Reforming the criminal law to address misogyny: consultation

Chapter One

Recommendation: An offence of Public Misogynistic Harassment

At the end of the first part of this chapter and the second part of this chapter, there is a draft provision indicating how the Scottish Government have developed the recommendation into draft pieces of law. The text below provides a summary of what the report recommended, key issues in the development of the draft provision and questions. Readers may wish to consider the text below in conjunction with the relevant draft provision before considering the questions.

What the report recommends

The report recommends the creation of a new criminal offence of public misogynistic harassment. It recommends that it should be committed where a person engages in any sexual or abusive conduct which is likely to cause fear, alarm, humiliation, degradation or distress to a woman or women, where either the accused intends to cause that effect or is reckless as to the likely effect of the conduct.

The report recommends that the test of whether conduct is likely to cause fear, alarm, humiliation, degradation or distress to a woman or women should be objective and that it should not be necessary to prove that any woman or group of women actually suffered any of these effects and there should be no requirement that the conduct is directed towards a particular woman or group of women.

The report recommends that behaviour should be defined as being 'sexual' if a reasonable person would consider it to be sexual. The writers of the report note that the term 'abusive' is regularly interpreted by the courts and indicate that they do not think it requires further definition.

Approach taken in developing two separate offences

In considering the report's recommendation, we have come to the view that the offence which the report proposes to create is seeking to criminalise two quite different forms of behaviour.

The first can best be described as misogynistic harassment. That is to say misogynistic behaviour that is directed at a specific woman or girl, or group of women or girls, which amounts to harassment of that woman or girl, or group of women or girls.

Examples of behaviour of this kind cited in the report would include shouting sexually abusive remarks at a woman on the street, deliberately rubbing up against a woman in a crowded place, showing extreme pornography on a phone to a group of women in a nightclub or using abusive language to a girl who does not want to be 'chatted up'.

The second type of behaviour which the report considers should be covered by their proposed offence can be described as misogynistic behaviour which is not necessarily directed at any particular identifiable victim or group of victims.

Examples of behaviour of this kind cited in the report would include watching pornographic material in a public place where it is clearly visible or audible, or having loud, graphic sexual conversations about women in a public place where they can be heard by others. While it may well be that specific identifiable victims were caused to suffer fear, alarm, degradation, humiliation or distress by the behaviour, the behaviour is not directed at them by the perpetrator. It can best be thought of as a kind of public order offence like the offence of threatening or abusive behaviour, but specifically concerned with misogynistic behaviour.

We consider that these two different types of behaviour are sufficiently different that the working group's recommendation for an offence of 'public misogynistic harassment' can best be implemented by the creation of two distinct offences: an offence of misogynistic harassment and one of misogynistic behaviour.

This allows for better clarity as to the conduct being criminalised through the structure of each offence and for any statutory defences that might be required to be appropriately tailored to the specific conduct that each offence is intended to criminalise. These two proposed offences are considered in more detail below.

An offence of misogynistic harassment

This offence is intended to criminalise behaviour which is misogynistic and amounts to harassment of a particular person or group of people.

The structure of this offence is similar to that used for existing offences such as stalking at section 39 of the Criminal Justice and Licensing (Scotland) Act 2010) and abuse of a partner or ex-partner at section 1 of the Domestic Abuse (Scotland) Act 2018. It sets out a five-part test for when the offence is committed. The offence of misogynistic harassment is committed where the accused person:

• behaves in a manner that is threatening, sexual or abusive (or a combination of those things); and
• the behaviour is directed at a particular person or group of people; and
• it is so directed at that person or group of people by reason of their being, or one or more members of the group being, or presumed to be, a woman or girl; and
• a reasonable person would consider that the behaviour would be likely to have the effect of causing the person or a member of the group to suffer, fear, alarm, degradation, humiliation or distress; and
• the accused either intends their behaviour to have one of these effects, or else is reckless as to whether their behaviour is likely to have one or more of these effects on that person (there is no requirement that the behaviour must actually have this effect).

