Ending conversion practices in Scotland - consultation analysis: SG response

Annex A – Table of existing legislation

Existing Legislation:

Threatening or abusive behaviour (s.38 Criminal Justice and Licensing (Scotland) Act 2010

Detail

• It is an offence for someone to behave in a threating or abusive manner.
• This behaviour must be likely to cause a reasonable person fear or alarm and either be intended to cause fear or alarm or be reckless as to whether it would cause fear or alarm.

Limitations in respect of conversion practices

• Does not capture situations where the perpetrator did not intend or was not reckless as to causing their victim fear or alarm.
• Would not capture forms of conversion practices that would not be considered to be threatening or abusive.

Existing Legislation:

Stalking (s. 39 Criminal Justice and Licensing (Scotland) Act 2010)

Detail

• Stalking requires a course of conduct and there is an explicit list of conduct that falls within the offence.
• A person must intend to cause fear and alarm to their victim, or know, or ought to know in the circumstances, that the conduct would be likely to have this effect.
• It also requires the victim to suffer fear or alarm.

Limitations in respect of conversion practices

• Many forms of conversion practice would not fall within the conduct specified in the offence.
• Does not cover situations where the perpetrator did not intend or was not reckless as to causing fear or alarm.
• The harm of conversion practices can be complex and may not always resemble “fear or alarm”.

Existing Legislation:

Domestic Abuse (Scotland) Act 2018 (s1)

Detail

• It is an offence for someone to engage in a course of abusive behaviour towards a partner or ex-partner.
• A reasonable person must consider the course of behaviour likely to cause the victim harm.
• The perpetrator must intend to cause harm or be reckless as to whether harm will be caused.

Limitations in respect of conversion practices

• This legislation only applies to current or former partners, not broader familial or domestic relationships or people who are not connected.
• Does not capture situations where the perpetrator did not intend or was not reckless as to causing their victim fear or alarm.

Existing Legislation:

The Sexual Offences (Scotland) Act 2009

Detail

• Defines rape and other sexual offences in Scotland.

Limitations in respect of conversion practices

• The legislation is limited to rape and sexual assault, would not cover other forms of suppression or conversion.

Existing Legislation:

Hate Crime and Public Order (Scotland) Act 2021

Detail

• Maintains and consolidates current protections in law against offences aggravated by prejudice against disability, race, religion, age, sexual orientation and transgender identity.
• Introduces new offences of ‘stirring up hatred’ which criminalises threatening or abusive behaviour and the communication of threatening or abusive material which is intended to stir up hatred against a group of people by reason of their possessing, or appearing to possess the above particular characteristics.

Limitations in respect of conversion practices

• While the legislation strengthens and consolidates protections for those with protected characteristics, it does not directly address or define what would be considered a conversion practice or what would be deemed as an attempt to change or suppress a person’s sexual orientation or gender identity.
• Many forms of conversion practice would not fall within the conduct specified in the offence.
• It does not cover situations where the perpetrator did not intend or was not reckless as to the causing of fear or alarm.