Consultation on amending Scottish hate crime legislation: analysis of responses

10. Association with a member of a protected group (Q21 and Q22)

10.1 The consultation paper explained that the existing statutory aggravations in relation to race, religion, disability, sexual orientation and transgender identity each apply where an offence is motivated by hostility towards one or more of these protected characteristics even in cases where the victim does not have the characteristic. The example given in the consultation paper was in relation to an individual who is assaulted because of the perpetrator’s prejudice against Muslims, but the victim is not a Muslim. In other words, the statutory aggravations apply where the perpetrator presumes that the victim has the identity characteristic – even if the perpetrator is mistaken. Lord Bracadale recommended that statutory aggravations should continue to apply in this way (Recommendation 5).

10.2 The consultation paper also noted that, at present, the race and religion statutory aggravations apply in cases where a victim does not have a protected characteristic but is nevertheless targeted by a perpetrator because of their association with someone with a protected characteristic. The consultation paper gave an example of a white person assaulted because they socialise with a person of a different race. This ‘association principle’ does not currently apply in relation to the protected characteristics of disability, sexual orientation and transgender identity. However, Lord Bracadale recommended that it should apply in relation to all the protected characteristics covered by hate crime legislation (again, Recommendation 5).

10.3 The consultation paper stated that the Scottish Government proposes to accept Lord Bracadale’s recommendation on these points, and views were invited as follows:

Question 21: Do you think that the statutory aggravations in Scottish hate crime legislation should apply where people are presumed to have one or more protected characteristics? [Yes / No / Unsure]

Question 22: Do you think that the statutory aggravations in Scottish hate crime legislation should apply where people have an association with that particular identity (relating to religion, sexual orientation, age, gender, race, disability, transgender identity and intersex)? [Yes / No / Unsure]

Key points

• There were mixed views overall about whether statutory aggravations should apply in cases where people are presumed to have one or more protected characteristic (35% of respondents said ‘yes’, 47% said ‘no’, and 19% said they were unsure, representing 176, 237 and 95 out of 508 respondents, respectively). However, compared to individuals, organisations were overwhelmingly in support of this proposal, with 91% (61 out of 67 respondents) agreeing.
• Similarly, there were mixed views overall on whether the statutory aggravations should apply where people have an association with an individual who is a member of a protected group. Once again, however, compared to individuals, organisations were overwhelmingly in favour, with 82% (56 out of 68 respondents) agreeing.
• With regard to both Question 21 and 22, those in favour argued that it is the motivation of the offender, and not the identity of the victim, that is the essential component of a hate crime. Those opposed generally argued that all victims of crime should be treated equally under the law, and that there should not be additional protections given to some groups over others. These respondents also believed that it would be difficult to prove ‘association’.
• Respondents repeatedly highlighted the ‘intersectional’ nature of protected characteristics – i.e. that some individuals may have more than one protected characteristic and that offences can be motivated by hostility towards the combination of an individual’s characteristics. Those who raised this issue wanted Scottish hate crime legislation – and monitoring arrangements – to better recognise the intersectionality of protected characteristics.

Presumed membership of a protected group (Q21)

10.4 Lord Bracadale recommended that statutory aggravations should continue to apply in cases where an individual is presumed by a perpetrator to have one or more protected characteristic, and the Scottish Government proposed to accept this recommendation. Question 21 invited views on this issue.

10.5 Table 10.1 shows that there were mixed views overall on whether statutory aggravations should apply in cases where people are presumed to have one or more protected characteristic (35% of respondents said ‘yes’, 47% said ‘no’, and 19% said they were unsure). However, amongst organisations, the vast majority (91%; 61 of 67 respondents) agreed – with only faith groups expressing more mixed views on this question.

Table 10.1: Q21 – Do you think that the statutory aggravations in Scottish hate crime legislation should apply where people are presumed to have one or more protected characteristics?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	n	%
Third sector organisations	28	97%	–	0%	1	3%	29	100%
Public sector / partnerships	21	100%	–	0%	–	0%	21	100%
Faith groups	3	43%	3	43%	1	14%	7	100%
Other organisations	9	90%	–	0%	1	10%	10	100%
Total organisations	61	91%	3	4%	3	4%	67	100%
Total individuals	115	26%	234	53%	92	21%	441	100%
Total (organisations and individuals)	176	35%	237	47%	95	19%	508	100%

Percentages may not total 100% due to rounding.

10.6 A total of 226 respondents (55 organisations and 171 individuals) provided comments at Question 21.

10.7 The comments indicate that there may have been some confusion among respondents about what this question was asking. The intention of the question was to invite views about whether the statutory aggravations should (continue to) apply when a perpetrator is motivated by hostility towards a particular protected characteristic – even when the victim does not, in fact, have that characteristic. In other words, the victim has been subjected to an assault or attack based on the perpetrator’s prejudice, but the perpetrator is mistaken about the victim’s membership in a certain protected group.

