Misogyny – A Human Rights Issue

Section 2: Approach

2.1 Working Group remit

The Working Group's remit was developed from a number of sources including the first report of the First Minister's National Advisory Council on Woman and Girls which included a recommendation to 'criminalise serious misogynistic harassment, filling gaps in existing laws'.

In response to this recommendation, and calls from women's organisations to explore this issue in more detail, the Working Group was established under independent leadership to consider how the criminal law deals with misogynistic harassment, including whether there are gaps in legislation that could be filled with a specific offence on misogynistic harassment.

The remit was split into three phases as follows:

Phase One

Build a picture of the experiences of women and girls in Scotland and internationally, applying a gender analytical lens, through the consideration of existing data sets, literature reviews and lived experience. Set out the principles which will support a shared understanding of how these experiences are influenced and/or driven by misogynistic behaviour and/or attitudes and where this behaviour is, or should be, a criminal offence. Expertise will be commissioned as required to support decisions by the Group.

Phase Two

Consider the outputs of Phase One and map these onto the criminal law in Scotland as it stands. Identify whether there are gaps in the existing law and/or where there is a failure to implement existing legislation in a way that protects women and girls. Consider the legal practice in Scotland and internationally that offers the best protection for women and girls and examine how misogyny may be best tackled through a legal lens.

In addition, the Group will consider whether sex should be included within the hate crime framework to be introduced at a later and appropriate date, following introduction of hate crime legislation.

Phase Three

Work collaboratively to develop a specific definition of misogyny within a Scottish legal context, taking account of behaviours that already fall within criminal law and actions that can be taken out with the criminal law to address women's experiences relating to misogynistic behaviour or inequality, challenge men's behaviour and wider societal attitudes.

2.2 Working Group membership

Working Group members were appointed in January 2021 and the first meeting of the Working Group was held in February 2021. Group meetings of members were held regularly and applied the Chatham House Rule^[1] in order to encourage full and frank discussion. The Working Group comprised experts in Scots law, international human rights law, women's equality and perpetrator behaviours relating to gender-based violence (see below).

Baroness Helena Kennedy QC (Chair)
Professor John Devaney
Eilidh Dickson (from August 2021)
Susan Kemp
Dr Chloë Kennedy
Shelagh McCall QC
Emma Ritch (until July 2021)
Advisory or Observatory status:
Jamie Lipton
Mona Rishmawi

The Working Group was supported by a Secretariat of Scottish Government officials, led by Saira Kapasi and Bill Brash. The support provided, based on the group members' requests, included correspondence, organising meetings and the presentation of oral evidence from 20+ experts (see Appendix 1), as well as aiding the Working Group in ensuring it had considered a wide evidence base in reaching its conclusions and recommendations. Personal views of Ministers and positions of political parties were not among the evidence base considered by the Group. The process of evidence gathering and presentation involved:

• Gathering new evidence and insights:
  • Conducting a survey of Lived Experiences of misogyny in Scotland (see separate publication 'Lived Experience Survey Analysis').
  • Seeking input from women's groups, academics, policy experts and Police Scotland on key questions (see Appendix 1 which also lists those invited who opted not to give input).
  • Facilitating the Working Group in mapping the findings from the Lived Experiences survey to existing criminal legislation.
• Gathering and presenting existing evidence and insights:
  • Collating and presenting definitions of misogyny from academics, policy makers and practitioners.
  • Collating and presenting evidence on misogyny and how it is experienced in public spaces, online, in the workplace, in education settings, and violence against women.
  • Presenting the Working Group with evidence on international approaches to tackle misogyny through legal interventions and other initiatives.

2.3 Questions considered by the Working Group

The Working Group approached the remit of this Review by working through the following questions:

2.3a What is misogyny?