Requirement one - behaves in a manner that is threatening, sexual or abusive (or a combination of those things)

The first requirement is that the accused must behave in a manner that is threatening, abusive or sexual. The report did not recommend inclusion of 'threatening' behaviour in the offence and it might be argued that the great majority of behaviour that is 'threatening' would also be 'abusive'. However, we consider that it is possible that 'threatening' behaviour might not automatically be regarded as 'abusive'. It is worth remembering that the offence of 'threatening or abusive behaviour' refers both to 'threatening' and 'abusive' behaviour, which would not be necessary if 'threatening' behaviour could always be characterised as being abusive.

The inclusion of behaviour that is 'sexual', distinct from behaviour that is 'threatening' or 'abusive' reflects the fact that a great deal of misogynistic harassment experienced by women and girls is sexualised in nature. It is worth noting that all of the examples cited at page 58 of the report as being criminalised by the proposed offence have a 'sexual' element. While we think that much of this behaviour could also be described as 'abusive', including behaviour that is 'sexual' helps to ensure that the sexualised harassment will be captured by the offence without the requirement for the court to be satisfied that the behaviour is also abusive or threatening (providing, of course, that the other four tests set out above are met).

Requirement two - the behaviour is directed at a particular person or group of people

The second requirement restricts the offence to behaviour that can be characterised as harassment of either a person or group of people.

Requirement three – the behaviour is so directed at that person or group of people by reason of their being, or one or more members of the group being, or presumed to be, a woman or girl

The third requirement has been included in order to restrict the scope of the offence to behaviour that can be characterised as being misogynistic.

The report does not specifically state that there should be any requirement that the behaviour amounting to the offence must be misogynistic in character. However, we consider that not all behaviour that is threatening, sexual or abusive and likely to cause fear, alarm, distress, degradation or humiliation to a woman or girl (though not, necessarily, only a woman or girl) where the accused is at least reckless as to whether their behaviour would have that effect can necessarily be described as 'misogynistic'.

For example, if someone behaves in, say, a threatening way towards a woman or girl in the course of a dispute about money or service provided in a restaurant, such behaviour may not necessarily be misogynistic, and, depending on the circumstances of the particular case, it may be equally likely to be directed at a man or boy.

We consider that the key difference between behaviour that amounts to harassment that may be equally likely to be directed at men and women and boys and girls and harassment that is misogynistic in character is that it is behaviour that is directed at the victim, at least in part, because they are a woman or girl.

The provision at section 1(4) states that references to women and girls include references to women and girls "of a particular description or who are member of a particular group." It is intended to be a measure to prevent those accused of an offence being able to say that the behaviour was not directed at the victim because she was a woman, but because she was a particular type of woman or belonged to a particular sub-set or group of women. This reflects the Working Group's report which made clear that the way in which behaviour that stirs up hatred against women and girls manifests itself is usually directed at particular subsets of women and girls. We consider that the same issue arises with behaviour that amounts to misogynistic harassment of a woman or girl. The report states:

"It should be noted that often this stirring up of hatred presents as being hatred of a particular type of woman – a noisy woman, a successful woman, an opinionated woman. But the crime is about female identity. It is no defence to say "I only hate certain kinds of women – feminists, fat women or unfeminine women… Antagonism towards particular "kinds" of women ultimately denies the humanity of women as a whole."

This test is causation-based. Under it, it is immaterial what motivated the offender. It need only be shown that he would not have subjected a man to the same behaviour. It is worth noting that a test of this kind was recommended by the Law Commission for England and Wales as regards their proposed offence of harassment on grounds of disability.

Requirement four – a reasonable person would consider that the behaviour would be likely to have the effect of causing the person or a member of the group to suffer, fear, alarm, degradation, humiliation or distress

The fourth requirement provides for a list of effects relevant to the operation of the offence which is as is proposed in the report.

