Consultation on amending Scottish hate crime legislation: analysis of responses

6. Gender (Q7–Q10)

Part Two: New statutory aggravations

6.1 This chapter discusses respondents’ views about whether gender hostility should be included within new hate crime legislation and, if so, how.

6.2 The consultation document noted that one of the conclusions of Lord Bracadale’s review of hate crime legislation was that gender-based hostility should be categorised as a hate crime. The consultation document set out the arguments considered by Lord Bracadale in relation to whether the offence should take the form of (i) a statutory aggravation based on gender hostility, or (ii) a standalone offence.

6.3 Following consideration of all these arguments, Lord Bracadale concluded that the clearest and most effective way to address gender hostility in hate crime legislation was through the use of a statutory aggravation. He thus recommended the creation of a new statutory aggravation based on gender hostility (Recommendation 9).

6.4 However, the consultation paper set out four options for addressing this issue, and asked respondents which they preferred: (i) Option A – establish a statutory aggravation based on gender hostility (Lord Bracadale’s recommendation); (ii) Option B – develop a standalone office relating to misogynistic harassment; (iii) Option C – build on the Equally Safe strategy to tackle misogyny; and (iv) Option D – take forward all of the first three options.

Question 7: Do you agree with Option A to develop a statutory aggravation for gender hostility? [Yes / No / Unsure] Please provide details.

Question 8: Do you agree with Option B to develop a standalone offence for misogynistic harassment? [Yes / No / Unsure] If you agree, please tell us why and provide examples of the types of behaviour that could be captured by this offence.

Question 9: Do you agree with Option C of building on Equally Safe to tackle misogyny? [Yes / No / Unsure] If you agree, please tell us why.

Question 10: Do you agree with Option D of taking forward all of the identified options? [Yes / No / Unsure] If you agree, please tell us why and provide examples of the types of behaviour that could be captured by the standalone offence.

Key points

• In general, organisational respondents supported a legislative response to hate crimes against women. Organisations were more likely to favour the development of a statutory aggravation for gender hostility (Option A) rather than the development of a standalone offence for misogynistic harassment (Option B). This group included public sector violence against women partnerships. However, in general, third sector organisations with specialist expertise in women’s issues strongly favoured Option B, and organisations answering ‘unsure’ in response to these questions often explicitly stated that they deferred to the views of these expert organisations. Less often, third sector women’s organisations expressed support for both a statutory aggravation and a standalone offence.
• Organisational respondents also generally supported building on the Equally Safe strategy (Option C), and it was common for organisations to say that any legislative approach to tackling misogynistic harassment should be complemented by efforts to change attitudes in society towards women and girls. There was no clear consensus among organisations regarding Option D (taking forward all the identified options, A, B and C). Those in favour suggested that Options A and C could proceed initially, while further work was undertaken to develop a standalone offence (Option B). In general, those who opposed Option D did so because they preferred an approach focused either on Options A and C, or on Options B and C, but not all three options.
• In contrast to organisations, individuals either expressed opposition, or indicated no clear consensus, in relation to all four options, A, B, C and D. Individuals who were opposed to all options generally reiterated their opposition to hate crime legislation.
• Issues raised by respondents across all four questions related to whether any legislative response to tackle hate crimes against women should provide protection to women only, or to both women and men. There was not a consensus on this issue, although organisations with expertise in women’s issues believed that the focus should be on women only. Respondents also repeatedly said that the protected characteristic specified in the Equality Act 2010 was ‘sex’, not ‘gender’ and that this should be reflected in hate crime laws. Some respondents specifically stated that they did not support a statutory aggravation for ‘gender’ hostility.

6.5 Before discussing the findings in relation to each of these questions, it is worth noting that respondents did not necessarily see the four options presented in the consultation paper as mutually exclusive – for example:

• 58 respondents (7 organisations and 51 individuals) answered ‘yes’ to both Question 7 and Question 8, to indicate that they supported a statutory aggravation relating to gender hostility (Option A) and a standalone offence for misogynistic harassment (Option B).
• It was also relatively common for respondents (both organisations and individuals) to indicate support either for Option A or Option B (but not both), and for Option C (building on Equally Safe – the non-legislative approach).
• The 83 respondents who answered ‘yes’ at Question 10 indicating support for Option D (taking forward all the identified options) provided a variety of combination of answers to Questions 7, 8 and 9.

