Ending conversion practices in Scotland: consultation

Part 13: A New Civil Order Relating to Conversion Practices

Background

166. Evidence from survivors of conversion practices, as well as recommendations made by the EAG, suggest that there will be cases where the use of criminal law is not the most suitable course of action. There are many reasons why this might be the case. For example, the circumstances of the victim, the relationship between the accused and the victim, or a difficulty in meeting the standard of proof in the criminal courts. In addition, the criminal law provides a response to a crime which has already taken place, rather than enabling preventative action.

167. Anecdotal evidence from those with lived experience of conversion practices, and data from research, highlights that conversion practices often take place in religious, family, and community settings. As a result, victims may be reluctant to report those responsible to the police, or to give evidence during a criminal trial. This is especially true where the victim comes from a community that may already be unwilling to engage with the police or the criminal justice system.

168. In addition to the criminal law, we believe it is necessary to implement legislation which allows the civil courts to prevent instances of conversion practices from taking place and require protective and preventative actions.

The civil courts are courts that deal with matters that are not criminal, including family issues and civil protection orders.

169. A civil order provides an avenue for conversion practices to be addressed and prevented, including in situations where the Police and COPFS do not consider criminal measures to be appropriate. For example, where there is not enough evidence for a criminal prosecution, an order may nevertheless be able to protect someone who is at risk of harm.

170. Civil orders still require a formal legal process that provides sufficient protection for the person(s) to whom the order applies and some persons may be reluctant to use them. We are also considering other measures that could be used to provide education, awareness, and support outside of the legislative process (see Part 16).

In most civil cases, the party or parties bringing the case forward need to prove it is more likely than not that whatever they are claiming is true. This is known as ‘the balance of probabilities’ and is less onerous than the ‘beyond reasonable doubt’ proof that’s needed in criminal cases.

Why do we need a new civil protection order?

171. The law in Scotland provides for several individual and community protection orders which can be used to protect individuals and prevent harmful conduct in a range of different situations.

172. A number of different protection and prevention orders currently exist in Scotland. Some of these focus on specific, and clearly defined, harmful situations. For example: forced marriage, female genital mutilation, domestic abuse, and protecting children from significant harm. Others can be applied more broadly to different kinds of conduct, for example non-harassment orders, and the power of interdict under common law.

173. None of these existing civil orders fully address the problem of conversion practices, nor are they designed to.

Common law is the law established following court cases, rather than a law set down in legislation.

174. An important feature of the proposed civil orders in relation to conversion practices is their ability to protect specific individuals from an identified risk of harm of conversion practices in a tailored and individualised way.

175. We have also identified value in legislating for a civil order that will relate to conduct which puts the public or community at large at risk. In this situation there would not be the requirement of a named victim. This will be particularly useful for preventing harm caused by individuals or institutions that conduct conversion practices on a wider scale.

176. As a result, we have identified the need for a new civil order to be introduced that would include both of these situations.

Summary of proposal

177. Our proposal is to introduce a civil order with the following uses:

• to protect a specific person from the harm caused by another individual
• to protect the wider community from the conduct of an individual or organisation that has previously engaged in conversion practices. For example, an individual that has caused harm to multiple people as a result of conversion practices

Civil order to protect both (I) an individual and (II) the wider community

Who can apply

To protect an individual at risk:

• The person to be protected
• The police
• Local authority
• A third party (with leave of the court)

To protect the wider community:

• The police
• Local authority

Purpose of order

To protect an individual at risk:

• To prevent or reduce the likelihood of a specific person being harmed by a conversion practice being done to them.

To protect the wider community:

• To prevent or reduce the likelihood of people in Scotland in general being harmed by conversion practices.

Conditions for granting

To protect an individual at risk:

• The order and (any requirement in it) must be necessary for the above purpose.
• There needs to be evidence that a specific individual is at risk of harm from either the provision of a service or a coercive course of behaviour done with the intent to change or suppress their sexual orientation or gender identity.
• There does not need to be evidence that conversion practices have already taken place.

To protect the wider community:

• The order (and any requirement in it) must be necessary for the above purpose.
• The court needs to be satisfied that the person to whom the order applies has carried out conversion practices before or has previously caused someone to leave Scotland for the purpose of conversion practices.
• There needs to be evidence that the public are at risk of harm from the person on whom the order is imposed of conversion practices.

Example of use

To protect an individual at risk:

• Prevent a person being taken abroad by a family member to undergo conversion practices, including restrictions relating to the removal of passports.
• Prevent a specific person contacting or meeting a person where they have attempted to carry out conversion practices on them before.

To protect the wider community:

• Prevent an individual from attending a particular premises or type of premises where they have previously engaged in conversion practices.
• Prevent an individual from holding or leading group or individual prayer sessions related to changing or suppressing sexual orientation or gender identity of the individuals attending them.
• Prevent an individual from carrying out advertising and promotion of their service which purports to be able to change or suppress people’s sexual orientation or gender identity .

Penalties for breaching

To protect an individual at risk:

• On summary conviction, penalty is to be imprisonment for a period not exceeding 12 months, a fine not exceeding the statutory maximum, or both.
• On conviction on indictment, penalty is to be for a sentence of imprisonment not exceeding 2 years, an unlimited fine, or both.

To protect the wider community:

• On summary conviction, penalty is to be imprisonment for a period not exceeding 12 months, a fine not exceeding the statutory maximum, or both.
• On conviction on indictment, penalty is to be for a sentence of imprisonment not exceeding 2 years, an unlimited fine, or both.