Ending conversion practices in Scotland: consultation

Part 8: Offence of Engaging in Conversion Practice

Graphic text below:

Criminal Offence Overview

Act

Provision of a service

Or

Act

Coercive course of behaviour

+

Relates to a specific individual

+

Intent to change or suppress

+

Harm

Physical, psychological

Defence

Conduct was reasonable in the circumstances

78. This diagram sets out the key elements of the proposed new offence of engaging in conversion practices.

• Intent: that the individual accused of carrying out conversion practices did so with the intention that the sexual orientation or gender identity of the victim would be changed or suppressed.
• Acts: that either the provision of a service or coercive course of behaviour took place.
• Victim: that the service or course of behaviour relates to a specific, identified individual.
• Harm: that the service, or course of behaviour, has caused the victim physical or psychological harm.
• Defence: the accused person has a defence if their conduct was reasonable in the particular circumstances.

79. Draft Bill provisions setting out this proposal as it would be expressed in legislation are below, with the core offence at paragraph 112 and the defence at paragraph 125.

Intent – mental element of the offences

80. Most criminal offences have a mental element that relates to what is in the mind of the person undertaking a criminal act. For the offence of engaging in conversion practices, we propose that the relevant conduct must be undertaken with the intention that it will result in the change or suppression of the sexual orientation or gender identity of the person against whom the act is directed. It would not matter whether the change or suppression of their sexual orientation or gender identity is achieved or is, in fact, possible.

81. Without this specific intention being proven, a service or course of behaviour would not be criminalised, even if harm is caused. For example, providing counselling or advice to help someone to explore and come to their own decision about their sexual orientation or gender identity would not meet this intent. Nor would shouting abuse at someone about their sexual orientation or gender identity, where there was no intention to change or suppress that specific person’s sexual orientation or gender identity.

82. As already set out above in Part 5 the intention can be based on what the victim considers their sexual orientation or gender identity to be or may be (if they are questioning or unsure). Alternatively, it can be based on the presumption of the perpetrator as to the sexual orientation or gender identity of the victim.

83. A notable aspect of conversion practices, is that the intention to change or suppress a person’s sexual orientation or gender identity is not always accompanied by an intention to harm the victim. Conversion practices are often driven by a desire to help or protect the person being subjected to them even though harm is ultimately caused. Because of this, the proposed offence does not require it to be proven that the perpetrator to intend to cause harm to the victim or to be reckless as to whether harm would occur. However, for the offence of engaging in a conversion practice to be committed, harm will need to have resulted nonetheless (see paragraphs 109-117 below).

84. We recognise that evidencing an individual’s internal motivation can be challenging and the requirement for corroborated evidence increases this challenge. However, we consider that this intent is fundamental to the concept of conversion practices and, as a result, it must form the basis of the mental element of any related criminal offence. Without this specific intent, the offence would extend beyond its intended remit and risk criminalising a wider range of behaviour.

Victim – in relation to a specific individual

85. Conversion practices are used to try to change or suppress a person’s sexual orientation of gender identity. We believe, therefore, that the conversion practices offence must relate to a specific individual. The proposals in this legislation do not target hatred towards sexual orientations and gender identities more generally, for example, statements that being gay is sinful or that transgender identity does not exist, that bisexual people are in denial, or statements of belief which are not made in relation to a particular individual. For the purposes of this legislation, both the intention outlined above, and the criminal act undertaken to achieve that intention, must be in relation to the specific victim.

86. While conversion practices are undertaken in relation to a specific individual, we recognise they can pose a broader risk to the LGBTQI+ community, particularly where they are being undertaken on a repeated basis. Part 14 of this document contains additional information about how the proposed conversion practices protection order may be used to preventatively protect people in Scotland from the risk of harmful conversion practices.

The acts falling within the criminal offence

87. The criminal offence addresses two different forms of conversion practices, each of which are addressed in turn below.

The provision of a service

88. The first form of conversion practice that the criminal offence will address is the provision of a service, with the intended outcome that a person’s sexual orientation or gender identity will be changed or suppressed. This approach draws on that of some other jurisdictions that have focused legislation on medical interventions or formal treatments or services, such as Canada and Germany.

89. In this context we do not use the term ‘service’ to mean a service of worship or church service.

90. The intention behind this part of the offence is to address the situation where a conversion practice is undertaken by a person who claims to have a particular knowledge, skill or expertise and where the act is purported to be delivered as, or used as, a method to effect a change or suppression. While such an approach broadly aligns with the common understanding of the term “conversion therapy”, it is not focused on a specific setting, such as medical or healthcare settings. We intend for this to include acts that are pseudo-medical.

