Ending conversion practices in Scotland: consultation

Part 7: The Criminal Law – Overview

71. The Scottish Government believes that the criminalisation of harmful conversion practices is important for several reasons. It sends a clear message that these practices are unacceptable and acknowledges that they are harmful to both individuals and society. Criminalisation allows for the punishment of offenders and provides an avenue for redress. It also deters people from carrying out conversion practices.

72. We believe that the criminal law should be used to address conversion practices which are harmful, and which are not adequately addressed under existing law.

Existing criminal law

73. Some forms of conversion practices will already fall within existing criminal offences. The most obvious examples are conversion practices which involve a physical act, such as assault including sexual assault. Some non-physical forms of conversion practices may also be triable as existing criminal offences. For example, threatening or abusive behaviour and stalking are criminal acts.

74. The actions that people take when carrying out conversion practices can be complex and varied. Our analysis has shown that not all types of conversion practices can be addressed by existing offences. For example, talking therapy, or coaching someone to change or suppress their sexual orientation of gender identity are unlikely to be prosecutable under the existing criminal law. While these are generally reasonable and non-harmful everyday actions in the majority of circumstances, when used with the intent to change or suppress the sexual orientation or gender identity of another, they can become harmful.

75. Even where the act that was being carried out might relate to an existing criminal offence, a conversion practice might not meet all of the requirements of that offence. For example, to be convicted of stalking a person must cause their victim to suffer fear and alarm. They must also intend to cause the victim fear or alarm or know, or ought to know in all the circumstances, that their actions would likely have this effect. This would not apply to many cases of conversion practices as the perpetrators often believe that they are helping the victim. In such a case, it may be difficult to prove an intention or recklessness to cause fear and alarm. In addition, the harmful effect of conversion practices is less likely to be fear and alarm but more often resemble post-traumatic stress which may manifest in different ways and over a longer period.

76. New criminal offences will ensure that the legislation adequately protects people from harmful conversion practices by addressing the gaps within the existing criminal law.

Existing Legislation

Existing Legislation: Stalking (s.39 Criminal Justice and Licensing (Scotland) Act 2010)

Detail: Stalking requires a course of conduct. A person must intend to cause fear and alarm to their victim or know, or ought to know in the circumstances, that the conduct would be likely to have this effect. There is an explicit list of conduct that falls within offence. It also requires the victim to suffer fear or alarm.

Limitations in relation to conversion practices: The harm of conversion practices may often resemble PTSD or have other harmful effects that would not be considered to be “fear or alarm”. Many forms of conversion practice would not fall within the conduct specified in the offence. It does not cover situations where the perpetrator did not intend or was not reckless as to the causing of fear or alarm.

Existing Legislation: Threatening or abusive behaviour (s.38 Criminal Justice and Licensing (Scotland) Act 2010

Detail: It is an offence for someone to behave in a threating or abusive manner. This behaviour must be likely to cause a reasonable person fear or alarm, and either be intended to cause fear or alarm or be reckless as to whether it would cause fear or alarm.

Limitations in relation to conversion practices: This offence does not capture forms of conversion practices that would not be considered to be threatening or abusive.

As with stalking, this offence does not capture situations where the perpetrator did not intend or was not reckless as to causing their victim fear or alarm.

Existing Legislation: Domestic Abuse (Scotland) Act 2018 (s1)

Detail: It is an offence for someone to engage in a course of abusive behaviour towards a partner or ex-partner. A reasonable person must consider the course of behaviour likely to cause the victim harm. The perpetrator must intend to cause them harm or be reckless as to whether harm will be caused.

Limitations in relation to conversion practices: This legislation only applies to current or former partners, not broader relationships or people who are not connected.

New criminal offences relating to conversion practices

77. Our proposal is to create new criminal offences to address a gap in the law relating to harmful conversion practices, protect individuals from that harm, and provide criminal penalties when such conduct has occurred. The new criminal offences will address three forms of conversion practices: the provision of a service; a coercive course of behaviour; and taking someone out of Scotland for conversion practices.