It is a longer list of effects than that used in other similar offences which reflects the policy intent of capturing a wider range of behaviour.

This set of effects is intended to ensure that the offence can be used to prosecute behaviour directed at women and girls that is likely to cause a form of harm. If the behaviour is not likely to cause any of these harms, the offence is not committed.

The effects reflect the sort of responses that the Working Group identify in their report as being experienced by women subjected to misogynistic abuse, taking particular account of responses received to the Working Group's Lived Experiences of Misogyny in Scotland survey.

It is worth noting there is a range of existing Scots law offences that may be committed when the accused engages in behaviour that has or is likely to have one or more of these effects.

For example, the offence of "threatening or abusive behaviour" criminalises behaviour that is threatening or abusive and likely to cause a reasonable person to suffer fear or alarm. Certain sexual offences contained in the Sexual Offences (Scotland) Act 2009 criminalise behaviour that is intended to cause the victim to feel humiliation, alarm or distress. And the offence of 'abuse of a partner or ex-partner' at section 1 of the Domestic Abuse (Scotland) Act 2018 provides a definition of 'abusive behaviour' that includes behaviour which is intended to have the effect of, or which a reasonable person would think likely to have the effect of, frightening, humiliating, degrading, or punishing the victim.

This test, like that used for the offences of stalking and abuse of a partner or ex-partner, is focused on whether the accused's behaviour would be likely to cause one of these effects on the specific individual. As such, it ensures that where a perpetrator deliberately targets an especially vulnerable individual, they do not escape criminal liability because a hypothetical 'reasonable woman or girl' would not be likely to suffer one of the listed effects.

It is worth noting there is no need for the behaviour to actually have any of the relevant effects under requirement four. The test is whether a reasonable person would consider the behaviour likely to cause one or more of these harms to the victim.

Courts require some basis on which to decide whether an offence has been committed and in the absence of a 'reasonable person' test, the court would have to take into account the subjective reaction of the victim and corroborated evidence of this would be required. A further disadvantage of a subjective approach is that where a victim is stoical and does not exhibit, for example, any obvious fear, alarm or distress (even where it would be quite reasonable for them to do so) a court may not feel able to convict. This may be even more of an obstacle where the behaviour causes degradation or humiliation and the victim may not react outwardly at all.

Requirement five - the accused either intends their behaviour to have one of these effects under requirement four, or else is reckless as to whether their behaviour is likely to have one or more of these effects under requirement four on that person (there is no requirement that the behaviour must actually have this effect).

The fifth requirement is similar to the test used in offences of stalking and abuse of a partner or ex-partner.

The offence does not require that the accused must intend to cause one of the listed harms to the victim. However, the requirement that the accused must be at least reckless as to whether their behaviour would be likely to cause one of these effects. This means that if the accused could not reasonably have expected or known that their behaviour would be likely to have such an effect (for example, because of a particular vulnerability of the complainer of which the accused was entirely unaware) then they would not commit the offence.

Question: Do you support the proposal to create an offence of 'misogynistic harassment' which relates to harassment of an identified victim or victims?

Question: Do you have any comments on the list of effects on the victim (fear, alarm, degradation, humiliation and distress) that trigger the offence being committed?

Should the offence be restricted to public places?

The report recommends that the offence should be committed where the behaviour is 'public'. The report notes

"A 'public place' is generally determined by the Courts. But it would include, for example, public transport, restaurants, clubs, bars, foyers and reception areas of hotels and public venues, as well as online platforms. Some places of work may be deemed 'public'.

It is worth noting that criminal offences which are committed in public places will usually, if not always, provide for a statutory definition of 'public place' setting out clearly where the offence can and cannot be committed.

We note that the kinds of behaviour intended to be criminalised by the offence of misogynistic harassment might be more likely to occur in private places. However, it is not clear why harassment occurring, for example, in a private workplace should not be criminal if exactly the same behaviour would amount to a criminal offence if it happened on the street, given that the same ill-effects of the behaviour could arise.