91. These acts typically have a high coercive element due to the status or position of the perpetrator and, as a result, have an enhanced potential for harm. They are usually carried out by a person in a position of power, both because the victim is in a position of dependency for that service, and because there is often a related claim of knowledge, expertise and/or experience. A victim is more likely to trust, accept or feel obliged to follow the advice of someone they consider to have expertise. The acts are purported to be healing or reparative in relation to an individual’s sexual orientation or gender identity. For example, services that claim to provide a remedy for “unwanted same-sex attraction” and “gender confusion”. This conflicts with a clear medical consensus that it is not possible to bring about such a change and that conversion practices do not work.

92. We do not wish to interfere with the provision of medical or psychological care that is conducted ethically by a healthcare professional according to relevant rules and guidelines, and we have included a specific provision that recognises that such healthcare will not be done with the intention discussed in paragraphs 80 – 84 above (see below in relation to ‘avoidance of doubt’ clauses).

93. An act falling within the definition of this part of the offence targeting the provision of a service, will be within the scope of the criminal offence when undertaken either on one occasion or as part of a course of behaviour, in situations where all the other elements of the offence are met.

94. We propose to include a non-exhaustive list of examples in the legislation about what a service will include in this context. Specifically, the types of acts that would be considered a service for this part of the offence will include (where it is intended to change or suppress an individual’s sexual orientation or gender identity):

• counselling or any other form of talking therapy
• coaching or instructing
• a purported treatment

95. This approach would capture scenarios where there is provision of purported expertise, knowledge or skills, such as where a provider professes to have expertise and delivers therapies, online or in-person courses or other forms of purported treatment that are intended to change or suppress an individual’s sexual orientation or gender identity. This can be distinguished from counselling or therapy in which an individual is supported with their unwanted or confusing thoughts and feelings through an open, explorative and even challenging approach that does not have a pre-determined outcome or preference towards their sexual orientation or gender identity.

96. It would not matter whether the service or treatment was provided free of charge or for payment of any kind, and it could be carried out against a single specific person or against that person and others at the same time. This ensures that scenarios such a group therapy are included where there may be a group of individuals present. However, both the act and the intention must relate to a specific individual victim.

97. This approach means that acts that cannot be considered to be a provision of service will not fall within the criminal offence unless they form part of a coercive course of behaviour.

98. In order to convict someone, a court will need to determine, amongst other things, whether their behaviour constituted the provision of a service. This will require a highly fact-specific assessment of the particular circumstances of an individual case. Our intention is that, in order to fall within this part of the offence, the provision of advice, guidance or support will need to reach a level of formality, professionalism or expertise for it to be considered a service. For example, where a parent without any relevant background or purported expertise researches and carries out something they consider to be “therapy”, they are not providing a service. Nor is a religious leader who has an informal conversation with someone about doctrinal views in relation to their sexual orientation or gender identity. These situations may fall within the legislation if they form part of a coercive course of behaviour.

7. What are your views on the proposal that the offence will address the provision of a service?

Support

Do not support

Don’t know

8. Please give reasons for your answer to Question 7.

Coercive course of behaviour

99. This part of the criminal offence will address conversion practices that take the form of a coercive course of behaviour, where one or more acts are performed in a repeated, continuous, or sustained way and where the behaviour is also coercive.

100. We have focused this offence on a course of behaviour as the evidence from those with lived experience tells us that the most common form of conversion practices in Scotland is that of a series of “informal” actions conducted over a period of time. When such acts are conducted in a repeated or sustained way, they can become harmful. We believe that any legislation that does not include this form of conversion practice would fail to address the harm we are seeking to address.

101. In developing this offence, we have carefully considered and learnt from the approach taken to domestic abuse, through the Domestic Abuse (Scotland) Act 2018 (“DASA”), which addresses behaviour that is abusive and harmful when committed in an ongoing or repeated way, in particular circumstances.

102. This part of the offence requires the behaviour to have been undertaken either repeatedly or continuously with a minimum requirement that the behaviour happens on at least two occasions. The course of behaviour as a whole will need to be coercive, and the other requirements of intent and harm will also need to be met.

103. This means that scenarios, such as the provision of advice and guidance by a religious leader or restrictions and pressure from parents over a period of time, could only be captured by the definition of the course of conduct where coercion is also applied. There would also need to be specific intent to change or suppress the person’s sexual orientation or gender identity and the actions must have caused harm. For example, advice and guidance from a religious leader which includes statements of traditional faith beliefs and sexual ethics would also have to be demonstrably coercive through evidence of emphatic directives accompanied by forceful or threatening statements intended to pressure the individual person into changing or suppressing their orientation or identity.