Option A: A statutory aggravation for gender hostility (Q7)

6.6 Table 6.1 shows that a majority of respondents overall (59%) disagreed that there should be a statutory aggravation for gender hostility. However, over a quarter (28%) said ‘yes’ and 14% said ‘unsure’. The table also indicates that organisations and individuals held different views on this question, with 59% of organisations answering ‘yes’ and a similar proportion of individuals (64%) answering ‘no’. Among organisations, only faith groups were more likely to disagree than agree with Option A, with five out of eight respondents giving this view, although views were mixed among third sector bodies. 

Table 6.1: Q7 – Do you agree with Option A to develop a statutory aggravation for gender hostility?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	N	%
Third sector organisations	13	43%	8	27%	9	30%	30	100%
Public sector / partnerships	18	82%	3	14%	1	5%	22	100%
Faith groups	3	38%	5	63%	–	0%	8	100%
Other organisations	7	78%	1	11%	1	20%	9	100%
Total organisations	41	59%	17	25%	11	16%	69	100%
Total individuals	108	23%	300	64%	64	14%	472	100%
Total (organisations and individuals)	149	28%	317	59%	75	14%	541	100%

Percentages may not total 100% due to rounding.

6.7 Altogether, 267 respondents (61 organisations and 206 individuals) commented at Question 7. Respondents expressed a range of complex views. There are two points to note:

• Respondents often made similar points in their comments, irrespective of whether they answered ‘yes’, ‘no’ or ‘unsure’.
• Respondents often expressed confusion – or requested clarification – about precisely what a statutory aggravation for gender hostility would entail. 

6.8 Given both these points, caution should be exercised in interpreting the findings presented in Table 6.1 above.

6.9 The analysis set out below discusses the views in favour of, and the views opposed to, a statutory aggravation for gender hostility. This is followed by a discussion of other related points made by respondents.

6.10 It should be noted that third sector organisations with specialist expertise in women’s issues generally answered ‘no’ to Question 7. In addition, organisations who answered ‘unsure’ at Question 7 often said that they deferred to these expert organisations on this issue. In some cases, those who answered ‘unsure’ also made similar points to those who answered ‘no’ at Question 7.

Views in favour of a statutory aggravation for gender hostility

6.11 Respondents who answered ‘yes’ to Question 7 gave the following reasons for their view:

• Misogyny has long been a serious issue and offences motivated by misogyny are commonplace; the need to address this through legislation, and to provide justice to women is ‘urgent’.
• The proposed statutory aggravation would address a gap in current legislation – separate from that relating to domestic abuse – and would be consistent with the legislative approach taken in relation to (most) other protected characteristics.
• It would make it more socially and culturally acceptable to object to gender-related hostility – and would give victims greater confidence that complaints will be taken seriously by the criminal justice system.
• It would ‘send a clear message’ that such behaviour is not acceptable and will not be tolerated.
• It would result in better record keeping / statistics relating to these offences, and a more informed, targeted response to offenders and offending.
• A legislative response would be consistent with international obligations to prevent and protect against discrimination and violence targeted at women and girls.^[7]

6.12 There were two other recurring views among those favouring a statutory aggravation for gender hostility.

6.13 First, respondents acknowledged that most cases of ‘gender hostility’ would relate to offences targeted at women by men. However, they thought that the law should be ‘equitable’ and provide for the possibility of gender-related offending against men. These respondents believed that a statutory aggravation for gender hostility could do this.

6.14 Second, it was also relatively common for respondents to query – and in some cases challenge – the use of the term ‘gender hostility’, arguing that (i) ‘gender’ is not a term which could be defined in law; (ii) gender is a social construct, open to interpretation, and may change during a person’s lifetime; and (iii) any statutory aggravation based on ‘gender hostility’ would be impractical to enforce. (Note that many of these same points were also made by those who answered ‘no’ and ‘unsure’ to Question 7.) These respondents suggested instead that statutory aggravations should reflect the protected characteristics defined in the Equality Act 2010, and that the proposed statutory aggravation should therefore be based on ‘sex’, not gender. Some respondents (including some of the public sector violence against women partnerships) stated that they supported this proposal, but wanted the definition to be changed to refer to hostility based on ‘sex’ rather than ‘gender’. Occasionally, respondents noted that this change would also provide protection to male victims of sex-related hostility.