A similar position arises as regards misogynistic abuse occurring in an online environment. The distinction between public and private online spaces is not entirely clear-cut. Material posted on, for example, the 'comments' section of an online newspaper might be regarded as 'public' while messages sent via e-mail or a messaging application would probably be regarded private. Material posted on a website which is accessible only to people who are 'members' of that site falls somewhere between these two poles.

However, irrespective as to the circumstances in which an online space might be considered to be a 'public place', it is not clear that misogynistic abuse sent directly to someone using a private messaging application should be regarded as being any less serious, or likely to harm the person to whom it is sent, than misogynistic abuse published in a publicly accessible forum. Indeed, it might reasonably be argued that the reverse is true as such messages may be harder to ignore and amount to a greater invasion of a person's privacy in making a person feel like they have been targeted directly.

For these reasons, we consider that the offence of misogynistic harassment should be capable of being committed in all places with no distinction between what might be described as public spaces and private spaces.

Question: Do you agree that the offence of misogynistic harassment should be capable of being committed in all places?

Penalties – section 1(6)

The report recommends that the maximum penalty for its proposed offence of public misogynistic harassment should be 7 years imprisonment on conviction on indictment. The report does not set out the rationale for the proposed maximum penalty. However, it may be that this penalty has been chosen to align the maximum penalty for this offence with the maximum penalty for the offence of racially aggravated harassment at section 50A of the Criminal Law (Consolidation) (Scotland Act 1995 (and re-enacted in the Hate Crime and Public Order (Scotland) Act 2021).

We have an open mind on what might an appropriate maximum penalty for the offence. Any penalty that is provided is of course a maximum and discretion would sit with the court to determine an appropriate sentence in any given case within whatever maximum sentence was provided for.

Question: Do you have any views on the proposed maximum penalty of 7 years imprisonment for the offence of misogynistic harassment?

Defences – section 2

As with the existing offences concerning stirring up hatred and the proposed offence of stirring up hatred against women, we have provided for a defence to the offence of misogynistic harassment that the accused's actions were, in the particular circumstances, reasonable.

A 'reasonableness defence' is provided for other offences which potentially cover many different kinds of behaviour, such as threatening or abusive behaviour, stalking and abuse of a partner or ex-partner, where it is not possible to exhaustively list all the different ways that the offence might be capable of being committed.

While it may be difficult to envisage circumstances in which behaviour meeting each of the five tests set out above 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 misogynistic harassment, they are not criminalised by the offence.

The draft offence provides that there is an evidential burden placed on the accused to provide sufficient evidence to the court to raise an issue as to whether the defence is established. That means that if the accused wants to make use of this defence, they have to provide evidence to the court about why their behaviour was reasonable. If they do this, it is for the prosecutor to prove beyond reasonable doubt that their behaviour was not, in fact, reasonable.

Question: Do you have any comments about the inclusion of a reasonableness defence to the offence of misogynistic harassment?

Question: Do you have any other comments on the offence of misogynistic harassment?

Draft provision

1. Offence of misogynistic harassment

(1) A person ("A") commits an offence if—

(a) A behaves in a manner which is threatening, sexual or abusive (or a combination of those things),

(b) the behaviour is directed at a particular person or particular group of people,

(c) the behaviour is so directed by reason of the person or one or more members of the group being (or being presumed by A to be) a woman or a girl,

(d) a reasonable person would consider that the behaviour would be likely to cause the person or a member of the group who is (or is presumed by A to be) a woman or a girl to suffer—

(i) fear,
(ii) alarm,
(iii) degradation,
(iv) humiliation, or
(v) distress, and

(e) A intends by the behaviour to cause a woman or girl harm of a type mentioned in paragraph (d) or is reckless as to whether the behaviour has that effect.

(2) Behaviour—

(a) includes behaviour of any kind, and in particular, things that A says, displays, shows, plays or otherwise communicates, as well as things that A does,

(b) may consist of—

(i) a single act, or
(ii) a course of conduct.