104. In the case of conversion practices, we believe coercion to be the defining feature of the course of behaviour and we have targeted the offence on this aspect. Following the approach taken to domestic abuse, we propose to include a non-exhaustive list of examples within the legislation, of the types of behaviour that would be considered to be coercive. We propose that a coercive course of behaviour in the context of conversion practices will include acts that are:

• violent, threatening or intimidating towards the victim
• controlling of the victim’s day-to-day activities
• manipulative or pressuring the victim to act in a particular way
• frightening, humiliating, degrading or punishing of the victim

105. By controlling, we refer to actions that regulate, restrict, or monitor a person’s behaviour or otherwise deprives them of their own freedom of action. For example, preventing someone from dressing in a way that reflects their sexual orientation or gender identity, associating with certain people or undertaking certain activities considered to be linked to their sexual orientation or gender identity. In the context of conversion practices, controlling actions are used deliberately to restrict, prevent, or limit people from living or acting in accordance with their sexual orientation or gender identity. Controlling actions, by their nature, apply a degree of force and give a person no choice other than to regulate their behaviour accordingly.

106. These behaviours, such as violent, threatening, frightening, or punishing acts, create fear as to the consequences of the person living in accordance with their sexual orientation or gender identity. They may also compel a person to claim an alternative sexual orientation or gender identity to stop consequences or behaviours being directed at them. Intimidating acts deliberately make someone feel afraid or threatened, to force or pressure them to act in a particular way, such as physical intimidation or threatening their safety or security. Acts of humiliation or degradation are those which promote feelings of shame and self-disgust around a particular sexual orientation or gender identity, such as mocking, bullying, and belittling. Within conversion practices, manipulating behaviour is likely to involve a perpetrator abusing a position of power or trust to play on an individual’s anxieties or beliefs. For example, weaponising a person’s religious beliefs, or exploiting a person’s confusion about their sexual orientation or gender identity. Pressure is a key tool in conversion practices to make a person act in a particular way in relation to their sexual orientation or gender identity.

107. By taking an approach which focuses on repeated, coercive behaviour we ensure only the most serious harmful conduct is criminalised. Behaviour such as general conversations, prayer, guidance and advice, and parental direction, guidance and restrictions are not usually coercive towards the person they relate to. For example, pastoral support provided by a religious leader to an individual, stating traditional faith beliefs and associated guidance, without any of the forms of coercion highlighted above would not meet the requirements of the offence. Similarly, nor would parental advice expressing concerns and advising their child against medical interventions, where it is not coercive towards the child or part of a broader coercive course of behaviour. We also do not consider such actions would meet the intent requirement of the offence.

108. The acts undertaken must be deliberate actions carried out against a person and a failure to do something, or an omission, would not fall within the offence. By way of example, a parent who did not actively support their child’s decision to, for example, present as a different gender from that given at birth is not itself an act that would fall within the legislation.

9. What are your views on the proposal that the offence will address a coercive course of behaviour?

Support

Do not support

Don’t know

10. Please give reasons for your answer to Question 9.

Harm – requirement for harm

109. We intend for the criminal offence of engaging in conversion practices to address conduct that is sufficiently serious and harmful. We therefore propose that the offence will include a requirement that the act or course of behaviour has caused harm to the victim: either physical harm, psychological harm, or a combination of both. The legislation will be explicit that psychological harm includes fear, alarm and distress.

110. In relation to acts that are considered to be a provision of a service, the harm can be caused either by an individual act or a course of behaviour made up of a series of acts taken together. In this context, one session or type of therapy undertaken by the perpetrator may not cause harm (and so will not be criminalised), but several sessions or types, when taken together, may result in harm.

111. Courses of behaviour that do not cause harm will not be criminalised.

11. What are your views on the requirement that the conduct of the perpetrator must have caused the victim to suffer physical or psychological harm (including fear, alarm or distress)?

Agree

Do not agree

Don’t know

12. Please give reasons for your answer to Question 11.

112. Draft section – offence of engaging in conversion practice

1. Offence of engaging in conversion practice

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

(a) person A engages in—

(i) 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

(ii) a course of behaviour which is coercive of person B,

(b) person A engages in the behaviour with the intention mentioned in subsection (2), and

(c) the behaviour causes person B to suffer physical or psychological harm.

(2) The intention is that any sexual orientation or gender identity which (at any time the behaviour is engaged in)—

(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.

2. Further provision in relation to offence of engaging in conversion practice

(1) Subsections (2) to (5) contain examples and other material to assist in the interpretation of section 1.