10.8 However, most organisational respondents, and some individual respondents, understood the question to be asking about the application of hate crime legislation when a person has more than one protected characteristic. In other words, respondents thought the question was asking about the ‘intersectionality’ of protected characteristics.

10.9 Given this possible confusion, the findings shown in Table 10.1 above should be treated with caution.

10.10 Note that those who answered ‘unsure’ to this question generally made one of two types of comment: (i) that they did not understand the question, or (ii) that they believed the protected characteristics were stated incorrectly in the question. The latter issue is discussed in further detail at the end of this section (see paragraph 10.17).

Views in favour of an aggravation applying in cases of presumed membership of a group with protected characteristics

10.11 In general, respondents answering ‘yes’ to Question 21 did not provide detailed reasons for their views regarding the application of the statutory aggravations where a victim is presumed by the perpetrator to have one or more protected characteristics. Some simply stated that they agreed with Lord Bracadale’s conclusion and recommendation on this issue. Occasionally, organisations commented that the communities they represented were often targeted for abuse on the basis of other people’s (incorrect) perceptions of – for example – their religion, sexual orientation, sex, or transgender identity. Some individuals said that, in such cases, the victim should be given the same protection that a person with the protected characteristic would have.

10.12 Respondents – both organisations and individuals – repeatedly raised another issue in their comments at this question. Specifically, they highlighted the ‘intersectional’ nature of protected characteristics – i.e. that some individuals have more than one protected characteristic and that offences can be motivated by hostility towards the combination of an individual’s characteristics. For example, it was noted that there is often a gendered dimension to Islamophobia due to the greater visibility of Muslim women who wear the veil. Similarly, it was reported that disabled people with other protected characteristics are more likely to be victims of hate crime than non-disabled people who have those same protected characteristics. These respondents emphasised that the intersectionality of protected characteristics can increase the impact of hate crime, both on the individual victim and on the community (or communities) to which they belong.

10.13 Those who raised this issue wanted Scottish hate crime legislation – and monitoring arrangements – to better recognise the intersectionality of protected characteristics. Whilst respondents understood that it is currently possible to bring forward charges involving more than one statutory aggravation, they suggested that guidance should be issued to law enforcement organisations to clarify the potential for doing so. This group suggested that where an individual has multiple protected characteristics, multiple aggravations should always be applied, and taken into account at sentencing.

10.14 Regarding the monitoring of intersectional hate crime offences, some respondents commented that, at present, the Crown Office and Procurator Fiscal Service publishes information on the number of charges that had more than one aggravation applied. However, they noted that offences involving hostility towards more than one characteristic are recorded separately by each characteristic. These respondents thought this method of recording did not allow for the effective monitoring of these kinds of offences. Instead, they suggested that details should be given not only about the number of charges that had more than one aggravation, but also the combinations of protected characteristics that were subject to multiple aggravations.

Views opposed to an aggravation applying in cases of presumed membership of a group with protected characteristics

10.15 Among those who answered ‘no’ at Question 21, the most common view was that all victims of crime should be treated equally regardless of their characteristics or presumed characteristics. Some individuals went further and argued that no protected characteristic should get any special treatment or exemption from discussion and / or criticism. Those who offered the latter view were generally concerned about the effects of hate crime legislation on freedom of speech and advocated for the repeal of all hate crime legislation. Occasionally, some respondents in this group made the distinction between ‘hate speech’ – which they thought should not be criminalised – and other ‘serious’ offences, such as those involving assault or murder – which they thought should be dealt with through existing common law.

10.16 Less often, individual respondents answering ‘no’ addressed the intention of the question and commented on the use of the word ‘presumed’. In general, these respondents argued that the law should not be concerned with ‘presumptions’, but only with evidence (which they described as ‘facts’). There were concerns about criminalising individuals on the basis of what someone else assumed they thought.

Comments on the need to correctly reference the protected characteristics

10.17 A recurring theme in the comments at Question 21 – irrespective of whether respondents answered ‘yes’, ‘no’ or ‘unsure’ – was that the protected characteristics had been listed incorrectly in the consultation paper and consultation question. Respondents expressed concerns about this, and emphasised its importance, given that the topic of the consultation was about legislative change. These concerns were raised both by organisations and individuals. The points made by this group were that:

• Sex, not gender, is the protected characteristic.
• Gender reassignment, not transgender identity, is the protected characteristic.
• Intersex is not a specific protected characteristic, and there was a suggestion that it should not be listed separately from ‘sex’. (See Chapter 5 for further discussion of this issue).
• Some respondents noted that there are other protected characteristics, which were not referred to in the question. These were: pregnancy and maternity, and marriage and civil partnership.

