Ending conversion practices in Scotland: consultation

Part 9: Criminal Offences - Additional Considerations

Defence of consent in a criminal offence relating to conversion practices

129. Evidence suggests that many people who undergo conversion practices agree in some way to do so. For example, they may agree to attend a programme of therapy. However, those people who apparently willingly engage in, or actively seek out, conversion practices are often driven by external pressures and coercions, such as imbalanced power dynamics or being under the guidance of powerful people in their life who are in a position of trust or authority, limiting their autonomy.

130. The EHRCJ Committee in its report was “anxious to ensure that, in a similar way to legislation that exists to protect victims of domestic abuse or female genital mutilation, the definition makes it clear that consent to such practices can never be informed and should not be available as a defence to those undertaking conversion practices”.

131. Because there is often some form of agreement or consent to conversion practices, we have considered whether – in relation to the proposed criminal offence – there should be a defence of consent, where an adult who is not lacking in capacity or otherwise vulnerable, gives informed consent to the conversion practices.

132. Considering the available information and evidence, we believe that it is extremely difficult to ensure that consent in these circumstances is fully informed. Many people have reported consenting to conversion practices without a full awareness of:

• the fact that change is not, in fact, possible
• what the conversion practices will entail
• the likelihood that this will cause them serious lifelong harm

133. There may also be scenarios in which a victim is subject to an act which they do not realise at the time is a conversion practice. For example, where an individual has actively sought out support to explore or navigate struggles with their sexual orientation or gender identity – such as by undertaking therapy, or consulting a spiritual adviser.

134. For all of the reasons set out above, we do not propose to include a defence of consent in relation to the new criminal offences.

135. We believe that the requirements of our proposed criminal offences will ensure that non-harmful support and conversations provided to people who may feel uncomfortable with their sexual orientation or gender identity will not be criminalised. We believe that it is not possible to consent to actions that cause harm and the criminal offence requirement that the act has caused harm makes a defence of consent inappropriate. In practice, it will be difficult to prove that harm has been caused in situations where the person has given consent, unless they have later changed their mind.

136. We consider that our current proposals ensure personal freedoms and autonomy remain protected, given that fully informed consent is extremely difficult, or in fact impossible, to achieve; harmful conduct cannot be consented to; and that non-harmful support remains unaffected. We have proposed a defence of reasonableness to the offences which may be relied on in certain situations where an individual asks for assistance. We would welcome your views on the inclusion of a defence of informed consent within the legislation.

137. Including a defence of informed consent will require other changes to be made to the proposals contained in this consultation. In particular, it will be necessary to reconsider the requirement to prove that the act has resulted in physical or psychological harm, as we do not believe that it should be possible to consent to a harmful practice.

17. Do you agree that there should be no defence of consent for conversion practices?

Yes

No

Don’t know

18. Please give reasons for your answer to Question 17.

19. Do you have any other comments regarding the criminal offence as set out in Parts 8 and 9?

The promotion and advertising of conversion practices

138. Both the EHRCJ Committee and the EAG recommended that any ban on conversion practices include a ban on advertising of such practices. The EAG has specifically called for offering, promoting, advertising, or referring conversion practices to be criminalised.

139. There is a global precedent for the criminalisation of advertising conversion practices. A number of countries and jurisdictions, including Victoria (Australia), Malta, and Canada, have included a criminal offence within their legislation. Other countries, such as New Zealand, have instead legislated for a civil response.

140. At present, adverts are regulated by Ofcom and the Advertising Standards Authority (ASA). The UK Government has also developed the Online Safety Act 2023. While there is no specific provision for conversion practices, taken together, these regulatory bodies and legislation regulate illegal and harmful content, as well as misleading and inaccurate information, across broadcast, non-broadcast (i.e. print, both physical and electronic), and online material. These are all matters which are reserved to the UK Government which means that the Scottish Government cannot change them or legislate in relation to them.

141. The Scottish Government believes that this does not sufficiently take account of the familial and community-based nature of many forms of conversion practices, and the more personal promotion – often word of mouth – which may take place in these environments. Therefore, we propose that civil protection orders may be capable of addressing the informal promotion and advertising of conversion practices depending on the particular circumstances. These orders are explained in more detail in Part 13.

142. In prosecutions where a victim has undergone conversion practices, the person who advertised or promoted those conversion practices may, depending on the particular circumstances, be found to have aided and abetted in the commission of the offence. This would require the person producing the advert/promotion to have prior knowledge of the situation they were exposing the victim to. In addition, we expect that the creation of a specific criminal offence relating to conversion practices will limit any promotion or advertising of it, because it is not permitted to advertise or promote something that is itself illegal.