(2) Examples of behaviour which may constitute (or be part of) provision of a service in relation to person B include—

(a) person A counselling or providing any other form of talking therapy to person B,

(b) person A coaching or instructing person B,

(c) person A carrying out a purported treatment in relation to person B.

(3) Examples of behaviour which, if it forms part of a course of behaviour, may indicate that the course of behaviour is coercive of person B include—

(a) person A directing behaviour that is violent, threatening or intimidating towards person B,

(b) person A controlling person B’s day-to-day activities,

(c) person A manipulating or pressuring person B to act in a particular way,

(d) person A frightening, humiliating, degrading or punishing person B.

(4) In subsection (3)(a), the reference to violent behaviour includes reference to sexual violence as well as physical violence.

(5) It does not matter for the purposes of section 1—

(a) whether any behaviour engaged in changes, or is capable of changing, person B’s sexual orientation or gender identity,

(b) whether behaviour is engaged in free of charge or in exchange for payment (of any kind),

(c) whether, on any occasion on which behaviour is engaged in, it is engaged in only in relation to person B or in relation to person B and other persons at the same time.

(Please note that section 2 will also apply for the purposes of the offence of taking a person outside Scotland for conversion practices and conversion practice protection orders.)

3. Interpretation

In this Part—

(a) references to behaviour—

(i) do not include reference to a person failing to do things in relation to another person, but

(ii) otherwise include reference to behaviour of any kind (including, for example, saying or otherwise communicating something as well as doing something),

(b) a course of behaviour—

(i) involves behaviour on at least two occasions,

(ii) may involve—

(A) the same behaviour being engaged in on a number of occasions, or

(B) different behaviour being engaged in on different occasions,

(c) psychological harm includes fear, alarm and distress,

(d) reference (however expressed) to a person’s sexual orientation includes reference to the person having no sexual orientation towards other persons.

(Please note that section 3 will also apply for the purposes of the offence of taking a person outside Scotland for conversion practices and conversion practice protection orders. )

For the avoidance of doubt

113. There are a number of situations that we do not intend to fall within the legislation. While we do not consider that these will meet the requirements of the offence, particularly the intent requirement, we propose to include ‘avoidance of doubt’ clauses to put this beyond doubt.

114. We propose to include a specific provision to recognise that the intent requirement will not be met in the situation of the provision of healthcare by a healthcare professional in the course of their employment. By this we intend to encompass practices that are offered through regulated healthcare services provided in line with the practitioner’s professional opinion, and which comply with relevant medical, ethical and legal rules and guidelines. This approach ensures that the legislation does not unnecessarily impact the delivery of medical or psychological care, ensuring ethical practitioners are safeguarded and those who need it can continue to access care and advice.

115. We also propose to include as additional clarification that this healthcare provision includes medical treatment intended to align a person’s physical characteristics with their gender identity and medical treatment that causes or addresses a lack of sexual desire.

116. We intend to provide clarity that certain other behaviour will not be carried out with the requisite intention for the offence. These are situations where the service or course of behaviour affirms the sexual orientation or gender identity that another person considers themselves to be.

117. We will also be clear that the intent requirement is not met where there is no intention to direct person B towards any particular sexual orientation or gender identity – particularly where this involves conversations or where the behaviour only involves the expression or opinions or beliefs. The intention requirement ensures that it will not fall under the legislation where a person such as a family member or someone expressing their views in the street states negative views about a particular sexual orientation or gender identity without a specific intention to change or suppress those characteristics of another person. These avoidance of doubt provisions provide additional reassurance in that regard.

118. Draft section – avoidance of doubt provision

4. Further provision in relation to offence of engaging in conversion practice: intention

(1) For the avoidance of doubt, examples of behaviour being engaged in without the intention mentioned in section 1(2) include—

(a) the provision, by a healthcare professional in the course of employment as such, of healthcare, including—

(i) medical treatment intended to align person B’s physical characteristics with person B’s gender identity,

(ii) any medical treatment that causes or addresses a lack of sexual desire on person B’s part,

(b) person A engaging in behaviour (whether a course of behaviour or behaviour on a single occasion) in relation to person B which consists entirely of behaviour which—

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

(ii) is not intended to direct person B towards any particular sexual orientation or gender identity (including, in particular, any such behaviour which consists entirely of conversation, whether or not extending to the provision of advice and guidance, of a therapeutic, spiritual or any other nature),

(c) person A engaging in behaviour (whether a course of behaviour or behaviour on a single occasion) in relation to person B which consists entirely of person A expressing opinions or beliefs, without intending to direct person B towards any particular sexual orientation or gender identity.