6.15 Less often, respondents answering ‘yes’ to Question 7 expressed support for: (i) a statutory aggravation based either on gender or sex; (ii) a focus on ‘gender’ which would reflect the Equally Safe definition of ‘gender-based violence’; or (iii) the creation of a protected characteristic of ‘gender’.

Views opposed to a statutory aggravation for gender hostility

6.16 There were a range of different perspectives expressed by those who answered ‘no’ to Question 7. These addressed the following:

• A focus on women ONLY versus a focus on women AND men: Some respondents disagreed with a statutory aggravation based on ‘gender hostility’ because, in their view, it ignored (or was inconsistent with) the ‘overwhelming evidence’ that gender-based harassment and hate is targeted at women by men. This group argued that, by focusing on ‘gender hostility’ (both misandry and misogyny), rather than ‘misogyny’, Option A fails to name the problem that the legislative response is meant to address. It also fails to recognise that violence against women and girls is a human rights violation rooted in historical inequality. Some in this group were concerned that a statutory aggravation for ‘gender hostility’ would lead to vexatious complaints about women by men and would further entrench indifference in society to incidents of misogyny. There was also opposition to the idea of transgender women (specifically, individuals who are biological males) receiving the same protections as women and girls under any new legislation intended to address misogyny – particularly since there is already protection for transgender identity in existing hate crime legislation.^[8] These views were expressed mainly by third sector organisations, including women’s organisations, and some individual respondents. This group noted that the approach to create a statutory aggravation for gender hostility was not supported by organisations with expertise in violence against women and girls. Less often, respondents argued that any new legislation that protects women should also provide the same protection to men. Among those who answered ‘no’ to Question 7, this view was most often expressed by individuals.
• ‘Gender’ versus ‘sex’: Some respondents (including some faith organisations, some public sector / partnership bodies, and some individuals) said they did not support a statutory aggravation for gender hostility because the aggravation should be based on ‘sex’ not ‘gender’. Thus, these respondents expressed similar views to some of those who answered ‘yes’ to this question (see paragraph 6.14).   
• ‘Hostility’ versus ‘malice and ill will’: Some respondents objected to the use of the term ‘hostility’, arguing that it ‘set the threshold too low’ for defining a criminal offence. There were concerns among this group that gender hostility could be equated with ‘unfriendliness’ or ‘disagreement’ or that an offence based on this concept could stifle public debate on the subject of gender. These respondents called for the definition of the offence to include the concept of ‘malice and ill will’ which they thought would allow for easier implementation in practice. This view was expressed by some faith organisations, some academic organisations, and some individual respondents (see also Chapter 4).
• Concerns about freedom of speech: Related to the point above, there was a more general concern expressed by some individuals that ‘hate crime’ laws had the effect of stifling public debate (see also Chapters 3 and 4).

Other issues and concerns raised by respondents

6.17 Irrespective of whether respondents answered ‘yes’, ‘no’ or ‘unsure’ to Question 7, they occasionally raised other related issues and concerns in addition to those discussed above. These included the following:

• Legislation to address gender-related offending should recognise links to disability (including learning disability) as disabled women are twice as likely to experience gender-based violence than non-disabled women.
• Any new legislation must be accompanied by the development of accessible, child- and young person-friendly reporting mechanisms.
• The legislation needs to be clearly defined to complement other legislation which addresses related issues, including domestic violence.

6.18 Finally, some said they found it difficult to comment on Option A without a clearer definition of what was meant by ‘gender hostility’.

6.19 Some respondents also pointed to possible unintended consequences of a statutory aggravation for gender hostility. For example, it was noted that:

• Police statistics indicate that children and young people are disproportionately the perpetrators of identity-based bullying and ‘hate’ behaviour. It was suggested that there was a need to consider if this disproportionality would also arise in relation to gender hostility, and if so, what the implications would be for public policy relating to children and young people.
• Since every person has a ‘gender’ of some type, a statutory aggravation of ‘gender hostility’ would, it was suggested, result in nearly everyone (apart from non-binary people) being covered under hate crime legislation. Some respondents reiterated that this approach would trivialise the seriousness of misogynistic violence and harassment; others suggested that this was an argument for dispensing with statutory aggravations altogether, and focusing criminal legislation on acts of violence and abuse instead.

Option B: A standalone offence for misogynistic harassment (Q8)

6.20 Option B would involve developing a standalone offence relating to misogynistic harassment. Respondents in favour of this option were asked to provide examples of the types of behaviour that could be captured by this offence.