(3) For the purposes of subsection (1)(a), behaviour is sexual if a reasonable person would consider—

(a) the behaviour, or

(b) where the behaviour includes communicating, the content or material being communicated, to be sexual.

(4) In this section, a reference to women and girls (however expressed) includes a reference to women or girls (or both)—

(a) of a particular description or who are members of a particular group,

(b) who are presumed by A to be of a particular description or members of a particular group.

(5) It is immaterial whether or not the behaviour is also (to any extent) directed at the person or group because of any other factor.

(6) A person who commits an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both), or

(b) on conviction on indictment, to imprisonment for a term not exceeding 7 years or a fine (or both).

2 Defence on grounds of reasonableness

(1) In proceedings for an offence under section 1(1), it is a defence for A to show that the behaviour was reasonable in the particular circumstances.

(2) That is to be regarded as shown if—

(a) evidence adduced is enough to raise an issue as to whether the behaviour is as described in subsection (1), and

(b) the prosecution does not prove beyond reasonable doubt that the behaviour is not as described in subsection (1).

An Offence of Misogynistic Behaviour

This offence is intended to criminalise misogynistic behaviour that is not directed at a particular person or group of people and can be seen as a 'public order' offence concerned specifically with misogynistic behaviour.

This offence is committed where the accused person:

• behaves in a manner which is sexual or abusive (or both); and
• the behaviour is motivated (wholly or partly) by contempt or malice and ill-will towards women and girls or of a character such that a reasonable person would consider it to be contemptuous of women and girls; and
• the behaviour would be likely to cause a reasonable woman or girl to suffer fear, alarm, degradation, humiliation or distress; and
• the person intends by their behaviour to cause a woman or girl one of these effects, or else is reckless as to whether their behaviour has that effect.

The structure of this offence is somewhat similar to the existing offence of 'threatening or abusive behaviour at section 38 of the Criminal Justice and Licensing (Scotland) Act 2010.

There are four requirements for the offence to be committed.

The first requirement is that the accused must behave in a manner that is sexual or abusive. In contrast with the 'misogynistic harassment' offence, as this offence is not concerned with behaviour directed at a specific victim, we do not consider that it is logical to make provision relating to 'threatening' behaviour as we think this would always have to be directed at someone – the person who was threatened.

The second requirement is that the behaviour must either be motivated by contempt for or malice and ill-will towards women and girls, or else that it is of a character such that a reasonable person would consider it to be contemptuous of women and girls. This is intended to restrict the scope of the offence to behaviour that can be characterised as being misogynistic.

There is provision at section 1(5), which is equivalent to the provision at section 1(4) of the misogynistic harassment offence, which provides that references to women and girls include women and girls of a particular description or who are members of a particular group. As with that provision, it is intended to ensure that the offence is committed where the accused person is engaging in behaviour which is motivated by contempt or malice and ill-will towards, or is of a character which is contemptuous of, a particular type of woman or members of a particular sub-set or group of women.

This test is different from the test used for the offence of 'misogynistic harassment', reflecting the fact that the behaviour is not directed at any particular victim. It is intended to distinguish between behaviour that may be abusive but which is not obviously misogynistic, and behaviour which is misogynistic in nature.

An example of behaviour that may be abusive but which is not obviously misogynistic may be two groups of rival football fans behaving in an abusive way towards each other where women and girls are present, such that women and girls (and men and boys) present may experience fear or alarm.

What the offence is intended to capture instead is behaviour which is misogynistic in nature, such as watching hardcore pornography in a public place such as bus or train, where women and girls are likely to see or hear it.

The third requirement is that the behaviour would be likely to cause a reasonable woman or girl to suffer fear, alarm, degradation, humiliation or distress. The list of 'effects' is the same as that which is proposed for the offence of 'misogynistic harassment' and is in line with what was proposed in the working group's report. This test differs from that used in the misogynistic harassment offence because the court is not required to consider whether a specific identifiable victim would be likely to suffer one of these effects. That being said, in deciding whether the offence has been committed, the court would require to consider whether there was any woman or girl present who could conceivably have suffered these effects.

