Hate Crime and Public Order (Scotland) Act 2021- SSI to add sex as a characteristic: equality impact assessment

Background

The addition of sex to the 2021 Act extends the legislation in two ways:

Aggravation of offences by prejudice relating to sex

It adds the characteristic of sex to the provision concerning the aggravation of offences by prejudice. This does not have the effect of criminalising behaviour which would not otherwise be criminal. The effect of this is that where a person is found to have committed an offence and, in doing so, they have either demonstrated malice and ill-will towards the victim because of their sex, or, whether or not there is a specific victim, they have been motivated to commit the offence by malice and ill-will against a group of people defined by reference to their sex, the offence is aggravated by prejudice relating to sex.

Where the aggravation is proven, the court is required to record this and take it into account when sentencing the offender. The court is required to state in court the difference that the fact the offence was so aggravated made to the sentence that was imposed, or, where it did not make a difference, the reason for this.

Stirring up hatred in relation to sex

It is an offence to stir up hatred against a group of persons based on that group sharing a particular characteristic covered by the Act. Stirring up hatred refers to behaviour that is intended to incite others to feel hatred towards a group of people who share a particular characteristic. The SSI extends this to cover the characteristic of sex.

The offence is committed where a person engages in threatening or abusive behaviour, or communicates threatening or abusive material, with the intent of stirring up hatred against a group of people who share the relevant characteristic. As such, the threshold for the offence is high: it is limited to behaviour or communication which is threatening or abusive and the accused must intend by their behaviour or communication to stir up hatred (as distinct from e.g. disrespect or disdain.)

By way of general context about the operation of stirring up hatred law, it’s important to distinguish stirring up hatred from simply expressing an opinion. The key factor is intent: stirring up hatred involves a clear intention to arouse hatred of certain groups in others, not (simply) to offend or provoke (though that may also arise). In law, this is treated as a serious offence because of the potential harm it can cause to individuals and society through stirring up hatred in relation to certain groups. The type of conduct assessed in this impact assessment therefore is that which goes beyond what might be described as offensive or discriminatory remarks. The legislation is designed to capture instances of deliberate actions or communications, such as publications, online posts, or public displays that are designed to provoke hatred against people because of their sex. The aim of such behaviour is to encourage others to adopt hateful attitudes or behaviours toward the group as a whole.

Stirring up hatred can have serious consequences. It can create a climate of fear and intimidation; make individuals feel unsafe or unwelcome in public spaces or online; reinforce harmful stereotypes and deepen social divisions and/or increase the risk of harassment, abuse, or violence.

While the new laws will relate to women and girls and men and boys, it is known that women and girls disproportionately experience such behaviour. This doesn’t just affect the individuals targeted - it has the ability to make all women feel vulnerable and marginalised, and behaviour that encourages hatred against women by portraying them as inherently inferior or dangerous can contribute to a wider culture of misogyny.

In their responses to the consultation on the draft SSI to add sex to the 2021 Act, many organisations expressed the view that the new laws would formally recognise behaviour commonly referred to as “misogyny” as a form of hate. For the purposes of this EQIA, “misogyny” is used to describe conduct which, under the statutory instrument, would constitute an offence under the “stirring up hatred” provision due to its definition of behaviour which is threatening or abusive and in doing so is intended to stir up hatred of women or girls on the basis of their sex. Similarly, where hostility is directed toward men and boys because of their sex, this may be described in some literature as “misandry.” While the term misandry is less frequently documented and criminal behaviour motivated by or demonstrating misandry appears to be much less prevalent than criminal behaviour motivated by or demonstrating misogyny, its inclusion in this impact assessment ensures that the analysis reflects the full scope of sex-based hostility addressed by the legislation.