6.21 Table 6.2 below shows that a majority of respondents overall (58%) did not agree that a standalone offence should be created for misogynistic harassment. Among the remaining respondents, a quarter (24%) said ‘yes’ and nearly a fifth (18%) said ‘unsure’. Individuals were more likely than organisations to say ‘no’ (61% vs 38%, respectively). Regarding organisations, there were mixed views among third sector organisations, public sector / partnership bodies, and other organisations.

Table 6.2: Q8 – Do you agree with Option B to develop a standalone offence for misogynistic harassment?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	N	%
Third sector organisations	9	29%	7	23%	15	48%	31	100%
Public sector / partnerships	6	26%	9	39%	8	35%	23	100%
Faith groups	–	0%	7	100%	–	0%	7	100%
Other organisations	3	38%	3	38%	2	25%	8	100%
Total organisations	18	26%	26	38%	25	36%	69	100%
Total individuals	108	23%	281	61%	73	16%	462	100%
Total (organisations and individuals)	126	24%	307	58%	98	18%	531	100%

Percentages may not total 100% due to rounding.

6.22 Altogether, 234 respondents (52 organisations and 182 individuals) commented at Question 8. The sections below present the views of those in favour of and those opposed to a standalone offence. Details of respondents’ suggestions about the kinds of behaviours that a standalone offence should address are covered at the end of the chapter.

Views in favour of a standalone offence of misogynistic harassment

6.23 Respondents in favour of a standalone offence of misogynistic harassment generally made the point that this option was favoured by organisations with specialist expertise in this area. Furthermore, these respondents (mainly organisations) stated that they supported the position of those organisations and thought the Scottish Government should work closely with them in developing any legislative response to misogyny. (Organisational respondents who ticked ‘unsure’ often expressed similar views, saying that they were not in a position to comment on this issue, but thought that the Scottish Government should work closely with expert organisations in developing its response.)

6.24 This group made several points relating to the scale, pervasiveness and nature of the problem of misogyny:

• Misogynistic harassment is endemic in society and it affects every aspect of women’s lives – ‘constraining what they do, say and wear’.
• Misogynistic harassment is different to other forms of hate crime and can take many different forms – including ‘acts or omissions intended or likely to cause death, or physical, sexual, psychological or economic harm’ (e.g. social exclusion, discrimination, hostility, sexual objectification, etc.).
• Although sexual harassment in the workplace is illegal, similar behaviour is largely tolerated in public spaces, online, and in educational settings.
• There is currently a legislative gap relating to stirring up of hatred against women, unless the perpetrator makes threats of rape directed at a specific individual.

6.25 These respondents argued that a standalone offence would provide a better and more appropriately targeted remedy than the creation of a statutory aggravation.

6.26 Some respondents also highlighted what they perceived to be a lack of capacity among police and prosecutors in recognising and responding appropriately to crimes motivated by gender-based prejudice; and they thought the creation of a standalone offence would help to address this. This group also considered that the creation of a standalone offence was more consistent with the Scottish Government’s commitment to implement the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

6.27 Respondents in favour of establishing a standalone offence often commented on aspects of how this option could be taken forward. Specifically, they suggested:

• A participatory approach should be used in developing the legislation (along similar lines to that taken in relation to new legislation on domestic abuse).
• The legislation should incorporate a comprehensive understanding of gender hierarchy. It should also address (i) the stirring up of hatred and (ii) online harassment / abuse.
• A ‘mapping exercise’ should be undertaken to ascertain the extent to which women’s experiences of online harassment are covered by existing offences.
• Any legislative response to misogynistic hate crime should not conflict with other (existing) hate crime legislation – thus ensuring that sentencing practices are consistent and appropriately address the experiences of individuals with multiple protected characteristics – e.g. disabled women, black women, etc.

6.28 Occasionally, respondents in this group gave reasons in addition to those mentioned above (see paragraph 6.16) for not favouring the creation of a statutory aggravation. Some suggested that it would be difficult to prove ‘hatred’ as a motivating factor where the issue was more related to a power imbalance between the perpetrator and victim. Others simply said that they did not think a statutory aggravation model would be effective but did not provide further explanation for this view.

