Reforming the criminal law to address misogyny: consultation

Ministerial Foreword

Since the Scottish Parliament was established in 1999, Scotland has taken significant steps to improve how the justice system recognises and addresses violence against women and girls.

This has included criminal law reforms in relation to rape and other sexual offences:

• modernising the substantive criminal law;
• introducing restrictions on the use of sexual history and character evidence concerning complainers in sexual offence cases; and
• legislating for statutory jury directions, requiring judges to make clear that a delay in reporting a sexual crime, or an absence of physical resistance to an attacker, does not necessarily mean that an allegation is false.

In 2018, the Parliament passed the Domestic Abuse (Scotland) Act, creating a new offence to enable the prosecution of domestic abuse as a single offence, recognising domestic abuse as a course of conduct which frequently encompasses both physical and psychological abuse. Other reforms to improve how the criminal justice system addresses violence against women have included the creation of a specific offence of stalking and new law to criminalise the emerging problem of the non-consensual sharing of intimate images.

This work continues and in this Parliament we will introduce legislation to abolish the 'not proven' verdict, provide a statutory right of anonymity for victims of sexual crime and implement many of the recommendations of Lady Dorrian's review Improving the Management of Sexual Offence Cases.

As I set out in the Vision for Justice in Scotland, which was published in February 2022, the simple and unpalatable truth at the heart of the abuse and violence that women and girls face is that it continues to be underpinned by inequality, societal attitudes and structural barriers that perpetuate that inequality.

This includes the operation of the justice system. The current justice system was historically designed by men, for men, and therefore it must adapt to meet the needs of over half of our society. We must therefore take urgent action to ensure women and children are better serviced by our approaches to justice.

As Baroness Kennedy's report, Misogyny, a Human Rights Issue makes all too clear, it remains the case that women and girls are still all too often subjected to misogynistic harassment and abuse when out on the street, at work, and while online. Society as a whole, and the criminal justice system in particular, fails to fully recognise or adequately respond to the problem. Indeed, for all the progress that has been made, emerging issues like the increasingly poisonous nature of many online discussions and the ubiquity of pornography means that in some respects, the problem is actually worse than it has been before.

Baroness Kennedy's report made four specific recommendations for reform of the criminal law to enable the justice system to better respond to misogynistic behaviour that is or ought to be considered criminal. We have considered carefully and this consultation proposes five new criminal laws to respond to these recommendations.

The approach that the report proposed is radical in that it recommends the creation of gendered law. In other words, criminal law that offers protection for women and girls and only women and girls.

In part, the reforms are about properly labelling misogynistic harassment and abuse for what it is. While there are a range of laws that can be used to prosecute misogynistic harassment and abuse in some circumstances, including threatening or abusive behaviour, stalking and breach of the peace, these more general offences do not accurately identify the particular harm caused by misogynistic harassment and abuse. Equally, victims may not always even be aware that the harassment and abuse that they experience is against the law and the creation of specific offences may help victims to have confidence that they can access justice when they experience behaviour of this kind.

The proposed reforms also expand the scope of the criminal law with regard to how it deals with misogynistic abuse, for example, expanding the requirement that certain forms of abuse and harassment must be likely to cause fear or alarm, to include behaviour likely to cause humiliation, degradation and distress. This can send an important signal that such behaviour is not merely rude, sexist or unpleasant, but abusive and criminal.

Of course, criminal law reform alone cannot be expected to eliminate misogynistic abuse, or the attitudes that drive such abuse, from society. However, it can play an important role in making clear when behaviour is unacceptable and should not be tolerated and in so doing, it can have an important part to play in changing public attitudes.

Experience of the development of the domestic abuse offence has demonstrated that when extending the criminal law into novel and innovative areas, consultation often works best in response to the sight of draft criminal law provisions. This enables those with an interest to offer views not only on the general principle of reforming the criminal law but on the detail of exactly where the line should be drawn as regards behaviour that amounts to a criminal offence.

This consultation seeks views on five legislative provisions drafted to implement the four recommendations for criminal law reform contained in Baroness Kennedy's report. Baroness Kennedy's report provided a compelling and depressing picture of why action is needed. This consultation suggests how Baroness Kennedy's intent can be delivered through specific criminal law reforms and I encourage everyone with an interest to consider what is proposed and offer views.

Keith Brown
Cabinet Secretary for Justice and Veterans