Reforming the criminal law to address misogyny: consultation

Introduction

In February 2021, the Scottish Government established an Independent Working Group on Misogyny and Criminal Justice in Scotland ("the Working Group"), chaired by Baroness Helena Kennedy QC. The Working Group was tasked with considering how the Scottish criminal justice system deals with misogyny, including looking at whether there are gaps in the law that could be addressed by a specific criminal offence to tackle such behaviour.

The establishment of the Working Group followed the publication in January 2019 of the first report of the First Minister's National Advisory Council on Women and Girls, which included a recommendation to "criminalise serious misogynistic harassment, filling gaps in existing laws."

The Working Group was also asked to consider whether the statutory aggravation by prejudice and/or stirring up of hatred offence contained in the Hate Crime and Public Order (Scotland) Act 2021 ("the 2021 Act") should be extended to the characteristic of 'sex'.

That Act contains a power to add 'sex' to the list of characteristics covered by the statutory aggravation and the stirring up of hatred offence by secondary legislation. This reflected the fact that Lord Bracadale's Independent Review of Hate Crime Legislation in Scotland, published in May 2018, which provided the blueprint for the Hate Crime and Public Order (Scotland) Act 2021, had recommended that there should be a statutory aggravation of 'gender hostility' and that there should be a stirring up hatred offence covering stirring up hatred of people because of their gender.

The Working Group examined a large body of evidence and research concerning women's experience of misogynistic behaviours. This included gathering new evidence and insights via their survey of Lived Experiences of Misogyny in Scotland and seeking input from women's groups, academics, policy experts and Police Scotland on key issues.

The Working Group sought first to agree a working definition of misogyny to inform its work. The definition it agreed is:

"Misogyny is a way of thinking that upholds the primary status of men and a sense of male entitlement, while subordinating women and limiting their power and freedom. Conduct based on this thinking can include a range of abusive and controlling behaviours including rape, sexual offences, harassment and bullying, and domestic abuse."

The definition was deliberately non-legal and intended to provide the Working Group with a framework within which to consider the extent to which the criminal law currently protects women from misogynistic behaviour. In doing so, the Working Group took account of Scotland's hate crime legislation and the broader concept of 'hate crime' and the extent to which that concept is a useful tool to address misogynistic behaviours.

The Working Group was guided by the vision and objectives of Equally Safe, Scotland's strategy for preventing and eradicating violence against women and girls. Equally Safe sets out a vision to prevent violence from occurring in the first place, build the capability and capacity of support services, and strengthen the justice response to victims and perpetrators. The strategy and responses are informed by the experience of victims and by the expertise of professionals working in the field.

The Working Group published its final report in March 2022 (hereafter referred to as 'the report'). The report recommends the creation of what it describes as 'gendered law' – which is specifically intended to protect women and girls. However, the report also notes that "our preferred view that no offence should be created that requires a woman to prove that she is a woman" and accordingly, the criminal offence provisions apply where the perpetrator perceives their victim to be a woman, irrespective as to the victim's sex or gender.

The report notes:

"When law is created which is designed to protect men as well as women, it usually creates a blur around the ways in which women's lives can be markedly different from those of men and an ignorance of the life experiences of women, in terms of threat and fear in the public space…the evidence is clear that there is a pressing social need to address behaviours towards women. The Working Group recognised that there are men who need protection from certain things, but that they do not need protection from public sexual harassment and misogyny."

The report's specific recommendations for reform of the criminal law are:

• A new statutory aggravation to relate to misogynistic behaviour where a crime such as assault, criminal damage/vandalism or threatening or abusive behaviour is aggravated by misogyny;
• A new offence of stirring up hatred against women;
• A new offence of public misogynistic harassment of women; and
• A new offence of issuing threats of, or invoking, rape or sexual assault or disfigurement of women and girls online and offline.

The report recommends that, in keeping with the position that gendered law is required to address misogyny, the characteristic of 'sex' should not be added to the 2021 Act.

Purpose of consultation

The Scottish Government published its initial response to the report's findings in April 2022.

In that response, the Government accepted that the report's recommendations represent a new and necessary departure, in that they specify women and girls as requiring specific protection of the criminal law, and are pivotal in challenging society's tolerance of misogyny.

The response stated that the Government will consult on draft legislative provisions which give effect to the recommendations for criminal law reform contained in the report.

This approach has been taken in the light of experience of legislating in sensitive and novel areas of criminal law such as the domestic abuse offence. That experience clearly showed that in such areas, informed and insightful feedback is often best provided in response to the sight of specific draft criminal law provisions where possible. This is to allow the most detailed level of scrutiny by all those with an interest.

The timing of introduction of a final bill into the Scottish Parliament will be considered as part of wider legislative planning and the Government's future legislative programme will be set out in the Programme for Government in the usual way.

Insofar as possible, the approach that has been taken in developing the draft provisions has been to seek to implement as faithfully as practicable each of the specific recommendations made in the report.

However, the recommendations for reform to the criminal law are presented in the report at a high level and in a number of respects, the report does not set out in detail the criminal law policy underpinning its proposals at a level that provides a clear blueprint for developing specific provisions. There are also some areas where the process of developing draft provisions has led to a slightly different approach to that proposed in the report. Where that has happened, the difference in approach is explained.

A number of the issues on which we are seeking views on in the consultation are concerned with the detail of criminal law policy. We have sought as far as possible to present these in an accessible way. However, some of the issues explored in the consultation paper may be of interest primarily to those with a background in issues relating to criminal law and policy, especially as it relates to violence against women.