Views opposed to a standalone offence of misogynistic harassment

6.29 There were different views expressed by organisations and individuals who answered ‘no’ to Question 9. Organisational respondents (including some who answered ‘unsure’) were generally supportive of a legislative response to tackle prejudice, discrimination and violence against women, but they agreed with Lord Bracadale’s recommendation that the development of a statutory aggravation was the clearest and most effective way to proceed. This group thought the creation of a standalone offence would cause confusion. Those who highlighted this issue were concerned that a separate (standalone) offence for misogynistic harassment would:

• Overlap considerably with other existing offences
• Undermine the collection of reliable data
• Risk portraying all women as potential victims and all men as potential perpetrators
• Potentially alienate transgender women.

6.30 Some organisations argued that the term ‘misogyny’ was too broad to be of practical use for the purposes of establishing a criminal offence, since it included both criminal and non-criminal behaviour. This group suggested that further work would be required to develop a legal definition of misogyny. (Note that this point was often echoed by respondents who answered ‘unsure’ to Question 9.) Other respondents were concerned that there was a risk of confusion in relation to crimes that appeared to be related to misogyny, but which (in the view of respondents) were not (e.g. female genital mutilation).

6.31 Among individuals who were opposed to a standalone offence of misogynistic harassment, the most common view was that all victims of crime should be treated equally under the law – and, therefore, there should not be additional protection for women. Those who expressed this view often went on to express more general opposition to hate crime legislation, or any criminal legislation based on the personal characteristics of the victim. Some within this group expressed concern that legislation to address misogyny would result in law enforcement resources being ‘diverted from serious criminal activities’.

6.32 Other relatively common reasons given by respondents for opposing a standalone offence of misogynistic harassment were as follows:

• It would not capture any offence which would not be captured by other existing offences (potentially with an aggravation of ‘gender hostility’ attached). This view was expressed mainly by individuals, but also some organisations.
• As far as possible, all hate crime should be treated within the criminal justice system in a consistent way. Related to this point was the view that there should be an ‘equality of protection’ for all individuals with protected characteristics. Some of those who raised this issue were concerned that the creation of a new standalone offence appeared to be giving additional protection to one group of individuals with a protected characteristic compared to others who also had protected characteristics. This view was expressed by some organisations.
• Although misogyny is an undesirable quality, it is not a crime, and should not be criminalised. This view was expressed mainly by individuals.

6.33 Among those organisations who answered ‘no’ to Question 9, some suggested that there may be a case for introducing a standalone offence ‘at some stage’ in the future, to cover all behaviour relating to violence against women. There were calls among this group to proceed with Option A as a priority, while Option B was explored further. However, there was also a view that it would be important to establish a strong evidence base before creating a standalone offence.

Option C: Building on Equally Safe (Q9)

6.34 Question 9 invited views about whether the Scottish Government’s response to gender-based hate crime should involve building on the Equally Safe strategy – the Scottish Government and COSLA’s joint strategy for preventing and eradicating violence against women and girls. This would be a non-legislative approach which, the consultation paper explained, could be taken forward in its own right, or in tandem with one or both of the legislative options (i.e. Option A and Option B).

6.35 Table 6.3 below shows that there were mixed views among respondents about whether they agreed with the idea of building on the Equally Safe strategy to tackle misogyny, with 25% in favour, 45% opposed and 30% unsure. However, organisational respondents were more likely than individuals to say ‘yes’ in answer to Question 9 (66% vs 19%, respectively). Faith groups (5 out of 6 respondents) and public sector / partnership bodies (17 out of 23 respondents) were particularly likely to support building on Equally Safe. 

Table 6.3: Q9 – Do you agree with Option C of building on Equally Safe to tackle misogyny (this would be a non-legislative approach)?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	N	%
Third sector organisations	16	59%	2	7%	9	33%	27	100%
Public sector / partnerships	17	74%	2	9%	4	17%	23	100%
Faith groups	5	83%	1	17%	–	0%	6	100%
Other organisations	5	56%	3	33%	1	11%	9	100%
Total organisations	43	66%	8	12%	14	22%	65	100%
Total individuals	82	19%	218	50%	133	31%	433	100%
Total (organisations and individuals)	125	25%	226	45%	147	30%	498	100%

Percentages may not total 100% due to rounding.

6.36 Altogether, 197 respondents (55 organisations and 142 individuals) commented at Question 9. Note that individuals who answered ‘unsure’ to Question 9 often stated that they did not know what Equally Safe was.

