Hate Crime and Public Order (Scotland) Act 2021- SSI to add sex as a characteristic: consultation analysis

Addition of characteristic of sex to offence of stirring up hatred and aggravation of offences by prejudice

Consultees were asked if they support the extension of both the stirring up of hatred offence and the aggravation of offences by prejudice to cover the characteristic of sex. There were four options available to respondents:

• Support extension to both aggravation of offences by prejudice and stirring up of hatred offence;
• Do not support extension to either aggravation of offences by prejudice or stirring up of hatred offence;
• Support extension only to aggravation of offences by prejudice.
• Support extension only to stirring up of hatred offence.

There were 361 responses to this question, of which 32 were from organisations and 329 were from individual respondents.

There was a significant divergence between the responses from individuals to this question and the responses from organisations.

Of the individual respondents, 294 respondents (89%) supported the extension of both the stirring up of hatred offence and the provision concerning aggravation of offences by prejudice to cover the characteristic of sex. 25 respondents (8%) did not support the extension of either the aggravation or the stirring up of hatred offence to the characteristic of sex. 10 respondents (3%) supported the characteristic of sex being added to the aggravation of offences by prejudice, but not to the stirring up of hatred offence. There were no respondents who supported the characteristic of sex being added to the stirring up of hatred offence but not to the aggravation of offences by prejudice.

Responses from organisations were much more evenly split as to whether they supported the addition of the characteristic of sex to the 2021 Act. 15 respondents (47%) supported this approach, while 16 respondents (50%) were opposed^[3]. One organisation supported the extension of the aggravation of offences by prejudice to the characteristic of sex, but not to the stirring up of hatred offence.

No respondents supported it extending to the stirring up of hatred offence but not the statutory aggravation.

Organisation respondents

32 organisation respondents provided comments in response to this question^[4].

A significant majority of organisation respondents who did not support the addition of the characteristic of sex to the 2021 Act either said that they thought that there should be a specific Bill on misogyny instead, or drew attention to the fact that the Working Group on Misogyny and the Criminal Law, which reported to Scottish Ministers in 2022, recommended that there should be specific legislation on misogyny and that the characteristic of sex should not be added to the 2021 Act. It should be noted that a number of respondents who supported the addition of the characteristic of sex to the 2021 Act said that they did so in light of the Scottish Government’s decision not to introduce legislation for a Misogyny Bill in this Parliament, and that a stand-alone Bill was their preferred option.

A significant majority of organisation respondents who did not support the extension of the addition of the characteristic of sex to the 2021 Act also stated that they did not support this because it is gender-neutral. A number of those respondents stated that they thought this could encourage malicious or frivolous complaints from men against women or that they thought that a gender-neutral approach was contrary to the Convention on the Elimination of all forms of Discrimination Against Women and/or the Istanbul Convention on Violence Against Women.

Around half of organisation respondents who did not support the extension of the addition of the characteristic of sex to the 2021 Act said that one of their reasons for this was that they thought crimes motivated by misogyny and prejudice against women did not fit well into the hate crime legislative framework. A number noted that in their view, misogynistic crime was often not motivated by hatred, but by contempt or a belief that women and girls did not matter.

Around half of organisation respondents who supported the addition of the characteristic of sex to the 2021 Act said that they thought that “sex” should be treated in the same way as other characteristics covered by the Act^[5]. A number of respondents said that they thought it was needed to deal with either a rise in, or the prevalence of, misogynistically motivated criminal behaviour or crimes against women and girls. A small number of respondents who supported the approach raised other issues: that a gender-neutral approach was appropriate and in keeping with the hate crime legislative framework, that it should have been included at the outset when the Bill was introduced in Parliament, and that the existence of a statutory aggravation would help to change public attitudes and/or the approach of the police towards crimes motivated by hatred of women and girls.

A number of organisations commented specifically on the stirring up of hatred offence. The one organisation which supported the addition of the characteristic to the statutory aggravation but not to the stirring up of hatred offence said that they took this view because they thought that the stirring up of hatred offence could be likely to encourage spurious reporting of non-criminal behaviour to the police, which would impact on those accused, even though they thought it would not ultimately result in prosecution or conviction. A small number of organisations said that they did not support the inclusion of a stirring up of hatred offence in the 2021 Act but that if there is such an offence, it should extend to the characteristic of sex to ensure a consistent approach across the different characteristics covered by the Act.

A number of comments were made by respondents which did not directly relate to whether they supported the policy. A small number highlighted what they saw as the need for non-legislative action to address misogyny, including public awareness campaigns and funding for organisations providing support for victims and one organisation which said that while they supported the addition of the characteristic of sex to the 2021 Act, they disagreed with the use of secondary legislation to make such a change as they thought such a significant change should be subject to the level of scrutiny that is applied to primary legislation.

Individual respondents

124 of the 329 individual respondents who responded to this question used the comments box to provide reasons for their views.

A significant number of those who commented expressed the view that they supported the extension of the 2021 Act to cover the characteristic of sex because they thought that the characteristic of sex should be treated in the same way as to the other characteristics covered by the Act. Many of these respondents said that they considered that the main reason for doing so was to ensure that protection is in place for women and girls who are victims of crime because they are women and girls.

Several other issues were raised by small numbers of individual respondents. The most common came from a number of individuals who supported adding sex as a characteristic because they believed women and girls targeted for being female represent either the largest group of hate crime victims, or at least a substantial proportion. There were also a small number of respondents who specifically stated that they thought that the characteristic of sex should have been included in the legislation from the outset.

A small number of respondents stated that they did not support hate crime law, or specifically that they did not support the concept of an offence of stirring up of hatred, but that if these offences are to be in place, they should apply to the characteristic of the sex in the same way that they apply to the other characteristics covered by the 2021 Act.

As noted above, the number of individual respondents who did not support the extension of the characteristic of sex to the 2021 Act was small, though they were more likely to state the reasons for their view. The most common reasons given for this were around that around a third said that they thought that the 2021 Act should be repealed in its entirety, and a similar number who said that they thought that the hate crime legislative framework was not suitable for dealing with crimes motivated by prejudice relating to the victim’s sex. Some of these respondents said that they thought specific legislation on misogyny was required to address the issue.

Other reasons given by small numbers of individual respondents for not extending the 2021 Act to cover the characteristic of sex were that they didn’t believe it would be implemented in a gender-neutral manner or that they thought that the fact that the provision applied to the characteristic of sex in a gender-neutral manner would encourage false or frivolous allegations.

A number of respondents used the comments section to address issues which relate to other questions in the consultation. For example, a small number of respondents said that it was important that the characteristic of sex be defined by reference to biological sex, birth sex or ‘sex rather than gender’ and a very small number of respondents said that it should be defined by reference gender rather than sex or that they did not support the provisions because they do not protect victims of transmisogyny

Half of the 10 individual respondents who stated that they supported extending the aggravation to cover the characteristic of sex but not the stirring up of hatred offence provided comments on their reasons.

These related to what they saw as its negative impact on the right to freedom of expression. Of these, two respondents said that they thought the offence risked criminalising what would otherwise be lawful speech and infringing on the right to debate. Three respondents stated that, while they did not think that the offence itself criminalised behaviour that ought to be lawful, there was a risk that vexatious or frivolous complaints could result in individuals wrongly being drawn into the criminal justice process, even if their behaviour would be unlikely to result in a criminal conviction.