Ending conversion practices in Scotland: consultation

Part 10: Removing a Person from Scotland for Conversion Practices

143. Some victims of conversion practices may be taken out of Scotland for these purposes with evidence of such actions detailed in several sources including Conversion Therapy: An evidence assessment and qualitative study commissioned by the UK Government and There was nothing to fix: LGBT+ survivors’ experiences of conversion practices by Galop. We believe that legislation should address this harm. Similar concerns have been addressed in legislation relating to forced marriage and female genital mutilation.

144. We propose that it should be a criminal offence to cause someone who is habitually resident in Scotland to leave Scotland with the intention that they will undergo conversion practices. We propose that the legislation include illustrative examples of things that are likely to demonstrate that a person caused another person to leave Scotland. For example, if they travelled with them, paid all or most of their travel costs or made their travel arrangements. The act of causing someone to leave Scotland would need to be done with the intention that the person was to undergo conversion practices. This would include a person being taken to another part of the UK, or abroad.

145. We do not propose that the legislation should criminalise a conversion practice that takes place outside of Scotland, whether elsewhere in the UK or abroad. So, it would not be possible to prosecute a person in Scotland for a conversion practice that took place outside of Scotland. There would be significant operational difficulties in doing so, particularly in securing the relevant evidence to a high-enough standard. It may also require conversion practices to be a criminal offence in the country where it was carried out.

146. We believe banning the removal of a person from Scotland for conversion will sufficiently address the risk to those resident in Scotland. In this situation, the offence will be the removal of the person from Scotland with the intended purpose of them being subjected to conversion practices. The acts intended to be undertaken while outside of Scotland and intent requirements in this context are proposed to be equivalent to the offence of engaging in conversion practices outlined above, with the exception of the harm requirement.

147. It would not matter whether the conversion practice was carried out, so long as the person was taken out of Scotland for the purposes of subjecting them to conversion practices. It would not matter whether the change or suppression of their sexual orientation or gender identity is achieved or is, in fact, possible. This offence therefore, does not require any proof of harm having been caused.

148. As with the offence of engaging in conversion practices, we propose that this offence is subject to the defence outlined above that the behaviour was reasonable in the circumstances. This acts as a safeguard because there is no requirement within this offence for the intended conversion act or course of behaviour to actually take place or for harm to have occurred.

149. We propose the following sentencing range for prosecutions under this offence:

• on conviction under summary procedure: imprisonment for a term not exceeding 12 months, or a fine, or both
• on conviction on indictment (solemn procedure): imprisonment for a term not exceeding 3 years, or a fine, or both

150. Draft section – offence of taking person outside Scotland for conversion practice

6. Offence of taking person outside Scotland for conversion practice

(1) A person (“person A”) commits an offence in relation to another person (“person B”) if—

(a) person B is habitually resident in Scotland,

(b) person A causes person B to leave Scotland, and

(c) person A intends—

(i) that, while person B is outside Scotland, behaviour of a type mentioned in subsection (2) will be engaged in (whether by person A or another person) in relation to person B, and

(ii) that, by the behaviour being engaged in, the outcome mentioned in subsection (3) will be secured.

(2) The behaviour is—

(a) behaviour (whether a course of behaviour or behaviour on a single occasion) which constitutes (or is part of) provision of a service in relation to person B, or

(b) behaviour which is coercive of person B.

(3) The outcome is that a sexual orientation or gender identity which (at the time person B leaves Scotland)—

(a) person B considers is (or may be) person B’s sexual orientation or gender identity, or

(b) person A presumes to be person B’s sexual orientation or gender identity,

will be changed or suppressed.

7. Further provision in relation to offence of taking person outside Scotland for conversion practice

(1) Subsections (2) and (3) contain examples and other material to assist in the interpretation of section 6.

(2) Examples of behaviour which may indicate that person A caused person B to leave Scotland include—

(a) person A accompanying person B on a journey outside Scotland,

(b) person A—

(i) paying all, or a substantial portion of, the costs incurred by person B in leaving and being outside Scotland (for example, person B’s travel or accommodation costs), or

(ii) making arrangements in relation to person B’s leaving and being outside Scotland (for example, person A booking travel tickets or accommodation for person B).

(3) It does not matter for the purposes of section 6 whether the behaviour which person A intends will be engaged in in relation to person B while person B is outside Scotland is in fact engaged in.

8. Defence of reasonableness

(1) In proceedings for an offence under section 6, it is a defence for person A to show that person A’s behaviour was, in the particular circumstances, reasonable.

(2) For the purposes of subsection (1), it is shown that person A’s behaviour was, in the particular circumstances, reasonable if—

(a) evidence adduced is enough to raise an issue as to whether that is the case, and

(b) the prosecution does not prove beyond reasonable doubt that it is not the case.

20. What are your views on it being a criminal offence to take a person out of Scotland for the purpose of subjecting them to conversion practices?

Support

Do not support

Don’t know

21. Please give your reasons for your answer to Question 20.

22. What are your views on the proposed penalties for taking a person outside of Scotland for the purposes of conversion practices?

Support

Do not support

Don’t know

23. Please explain your answer to Question 22.