Views in favour of building on Equally Safe

6.37 Respondents who indicated support for Option C generally argued that any legislative approach to tackling misogynistic harassment should be complemented by efforts to change attitudes in society towards women and girls. Thus, these respondents did not think that Option C should be pursued in lieu of legislation, but rather alongside it. Indeed, some organisations (including public sector organisations) specifically stated that a non-legislative approach alone was unlikely to be effective, and that a holistic approach – which includes legislation, education and prevention – was more likely to be successful than legislation alone. Some respondents endorsed the Equally Safe strategy and suggested that Option C should be taken forward regardless of whether a statutory aggravation or standalone offence is created. This was the main view expressed by organisations. Some individuals also expressed this view, but this was not the predominant view among individuals. (See paragraph 6.41 and 6.42 below.)

6.38 Some organisations offered specific suggestions about how to build on Equally Safe. Examples included:

• Gathering more comprehensive data on the experiences of women and girls in relation to (i) online misogyny and (ii) misogynistic harassment in educational settings, the workplace and in public places. The point was made that a current lack of reliable data makes it difficult to understand the problem and create appropriately targeted solutions.
• Ensuring that there is a better multi-agency strategic and operational approach to tackling hate crime – one which is clearly linked to community planning structures and is underpinned by guidance for partners.
• Working with a wider range of stakeholders in taking forward the strategy – in particular, respondents called for greater involvement of non-public sector / non-statutory organisations such as those providing social care. It was noted that the social care sector is a large employer, and that issues of gender segregation in society impact upon the delivery of social care.
• Pursuing preventative approaches to changing attitudes and cultures, targeting children and young people; communities; workplaces; educational institutions (schools, colleges and universities); and online and print media.
• Undertaking better engagement with women with learning disabilities in relation to RSHP (relationships, sexual health and parenthood) education, to give them the knowledge, skills and values they need to make informed and positive choices about forming relationships, and to understand issues of consent.

6.39 Organisational respondents suggested that any efforts to build on Equally Safe should be undertaken through a ‘co-production’ approach with women’s organisations and should be informed by the views of children and young people.

6.40 Some individuals who answered ‘yes’ to Question 9 echoed the views of organisations – i.e. that a non-legislative approach to misogynistic hate crime should be taken forward in tandem with legislation. However, individuals were more likely to say that they preferred Option C because they thought a non-legislative approach was preferable to legislation. (This view was only rarely expressed by organisational respondents.) Individuals argued that a non-legislative approach was (i) more likely to be effective in changing attitudes than criminalisation and (ii) less likely to be ‘open to abuse’. This group of respondents called for education and prevention to be prioritised, and they suggested that the criminal law should be reserved for cases of assault or breach of the peace only.

Views opposed to building on Equally Safe

6.41 Among those who answered ‘no’ to Question 9, the most common view (expressed by both organisations and individuals) was that a non-legislative approach alone would not address the problem of misogyny in Scotland. Thus, these respondents essentially agreed with the views of organisations who answered ‘yes’ to this question. 

6.42 Among individuals who answered ‘no’ to Question 9, there were two other recurring views: (i) that any policy response must give equal protection to men and women; and (ii) that misogyny should not be criminalised to avoid infringing on freedom of expression. Very occasionally, individuals in this group suggested that building on Equally Safe was unnecessary as women already ‘have far more rights and privileges than men’.

Option D: Taking forward all options (A–C) (Q10)

6.43 Table 6.4 shows that around two-thirds of respondents (64%) overall were not in favour of taking forward all three of the previously discussed options. However, views were more mixed among organisations than among individuals. Organisations were more likely than individuals to answer ‘yes’ (25% vs 15%, respectively) and ‘unsure’ (28% vs 18%, respectively). There were mixed views among third sector organisations and public sector / partnership bodies, whereas all six faith groups that answered this question were unanimously not in favour of taking forward all three options.

Table 6.4: Q10 – Do you agree with Option D of taking forward all of the identified options?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	N	%
Third sector organisations	7	23%	12	40%	11	37%	30	100%
Public sector / partnerships	7	30%	10	43%	6	26%	23	100%
Faith groups	–	0%	6	100%	–	0%	6	100%
Other organisations	3	30%	5	50%	2	20%	10	100%
Total organisations	17	25%	33	48%	19	28%	69	100%
Total individuals	66	15%	295	67%	79	18%	440	100%
Total (organisations and individuals)	83	16%	328	64%	98	19%	509	100%

Percentages may not total 100% due to rounding.

