Ending conversion practices in Scotland: consultation summary

Part 7: Offence of Engaging in Conversion Practice

Criminal Offence Overview

38. The key elements of the proposed new offence of engaging in conversion practices are:

• Intent: that the individual accused of carrying out conversion practices did so with the intention that the sexual orientation or gender identity of the victim would be changed or suppressed.
• Acts: that either the provision of a service or coercive course of behaviour, as defined by the relevant offences, took place.
• Victim: that the service or course of behaviour relates to a specific, identified individual.
• Harm: that the service, or course of behaviour, has caused the victim physical or psychological harm.
• Defence: the accused person has a defence if their conduct was reasonable in the circumstances.

Intent - mental element of the offences

39. Most criminal offences have a mental element which relates to what is in the mind of the perpetrator in undertaking a criminal act. For the offence of engaging in conversion practices, we propose that the relevant conduct must be undertaken with the intention that it will result in the change or suppression of the sexual orientation or gender identity of the person against whom it is directed.

Victim – in relation to a specific individual

40. Both the intention, and the criminal act undertaken to achieve that intention, must be in relation to a specific individual. The proposals in this legislation do not target hatred towards sexual orientations and gender identities more generally, e.g. statements that being gay is sinful, or that transgender identity does not exist.

The acts falling within the criminal offence

41. The criminal offence addresses two different forms of conversion practices.

The provision of a service

42. This form will address the provision of a service, with the intended outcome that a person’s sexual orientation or gender identity will be changed or suppressed.

43. This part of the offence seeks to address the situation where a conversion practice is undertaken by a person who claims to have a particular knowledge, skill or expertise and where the act is purported to be a method to effect a change or suppression. It is not focused on a specific setting, such as medical or healthcare settings. It will include acts that are pseudo-medical.

44. The legislation will include examples of things that will be considered to be a service in this context (where it is intended to change or suppress an individual’s sexual orientation or gender identity). This includes counselling or any form of talking therapy, coaching or instructing, and a purported treatment.

7. What are your views on the proposal that the offence will address the provision of a service?

Support

Do not support

Don’t know

8. Please give reasons for your answer to Question 7.

Coercive course of behaviour

45. This form will address conversion practices that take the form of a coercive course of behaviour, where one or more acts are performed in a repeated, continuous, or sustained way. The part of the offence seeks to address to the form of conversion practices that the evidence tells us is most common – “informal” actions conducted over a period of time.

46. In order to fall within the offence, there is a minimum requirement that the behaviour happens on at least two occasions, the course of behaviour as a whole will need to be coercive, and the other requirements of intent and harm will also need to be met.

47. The legislation will include examples of the types of behaviour that would be considered to be coercive in the context of conversion practices. This include acts that are controlling, threatening, and humiliating, intimidating, manipulative or pressuring.

48. The acts undertaken must be deliberate actions carried out against a person and a failure to do something, or an omission, would not fall within the offence.

9. What are your views on the proposal that the offence will address a coercive course of behaviour?

Support

Do not support

Don’t know

10. Please give reasons for your answer to Question 9.

Harm - requirement for harm

49. We intend for the criminal offence of engaging in conversion practices to address conduct which is sufficiently serious and harmful. We therefore propose that the offence will include a requirement that the act or course of behaviour has caused harm to the victim: either physical harm, psychological harm, or a combination of both. Psychological harm includes fear, alarm and distress.

50. Acts that do not cause harm to the victim will not be criminalised.

11. What are your views on the requirement that the conduct of the perpetrator must have caused the victim to suffer physical or psychological harm (Including fear, alarm or distress)?

Agree

Do not agree

Don’t know

12. Please give reasons for your answer to Question 11.

For the avoidance of doubt

51. We propose to include specific ‘avoidance of doubt’ provisions to be clear that some behaviour will not be carried out with the requisite intention and so are not included in the legislation. These include:

• healthcare or medical treatment provided by healthcare professionals in the course of their employment. This includes medical treatment provided in line with relevant ethical and legal rules and guidelines and medical treatment that aligns a person’s physical characteristics with their gender identity
• expressing an opinion or belief or engaging in conversations in a way that does not intend to direct a person towards a particular sexual orientation or gender identity

Defence of reasonableness

52. We propose that there will be a defence that the accused’s conduct was reasonable in the particular circumstances. This test is whether the accused’s behaviour was reasonably objective, meaning that it is not determinative that the accused person considers their behaviour was reasonable based on their own values.

53. We anticipate that this defence may be particularly important where the safety of the victim was at risk, and acts were carried out to protect them from imminent harm. For example, where someone is at immediate risk of suicide as a result of distress related to their sexual orientation or gender identity, is supported to find a short-term coping mechanism. It could also apply in situations where the specific day-to-day controls implemented by a parent were to prevent a child from engaging in illegal or dangerous behaviour.

13. Do you agree with the inclusion of a defence of reasonableness?

Agree

Do not agree

Don’t know

14. Please give reasons for your answer to Question 13.

Proposed penalty

54. We propose that offences relating to this offence will be able to be tried “both ways” in either summary or solemn procedure.

55. We propose the following sentencing range for convictions under this offence:

• on summary conviction: imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum (£10,000), or to both
• on conviction on indictment (solemn procedure): imprisonment for a term not exceeding 7 years, or to an unlimited fine, or both

15. Do you agree with the proposed penalties for the offence of engaging in conversion practices?

Agree

Do not agree

Don’t know

16. Please give reasons for your answer to Question 15.