Ending conversion practices in Scotland: consultation

Part 11: Conversion Practices as an Aggravating Factor for Existing Offences

151. There are forms of conversion practices that can be prosecuted under existing criminal offences. This includes situations where the conduct has a physical element, such as assault, including sexual assault, or forced marriage.

152. In addition to creating two new criminal offences, we therefore propose that conversion practices are made an aggravating factor for existing offences. This would give flexibility to the Crown Office and Procurator Fiscal Service (COPFS) in deciding how best to prosecute a situation of conversion practices, and is particularly important where conduct may not reach the threshold to be captured by the course of behaviour offence, but meets the requirements of an existing criminal offence.

153. The law relating to hate crime in Scotland, currently contained in the Offences (Aggravation by Prejudice) (Scotland) Act 2009 allows for criminal offences to be aggravated by prejudice on the grounds of sexual orientation or transgender identity. This will be repealed and replaced by the Hate Crime and Public Order (Scotland) Act 2021 when it comes into force in 2024 and which provides for a statutory aggravation on similar grounds.

154. While hate crime legislation may capture some conversion practices, the laws require the offender to show or be motivated by malice or ill-will based on the sexual orientation or transgender identity of the victim. The nature of conversion practices means that, in many cases, the offender does not bear malice or ill-will towards the specific victim, but is motivated by helping them. In certain cases, there may be an underlying malice or ill-will towards people of that sexual orientation or transgender identity. However, this is still unlikely to capture all situations.

155. An aggravation ‘attaches’ to an offence, in certain circumstances, based on the conduct or motivation of the offender. In order for this to be possible there needs to be an underlying criminal offence such as assault. An aggravating factor indicates a more serious degree of harm than if the same crime was committed without that factor being present. In this case, an aggravating factor of an intention to change or suppress the sexual orientation or gender identity of the victim would be an explicit recognition of the harm that is caused when conduct is so motivated. It would apply to any other criminal offence, except the two new offences created by this legislation.

156. Creating a new statutory aggravation for conversion practices would require the courts to explicitly recognise and note the intention of the perpetrator. It would also require courts to take the aggravations into account when determining sentence, stating the extent and reasons why the sentence is greater as a result of the aggravating factor.

157. An additional advantage of doing so would be that it will allow the collection of data on criminal acts that have been undertaken with the intention of conversion practices, providing a more detailed picture of the extent of conversion practices in Scotland. The dual approach of creating a new criminal offence, and a statutory aggravating factor relating to conversion practices, would provide COPFS with a range of prosecutorial tools, and enable prosecutorial flexibility in approaching cases of conversion practices. This approach is similar to that taken in relation to domestic abuse where there is a specific course of behaviour offence, as well as a statutory aggravation relating to abusive behaviour towards a partner or ex-partner to ensure there are no gaps within the law.

158. The statutory aggravation would attach to situations where the underlying offence was undertaken with an intention that the victim’s sexual orientation or gender identity would be changed or suppressed. In line with the standard approach in Scots law to statutory aggravations, evidence from a single source would be sufficient to prove the aggravation. This would mean that the victim could provide appropriate evidence that the offender was motivated by conversion practices without the need to support that evidence with another source.

159. Draft section – aggravation of offence involving conversion practice

9. Aggravation of offence involving conversion practice

(1) This subsection applies where it is—

(a) libelled in an indictment or specified in a complaint that an offence committed by a person (“person A”) in relation to another person (“person B”) is aggravated by being committed with the intention mentioned in subsection (2), and

(b) proved that the offence is so aggravated.

(2) The intention is that a sexual orientation or gender identity which (at the time the offence is committed)—

(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.

(3) It does not matter for the purposes of subsection (1)(a) whether person A’s commission of the offence changed, or was capable of changing, person B’s sexual orientation or gender identity.

(4) Evidence from a single source is sufficient to prove that an offence is aggravated as mentioned in subsection (1)(a).

(5) Where subsection (1) applies, the court must—

(a) state on conviction that the offence is aggravated as mentioned in subsection (1)(a),

(b) record the conviction in a way that shows the offence is so aggravated,

(c) take the aggravation into account in determining the appropriate sentence, and

(d) state—

(i) where the sentence imposed in respect of the offence is different from that which the court would have imposed if the offence were not so aggravated, the extent of and the reasons for that difference, or

(ii) otherwise, the reasons for there being no such difference.

(6) The reference in subsection (1)(a) to an offence does not include reference to an offence under section 1 or 6.

24. What are your views on the proposal that conversion practices should be an aggravating factor for existing offences?

Support

Do not support

Don’t know

25. Please explain your answer to Question 24.