6.44 In total, 168 respondents (50 organisations and 118 individuals) commented at Question 10. In general, the comments made at Question 10 repeated points already discussed above in relation to Questions 7, 8 and 9. These are not repeated here. Instead, the discussion below focuses mainly on the reasons people gave for preferring an approach involving all three options. As will be seen below (paragraph 6.48 and 6.49), those who indicated opposition to Option D generally did so because they preferred an approach focused on one or two of the options, but not all three.

Views in favour of taking forward all options

6.45 Respondents who answered ‘yes’ to Question 10 did not always give specific reasons for preferring an approach involving all three identified options (a statutory aggravation based on gender, a standalone offence relating to misogynistic harassment, and building on the Equally Safe strategy). Some simply stated that ‘this is the best option’ without providing further detail, or they suggested that ‘there’s no reason why all three cannot be taken forward’.

6.46 Among those who did give a reason (both organisations and individuals), several points were made:

• An approach involving all three options would ensure a comprehensive response to misogyny, ensuring that all aspects of misogynistic behaviour are covered. It would also provide the clearest, strongest message to the general public that violence against (and harassment of) women and girls is not acceptable.
• Option A is necessary to bring gender-related hate crime in line with other hate crime – to provide the same type of protection to women and girls as is available to people with other protected characteristics. A statutory aggravation would be able to deal with any offences with a misogynistic element. It would also allow appropriate updating if changes are made to (the whole body of) hate crime legislation in the future. 
• Option B is also necessary to recognise the complexity of the issue and its basis in inequality. The systemic nature of misogynistic behaviour requires this stronger response. A standalone offence would potentially be more effective in ensuring that such crimes are treated with appropriate seriousness within the justice system.
• Option C is necessary because legislation on its own will not fully address the problem.

6.47 Among those who answered ‘yes’ to Question 10, it was also suggested that a statutory aggravation could be established relatively quickly, but that additional time would be needed to develop a standalone offence for misogynistic harassment. Those who raised this issue emphasised that implementation of any of the three options should not be delayed until all the options could be implemented. The view was that Options A and C should proceed, while work continued on the development of Option B. There was also a view that the implementation of Option A must not weaken the development of Option B.

Views opposed to taking forward all options

6.48 Among organisations, those who answered ‘no’ to Question 10 generally did so because they preferred an approach focused either on Options A and C, or on Options B and C, but not all three options.

6.49 Among individuals, there were two main perspectives. First, some individuals were generally supportive of a legislative (and in some cases a non-legislative) approach to tackling gender-based hate, but they answered ‘no’ for reasons similar to those given by organisations (i.e. that they preferred one or two of the options, but not all three).

6.50 The second perspective was expressed by other individuals who did not specifically explain why they opposed Option D. These respondents simply repeated points they made at Questions 7, 8 and 9 – (i) that all hate crime legislation should be repealed because it infringes on the right to freedom of expression, (ii) that all victims of crime should be equally protected (whether they are male or female), and (iii) that any proposed legislation to provide protection against misogynistic harassment would be ‘unworkable’.

Other issues raised in relation to taking forward all options

6.51 Occasionally, respondents raised other issues in their comments at Question 10.

6.52 Some reiterated that any new legislation should specifically aim to protect those groups most at risk (i.e. women and girls). These respondents suggested that any protection in law offered to groups not deemed to be affected by misogynistic behaviour was, essentially, ‘law for law’s sake’. This would lead to confusion among members of the public, the police and courts, and it could have the unintended consequence of increasing the existing inequality between men and women.

6.53 Some noted that protection is already provided to transgender / gender-fluid people through existing legislation, and any changes to that legislation should be specific to the needs of transgender / gender-fluid people. There was a view that any attempt to address the needs of women and girls together with those of the transgender community would risk confusion and undermine accurate monitoring.

6.54 Some organisations commented that they had no objection to the creation of new offences for misogyny / gender hostility so long as this does not result in the weakening of existing protections against racial abuse.

Behaviours that could be covered by a standalone offence

6.55 Respondents who answered ‘yes’ to Question 8 and / or Question 10 were asked to provide further details of the types of behaviour that could be captured by a standalone offence relating to misogynistic harassment. These respondents (and some who answered ‘unsure’) suggested a wide range of specific behaviours that could be covered by a new standalone offence.