The fourth requirement is that the person either intends by their behaviour to cause one of the listed effects to a woman or girl, or that they are reckless as to whether their behaviour has that effect. This is the same test as is proposed for the offence of misogynistic harassment.

Question: Do you support the proposal to create an offence of misogynistic behaviour which does not require that the behaviour is directed at a specific victim?

Question: Do you have any comments on the list of effects on the victim (fear, alarm, degradation, humiliation and distress) that trigger the offence being committed?

Should the offence be restricted to public conduct?

The report recommends that the offence should be committed where the behaviour is 'public'. The report notes

"A 'public place' is generally determined by the Courts. But it would include, for example, public transport, restaurants, clubs, bars, foyers and reception areas of hotels and public venues, as well as online platforms. Some places of work may be deemed 'public'."

In contrast with the offence of 'misogynistic harassment', it is perhaps less clear-cut whether the proposed offence of misogynistic behaviour, which is concerned with behaviour that is not directed at any specific person or group of people should extend to private as well as public places.

It is expected that in the great majority of cases, behaviour amounting to an offence under this section would be committed in a public place (for example, watching pornography on a bus where it can be seen or heard by other members of the public, or having graphic sexual conversations on a train where others will hear them).

However, it is possible that behaviour of this kind could occur in private places in circumstances where a criminal law response may be appropriate. This could include, for example, misogynistic abuse occurring at a large party in someone's home or conceivably someone engaging in misogynistic behaviour in their home which is intended to be visible or audible from a public place.

For these reasons, the proposal is that the offence of misogynistic behaviour should also be capable of being committed in all places i.e., both public and private spaces.

Question: Do you agree that the offence of misogynistic behaviour should be capable of being committed in both private and public places?

Penalties - section 1(6)

The report recommends that the maximum penalty for its proposed offence of public misogynistic harassment should be 7 years imprisonment on conviction on indictment. The report does not set out the rationale for the proposed maximum penalty. However, it may be that this penalty has been chosen to align the maximum penalty for this offence with the maximum penalty for the offence of racially aggravated harassment at section 50A of the Criminal Law (Consolidation) (Scotland Act 1995 (and re-enacted in the Hate Crime and Public Order (Scotland) Act 2021.)

The report did not, of course, consider whether a different penalty should apply for offending which is not directed at a specific identifiable victim. For the purpose of the consultation, it is provided that this shall be the maximum penalty for both the offence of misogynistic harassment and the offence of misogynistic behaviour. Both of the offences potentially cover a wide range of offending behaviour.

However, it could be argued that the offence of misogynistic harassment, which is concerned with behaviour targeted at a specific identifiable victim or group of victims, has the potential to involve more serious offending behaviour than the offence of misogynistic behaviour and views are welcomed on whether this should be reflected in the maximum penalties available to the courts for each of the offences.

Question: Do you have any views on the proposed maximum penalty of 7 years imprisonment for the offence of misogynistic behaviour?

Defences – section 2

As with the existing offences concerning stirring up hatred and the proposed offence of stirring up hatred against women, a defence is provided to the offence of misogynistic behaviour that the accused's actions were, in the particular circumstances, reasonable.

As with the offence of 'misogynistic harassment', a 'reasonableness defence' is provided for other offences which potentially cover a wide swathe of different kinds of behaviour, such as threatening or abusive behaviour, stalking and abuse of a partner or ex-partner and it is not possible to exhaustively list all the different ways that the offence might be capable of being committed.

While it may be difficult to envisage circumstances in which behaviour meeting each of the four tests set out above 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 misogynistic behaviour, they are not criminalised by the offence.

Question: Do you have any comments about the inclusion of a reasonableness defence to the offence of misogynistic behaviour?

