Ending conversion practices in Scotland - consultation analysis: SG response

Harm

66. The consultation proposed that it would be a requirement that harm must be caused in order for an act or course of behaviour to be criminalised. There was a particularly high level of interest in this aspect of proposals and many respondents expressed concerns about how it may work in practice.

67. A majority of respondents (65%)^[7] did not support the government’s proposed approach. This included both respondents who were against the proposals overall, those who viewed the harms requirement as too low of a threshold and those who were otherwise supportive of proposals, but who felt the threshold for harm was too high. Of the remaining respondents, 27% supported the proposed approach. Many of those who supported the proposed approach expressed the view that conversion practices are inherently harmful, but also recognised the importance of a harms requirement in ensuring a sufficient threshold for criminality.

Definition

68. Many respondents who were against the proposals overall highlighted concerns about the definition of harm. Psychological harm was considered by some to be too subjective and the inclusion of fear, alarm and distress was seen to be a particularly low bar for criminalisation.

69. While the concepts of psychological harm, fear, alarm and distress, are already used in Scots law, we acknowledge the feedback we have received that more reassurance and clarity is sought about what kind of harm will be considered serious enough for an act to fall within the criminal offence.

70. Many respondents expressed a concern that an act could be criminalised on the sole basis of an individual expressing that they were distressed. However, this does not account for the other proposed tests which would apply– namely: that the act(s) must have been intended to change or suppress an individual’s sexual orientation or gender identity, the act(s) must either constitute a conversion practices service or be part of a coercive course of behaviour and that the act(s) must be directed at an individual. It is also important to consider that harm would have to be corroborated and proven beyond reasonable doubt.

71. Some respondents who were otherwise supportive of consultation proposals expressed concern that requiring proof that harm had occurred as a result of the service or course of behaviour would place a large evidential burden on the victim which could lead to re-traumatisation. It was also noted by respondents that evidence in this area is clear that the harms associated with conversion practices are often complex and can sometimes take years to manifest, which some respondents felt was not appropriately reflected by this aspect of proposals.

72. We acknowledge the request from respondents to provide more clarity about how the harms requirement would work in practice and the need for reassurance that only sufficiently serious instances of harm would be criminalised.

73. We are also considering the feedback we received regarding the re-traumatisation of victims, along with the complexity of the trauma and harms associated with conversion practices which may take many years to manifest to their full extent.

74. As a result, we are continuing to review and develop the proposed harm test with a view to addressing these key issues.