6.56 Suggestions could generally be categorised into two types: (i) those relating to face-to-face behaviour and (ii) those relating to online behaviour – although in some cases there was an overlap between the two. The following list provides an indication of the kinds of face-to-face behaviour respondents mentioned. Note that some of these behaviours (including rape) are already criminal offences and able to be prosecuted under other existing legislation.

• Any abusive behaviour – or language – that is uniquely experienced by women and girls (respondents gave numerous examples of specific terms) including in circumstances where, for example, a woman (i) has politely declined a ‘come on’, or to otherwise engage with a man or group of men or (ii) is breastfeeding a baby in a public place
• Harassment of women in public places (including on the street)
• Rape (specifically rape of women and girls, as opposed to men and boys)
• Grooming and the targeting of vulnerable women and girls for sexual exploitation / sex trafficking
• Honour killings
• Female genital mutilation (note, however, the alternative view mentioned above that FGM is not a gender-based hate crime)
• Unwanted touching (including groping, kissing or hugging without consent)
• Cat-calling / street harassment by strangers / following a woman in a car
• Stalking
• Flashing
• Up-skirting
• Blaming female robbery or rape victims
• Defacing public property with graffiti that is derogatory to women.

6.57 Some respondents suggested that misogynistic behaviour can sometimes involve ‘fairly low-level’ behaviours which take place over a sustained period of time – similar to bullying and domestic abuse. Occasionally, respondents (mainly third sector organisations) suggested that domestic violence should be considered a hate crime.

6.58 Examples of online misogynistic behaviour included:

• Producing, selling, buying or sharing violent or degrading pornography
• Revenge porn – the posting of intimate pictures on the internet for the purposes of debasing or humiliating a woman
• Taking videos of a woman and posting them online without consent
• The posting of ‘rape fantasies’
• Sending unsolicited photos of male genitals or images meant to cause alarm
• The incitement to rape, sexual assault, or violence against women and girls
• Threats of rape towards an individual or someone close to them (such as their mother or daughter)
• Death threats.

6.59 There were also suggestions – made by both organisational and individual respondents – that certain types of behaviour commonly seen in workplaces and educational establishments should be covered by the offence. These suggestions included the following:

• Refusal to ensure gender equality in the workplace
• Workplace harassment and bullying (where there is an ongoing pattern of behaviour which may incorporate language, workload and unequal pay)
• Coercive behaviour
• Excluding women from decision-making processes in the workplace
• Controlling the clothes that women are permitted to wear at work
• Not providing facilities for privacy (separate toilets or changing areas in schools or workplaces)
• Over-explaining to hold a woman’s time and attention
• Taking credit for a woman’s work
• Work-related online (and offline) sexual harassment.

6.60 The point was made that such behaviours are often targeted at women on temporary or short-term contracts by men in senior managerial positions.

6.61 Some respondents offered more general views about what should constitute misogynistic harassment (rather than identifying specific types of behaviours). Examples included: (i) any behaviour that demeans or threatens an individual girl or woman; (ii) any sexual offence intended to ‘punish’ a woman; (iii) discrimination against women; (iv) not treating women as equal partners; (v) objectifying women; or (vi) any aggressive behaviour that affects a woman’s ability to conduct her life. 

6.62 There was disagreement among respondents about whether and how transgender women should be protected under a standalone offence relating to misogynistic harassment. Some specifically clarified that, in their view, the focus of the offence should be on forms of harassment, threats and violence perpetrated by ‘biological men’ on ‘biological women’. Others said that the law should protect people who are perceived by the perpetrator as ‘feminine’ (including non-binary and gender-non-conforming people).

6.63 However, other respondents simply suggested that further detailed consideration (and consultation with women and girls) would be needed to determine what should and should not be covered by the offence – particularly given the likely evidential requirements of a standalone offence. A concern was also expressed that it would be counter-productive for legislation to be too specific about the types of behaviour covered, as there are potentially unlimited ways of expressing misogyny.

6.64 Very occasionally, respondents mentioned examples of behaviours which should not be classified as misogynistic harassment. In particular, there was a concern that men may be criminalised for behaviour carried out ‘under pressure’ or through ignorance (due to upbringing). It was suggested that any legislation should be able to differentiate between low-level misogynistic behaviour, and more serious offences, and that there should be a proportionate response to sentencing.