(Please note that section 4 will also apply for the purposes of the offence of taking a person outside Scotland for conversion practices and conversion practice protection orders. )

Defence of reasonableness

119. We propose that the offence will include a defence that the accused’s conduct was reasonable in the particular circumstances. This test is whether the accused’s behaviour was reasonably objective, meaning that it is not determinative that the accused person considers their behaviour was reasonable based on their own values.

120. A ‘defence of reasonableness’ is included in a number of criminal offences in Scotland where there is a broad range of conduct that potentially falls within the offence. This includes the offence of Threatening or Abusive Behaviour (Section 38, Criminal Justice and Licensing (Scotland) Act 2010) and the offence of Stalking (Section 39, Criminal Justice and Licensing (Scotland) Act 2010). It acts as a safeguard where the actions of an accused person may meet the technical requirements of the offence but there is a reasonable justification why they should not be convicted of the criminal offence.

121. We are clear that practices that seek to change or suppress the sexual orientation or gender identity of someone else are abhorrent and have no place in our society. In order to address conversion practices, we have proposed a new offence that includes a broad range of potential conduct that could occur in a wide range of circumstances, particularly in the context of a coercive course of behaviour.

122. Although the intent and harms test will have to be met for conduct to be criminalised, because of the breadth of potential conduct involved, we recognise that there could be a very small number of circumstances where it could be argued it was ‘reasonable’ to act in a certain way, for example, when there was another overriding motivation or the exercise of other rights is involved.

123. While it may be difficult to envisage circumstances in which behaviour meeting each of the four tests set out above (relating to an individual, provision of a service/coercive course of behaviour, intention to change or suppress, cause of harm) would ever be “reasonable”, this provision ensures that where someone behaves in an objectively reasonable way, but their behaviour nonetheless technically amounts to the commission of the offence of engaging in conversion practices, they are not criminalised by the offence.

124. We anticipate this defence may potentially arise where the immediate safety of the victim was at risk, and acts were carried out to protect them from imminent harm. For example, where someone is at immediate risk of suicide as a result of distress related to their sexual orientationor gender identity, requests and is supported to find a short-term coping mechanism. It could also potentially apply in situations where the specific day-to-day controls implemented by a parent were to prevent a child from engaging in illegal or dangerous behaviour.

125. Draft section – defence of deasonableness

5. Defence of reasonableness

(1) In proceedings for an offence under section 1, 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.

13. Do you agree with the inclusion of a defence of reasonableness?

Agree

Do not agree

Don’t know

14. Please give reasons for your answer to Question 13.

Proposed penalty

126. We propose that offences relating to this offence will be able to be tried “both ways” in either summary or solemn procedure.

In summary procedure, a trial is held in the Sheriff or Justice of the Peace Court before a judge without a jury. The maximum sentence on conviction is one year of imprisonment. In solemn procedure, the trial is held before a judge sitting with a jury in either the Sheriff Court or the High Court. This is used for more serious allegations and consequently attracts higher penalties. The decision on which procedure to use is decided by the Crown Office and Procurator Fiscal Service depending on the seriousness of the alleged offence.

127. Within Scots law, we consider that the following offences have comparable behaviours to those addressed in this offence:

• Section 38 (Threatening or abusive behaviour) of the Criminal Justice and Licencing (Scotland) Act 2010 captures a course of threatening and/or abusive behaviour, though with a requirement to cause the person to suffer fear or alarm, carrying a maximum sentence of 5 years;
• Section 122 of The Anti-social Behaviour, Crime and Policing Act (2014), captures the use of violence, threats of coercion – in this case to force a person into marriage or civil partnership, without their full and free consent – carrying a maximum penalty of 7 years; and
• Domestic Abuse (Scotland) Act 2018 captures complex and coercive physical and psychological behaviour that may be conducted over a period of time, privately, and where there is an imbalance of power. This carries a maximum penalty of 14 years.

128. While the offence will primarily capture acts that are psychological in nature, it will also include a coercive course of behaviour which may include physical and abusive acts which typically attract higher sentences. However, we do not consider that a conversion practices course of behaviour necessarily demonstrates the level of physical violence associated with domestic abuse. We therefore propose the following sentencing range for convictions under this offence:

• on summary conviction: imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum (£10,000), or to both
• on conviction on indictment (solemn procedure): imprisonment for a term not exceeding 7 years, or to an unlimited fine, or both

15. Do you agree with the proposed penalties for the offence of engaging in conversion practices?

Agree

Do not agree

Don’t know

16. Please give reasons for your answer to Question 15.