Freedom of expression – section 3

In keeping with the proposed offence of 'stirring up hatred against women and girls' which does not require behaviour which is targeted at a specific identifiable victim, provision has been made protecting freedom of expression reflecting the nature of the offence as not requiring to be targeted at a specific identifiable victim.

The draft misogynistic behaviour offence is limited to behaviour which is sexual or abusive and likely to cause fear, alarm, degradation, humiliation or distress to a reasonable woman or girl.

The purpose of the offence is not to interfere with a person's ability to freely debate issues concerning, or relating to, women and girls. However, in light of concerns raised during the passage of the 2021 Act, the approach has been taken to make bespoke provision, similar to that contained within section 9 of the 2021 Act, which makes clear for the avoidance of doubt, that behaviour or material is not to be taken to be sexual or abusive solely on the basis that it involves or includes discussion or criticism of issues relating to women and girls.

This ensures, for the avoidance of doubt, that criticism of, for example, equal pay for women or the right to maternity leave would not, in and of itself, be considered to be abusive. Something more is required for any such discussion or criticism to be taken to be sexual or abusive. For example, if it were proved that a reasonable person would consider that the criticism was expressed in a sexual or abusive way, or the material containing the criticism also included other sexual or abusive comments, it could still be taken to be behaviour or material that is sexual or abusive and therefore satisfy the first element of the offence. For the offence to be committed, however, the other elements of the offence would also have to be proved beyond reasonable doubt.

Question: Do you have any comments about the inclusion of a freedom of expression provision setting out, for the avoidance of doubt, that certain behaviour does not constitute an offence of misogynistic behaviour?

Question: Do you have any other comments on the offence of misogynistic behaviour?

Draft provision

1 Offence of misogynistic behaviour

(1) A person commits an offence if—

(a) the person behaves in a manner which is sexual or abusive (or both),

(b) the behaviour is—

(i) motivated (wholly or partly) by contempt, or malice and ill-will, toward women and girls, or
(ii) of a character such that a reasonable person would consider it to be contemptuous of women and girls.

(c) the behaviour would be likely to cause a reasonable woman or girl to suffer—

(i) fear,
(ii) alarm,
(iii) degradation,
(iv) humiliation, or
(v) distress, and

(d) the person intends by the behaviour to cause a woman or girl harm of a type mentioned in paragraph (c) or is reckless as to whether the behaviour has that effect.

(2) Behaviour—

(a) includes behaviour of any kind, and in particular, things that the person says, displays, shows, plays or otherwise communicates, as well as things that the person does,

(b) may consist of—

(i) a single act, or
(ii) a course of conduct.

(3) For the purposes of subsection (1)(a), behaviour is sexual if a reasonable person would consider—

(a) the behaviour, or

(b) where the behaviour includes communicating, the content or material being communicated, to be sexual.

(4) The harm mentioned in subsection (1)(c) need not be likely to be exclusively suffered by women and girls.

(5) In this section, a reference to women and girls (however expressed) includes a reference to women or girls (or both)—

(a) of a particular description or who are members of a particular group,

(b) who are presumed by the offender to be of a particular description or members of a particular group.

(6) A person who commits an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both), or

(b) on conviction on indictment, to imprisonment for a term not exceeding 7 years or a fine (or both).

2 Defence on grounds of reasonableness

(1) In proceedings for an offence under section 1(1), it is a defence for the person to show that the behaviour was reasonable in the particular circumstances.

(2) That is to be regarded as shown if—

(a) evidence adduced is enough to raise an issue as to whether the behaviour is as described in subsection (1), and

(b) the prosecution does not prove beyond reasonable doubt that the behaviour is not as described in subsection (1).

3 Protection of freedom of expression for the purposes of the offence of misogynistic behaviour

For the purposes of section 1, behaviour is not to be taken to be sexual or abusive solely on the basis that it involves or includes discussion or criticism of matters relating to women and girls.