Association with a protected group (Q22)

10.18 Lord Bracadale recommended that the ‘association principle’ should apply in relation to all the protected characteristics – not just the protected characteristics of race and religion, as it does at present. This would allow a statutory aggravation to be applied in cases where an individual is not a member of a protected group but is nevertheless targeted by a hate crime because of their association with a protected group. The Scottish Government proposed to accept Lord Bracadale’s recommendation, and respondents were asked for their views.

10.19 Table 10.2 shows that there were mixed views overall about whether statutory aggravations should apply in cases where a person has an association with a particular protected characteristic (29% said ‘yes’, 52% said ‘no’, and 19% were ‘unsure’). By contrast, amongst organisations, a large majority (82%; 56 out of 68 respondents) agreed that the statutory aggravations should apply in such cases. Only faith groups did not share this level of consensus and instead expressed more mixed views.

Table 10.2: Q22 – Do you think that the statutory aggravations in Scottish hate crime legislation should apply where people have an association with that particular identity (relating to religion, sexual orientation, age, gender, race, disability, transgender identity and intersex)?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	n	%
Third sector organisations	25	81%	1	3%	5	16%	31	100%
Public sector / partnerships	19	90%	1	5%	1	5%	21	100%
Faith groups	3	43%	3	43%	1	14%	7	100%
Other organisations	9	100%	–	0%	–	0%	9	100%
Total organisations	56	82%	5	7%	7	10%	68	100%
Total individuals	90	21%	254	59%	88	20%	432	100%
Total (organisations and individuals)	146	29%	259	52%	95	19%	500	100%

Percentages may not total 100% due to rounding.

10.20 A total of 223 respondents (55 organisations and 168 individuals) provided further comments at Question 22.

10.21 As in the comments to Question 21, respondents (mostly individuals) who answered ‘unsure’ to Question 22 generally made one of two types of comment: (i) that they did not understand the question, or (ii) that they believed the protected characteristics were stated incorrectly in the question. (This issue also arose in relation to Question 21 – see paragraph 10.17.)

Views in support of the ‘association principle’ in hate crime legislation

10.22 Respondents answering ‘yes’ to Question 22 often stated that the proposal to extend the ‘association principle’ to other statutory aggravations seemed ‘reasonable’ and ‘logical’. This group, which included organisations and individuals, pointed out that there is considerable evidence of harassment, abuse and assault being targeted at the families, friends and other associates of people who have (or are perceived to have) protected characteristics. Some respondents reported that the carers of disabled people have been targeted; others commented that even a perceived association could be sufficient to make someone a victim of hate crime.

10.23 This group of respondents repeatedly argued that it is the motivation of the offender, and not the identity of the victim, that is the essential component of hate crimes. Some respondents commented that the targeting of individuals who are associated with a protected group is an attempt to isolate and intimidate the protected group through the intimidation of their friends. Thus, in their view, statutory aggravations should apply in any case of criminal behaviour motivated by prejudice towards a particular group – regardless of whether the victim belongs to, is presumed to belong to, or associates with that particular group.

10.24 Respondents also noted that the proposed extension of the ‘association principle’ would bring about greater consistency in hate crime legislation, and better reflect the protections afforded to people under the Equality Act 2010 – which includes the concept of discrimination by association. Respondents said this change would ensure the protection, not only of the families, friends and other associates of individuals with protected characteristics, but also of those people who act as advocates and champions for groups with protected characteristics.

10.25 Less often, some third sector respondents stated that they had no objection to extending the existing protection of association for racial and religious aggravations to other protected characteristics. However, their view was contingent upon having no loss or reduction in the existing legal protections against racial prejudice. 

Views opposed to the ‘association principle’ in hate crime legislation

10.26 Among respondents answering ‘no’ at Question 22, there was concern that extending the ‘association principle’ to other statutory aggravations could lead to confusion and uncertainty, and could be problematic, given the ‘highly nuanced nature of associative discrimination’.^[11] Some respondents suggested that it can be difficult to prove ‘association’ and there was a recurring view that the concept of ‘association’ was ‘too vague’, ‘unclear’, or ‘fraught with misinterpretation’.

10.27 Other common views, expressed mainly by individuals, were that: (i) all victims of crime should be given the same protections in law regardless of their associations; (ii) hate crime legislation should be abolished because it is authoritarian, and it infringes upon freedom of belief and freedom of expression; (iii) criminal offences should not be based on perceptions about the motivations of the perpetrator; and (iv) the police are unable to prosecute ‘normal crime’ because they spend too much time prosecuting ‘hate crimes’.

10.28 Very occasionally, individuals said they answered ‘no’ to this question because they believed that the protected characteristics were listed incorrectly in the question (as discussed in paragraph 10.17).