In his Independent Review of Hate Crime Legislation in Scotland, Lord Bracadale states:

"The term 'misogyny' is used a lot in the context of the debate about offending based on gender. This is a term which has changed in usage over time. In its second edition (1989), the Shorter Oxford English Dictionary defined misogyny as "hatred of women". This was updated in the third edition (2002) to "hatred or dislike of, or prejudice against women." Many women's organisations incorporate a sense of imbalance of power when articulating what is meant by misogyny. For example, Engender define it as "systems or actions that deliberately subordinate women, and reflect the actor's understanding that women are not their equals." Some people treat the terms 'misogyny' and 'sexism' as synonymous, while others would argue that misogyny is often more targeted or negative and used to assert male dominance over women. It was apparent to me in the course of this review that different people use the term misogyny to mean slightly different things, and I suspect that its meaning may continue to evolve over time. I have used this language in the remainder of this part to reflect what I have heard, but where it is used in debate and discussion I would urge caution in considering exactly what is meant in the particular context."^[2]

Given the remit of this Working Group, it was essential first to progress from '…people [using] the term misogyny to mean slightly different things' to a clear working definition that could anchor discussions and recommendations. The creation of this definition involved seeking guidance from academics and experts with a determination to move on from the literal and etymological notion that misogynistic behaviour stems from 'hating women'. The notion of hatred in this context fails to capture the way in which the term 'misogyny' is now being used to described thoughts or feelings that result in behaviours that routinely, rather than exceptionally, undermine, devalue or degrade women and girls. The Working Group recognised that many perpetrators of what could be characterised as misogynistic behaviour would claim to love women, may well live with women or have relationships with women – daughters, sisters, wives, partners. After all, Donald Trump has claimed to 'love women'^[3] but also appears unashamed to have been recorded describing how his power enables him to "Grab 'em [women] by the pussy. You can do anything."^[4]

2.3b What behaviours and harms fall within the definition of misogyny?

Having achieved this working definition, the Working Group went on to consider what behaviours and harms fell within this definition. The Secretariat to the Working Group conducted a survey to gain deeper insights into these behaviours and harms, the characteristics of the victims of these harms and the contexts in which they occur. In depth findings from this survey can be found in the 'Lived Experience Survey Analysis' (published separately).

2.3c Protections under the current law and protections provided in other jurisdictions

The Working Group then examined the degree to which existing law and its application by Police Scotland, Crown Office and Procurator Fiscal Service and the courts protects society from misogynistic behaviour (within the working definition) and where gaps exist. The Working Group also sought to understand what could be learnt from other jurisdictions and initiatives, within and outwith the criminal law.

In considering the current law, the Working Group also discussed the fit of both Scotland's existing hate crime legislation (Hate Crime and Public Order (Scotland) Act 2021) and the broader framework or concept of 'hate crime' to the context, behaviours and harms that were revealed in discussion of the evidence.

2.4 Shared premise: Equally Safe and violence against women and girls

The vision and objectives of Equally Safe, Scotland's strategy to prevent and eradicate violence against women and girls, were foundational to this Review. Equally Safe's definition of violence against women and girls points to a wide spectrum of behaviours as well as, implicitly, by describing this violence as gender based, to the power imbalances between men and women that enable and perpetuate these acts of violence:

"Violence against women and girls encompasses (but is not limited to):

• physical, sexual and psychological violence occurring in the family (including children and young people), within the general community or in institutions, including domestic abuse, rape, and incest;
• sexual harassment, bullying and intimidation in any public or private space, including work;
• commercial sexual exploitation, including prostitution, lap dancing, stripping, pornography and trafficking;
• child sexual abuse, including familial sexual abuse, child sexual exploitation and online abuse; and
• so called 'honour based' violence, including dowry related violence, female genital mutilation, forced and child marriages, and 'honour' crimes."^[5]

The considerations and recommendations of this Review are wholly aligned with, and complementary to, the vision and objectives of Equally Safe.

Further, the Working Group was mindful of the work of Liz Kelly and others on the spectrum of sexual violence, as neatly captured by Megan Hoyt:

"not all manifestations of patriarchal control look or feel violent. Some may seem relatively trivial, however, when connected to the broader spectrum of violence the reality is that many women may experience even 'minor' events as threatening"^[6]

2.5 Who is this report for?

This report was commissioned by the Scottish Government and, of course, its recommendations are for them. However, the Working Group's hope is that this report will be both a provocation and an inspiration to those who work in the criminal justice system, in education and business leadership as well as those with policy influence within, and beyond, Scotland.