impacts

284. Amongst the relatively few comments described were benefits to women in terms of safety at work and a reduction in gender stereotyping. Positive impacts on workplace culture were also mentioned, including a pleasant atmosphere, equality in the workplace and zero tolerance of misogyny.

Negative Impacts

285. A few respondents perceived negative impacts on workplace regulations and etiquette from the proposals, necessitating education, training and renewed HR policies needing to include a code of conduct as to what is acceptable; the latter would be a necessity as misogyny would now be a criminal offence rather than a disciplinary matter. Allied to this, concerns were expressed over misplaced or false misogynistic accusations, fears over offending people, businesses avoiding hiring women, and this impact being a factor pushing staff to request homeworking.

286. Small or very small numbers of respondents highlighted the following concerns regarding specific sectors:

• Charities / third sector: increased burden from increased demand for support resulting in extra funding requirements, a greater funding divide between female dominated charities and men’s charities.
• Social media / internet businesses: requirements for more regulation, freedom of expression fears, liability for prosecution.
• Leisure industry (e.g. bars / nightclubs / music venues): loss of business because of fears over misogyny accusations, pubs and bars requiring increased awareness and compliance problems.
• Arts and culture organisations (e.g. film / theatre / tv): freedom of expression fears, prohibitions on public performance and / or publishing of strongly worded material.
• Religion and religious organisations: worries over perceptions of misogynistic content.
• Small companies: cost burdens.

Q37: Do you have any views on potential impacts of the proposals in this consultation on the environment?

287. There were only 29 comments made at this question, again mostly from individuals. The largest numbers of these indicated that the proposals would have no impact on the environment.

Positive Impacts

288. A few respondents noted positive impacts on women, noting that a poor environment disproportionately affects women and girls while perceiving that the removal of inequalities will bring environmental benefits.

289. There were a very small number who perceived positive environmental impacts arising from improved safety settings such that women will be more inclined to use public transport.

Negative Impacts

290. A very small number foresaw an upsurge in misogyny accusations leading to generation of more paper from handling the new laws and associated increased energy usage.

Additional comments

291. Only 6 organisations added further comments. Many of the remarks either concerned the role and background of the respondent or constituted reasons for confining comments to only certain parts of the consultation (e.g. to areas where it was felt the respondent could usefully contribute).

292. There were also reiterations of points made regularly throughout the consultation questions: the need to frame the new offence carefully in the context of sex and gender, and support for a prevention approach in terms of public education for changing the culture. A women’s organisation supported the separate approach to misogyny, while a justice / legal organisation had concerns about whether the separation of misogyny offences from the hate crime framework creates any gaps in protection for men and boys from offences which are aggravated by prejudice or not, and whether there is a need to address any gaps in protection or not.

293. Finally, a justice / legal respondent gave the following overall opinion:

“…much of the conduct which is targeted by the proposed legislation is already criminal, and the proposals may do little other than change the emphasis. That, again, is matter of policy upon which we have no comment.

Considering matters very generally, legislating to create offences, where the conduct is already criminal, runs the risk of causing confusion. The essential elements of a statutory offence must be expressed in a way that will be clearly comprehensible to a jury directed by a judge. In addition, in order to make sure that the offender is properly convicted, complaints and indictments may end up being longer by dint of the inclusion of alternative, differently nuanced, charges, so that an offender will not escape justice just because the precise requirements of an offence were not met.

To that end, consideration could be given to the inclusion in the legislation of implied alternatives, such as is done in section 39(8) and (9) of the Criminal Justice and Licensing (Scotland) Act 2010.” (Justice / Legal organisation)