Reforming the criminal law to address misogyny: consultation

Chapter Two

Recommendation: An offence of Issuing Threats of, or Invoking, Rape or Sexual Assault or Disfigurement of Women and Girls online and offline

At the end of the chapter, there is a draft provision indicating how the Scottish Government have developed the recommendation into draft 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 draft provision before considering the questions.

What the report recommends

The report recommends making it a specific offence to issue threats of, or invoke, rape or sexual assault or disfigurement to women and girls. The report notes that while the majority of this conduct is likely to occur online, the offence should be capable of being committed both online and offline.

The report recommends that it should not be necessary to prove that the conduct had a particular impact on the person or people towards whom it was directed, nor should it be necessary to consider what the accused's intention was in determining whether the offence has been committed. This means there should be no need to prove that the accused intended to cause, or was reckless as to whether their communication would be likely to cause, for example, distress to its recipient. The conduct in and of itself should be sufficient for the offence to be committed.

Discussion

The report highlights the problem of issuing threats of, or invoking, rape, sexual assault or disfigurement against women and girls. They consider that such behaviour falls firmly within the report's definition of misogyny and recommend that a specific offence is created to criminalise threats of rape, sexually assault or disfigure directed at women and girls, and the invoking of these harms which they describe as "the use of the language of male violence, which is used to reinforce the subordinate status of women."

Consideration of the existing law

Some behaviour of the kind which this offence seeks to criminalise is likely to be criminal under the existing law. Making a direct and credible threat to physically assault or otherwise harm someone, including threats of rape, sexual assault or disfigurement, can be prosecuted using the common law offence of 'uttering threats'.

In practice, the common law offence of 'uttering threats' is rarely prosecuted and the kinds of threats described in the report are more likely to be prosecuted using the offence of 'threatening or abusive behaviour' at section 38 of the Criminal Justice and Licensing (Scotland) Act 2010. This makes it an offence for a person to behave in a 'threatening or abusive' manner where the behaviour would be likely to cause a reasonable person to suffer "fear or alarm". In contrast with the common law offence of 'breach of the peace' it can be committed in a public or a private place.

For the common law offence of uttering threats, the Stair Memorial Encyclopaedia 'The Laws of Scotland' states that the mens rea is "probably intention to cause fear and alarm either per se or with a view to obtaining the victim's complaint response to what is demanded. It will probably be inferred from the tenor of the threat.". The lack of certainty about the scope of the common law offence is perhaps reflected in the fact that few uttering offences are recorded each year.

Where threats are prosecuted using the offence of threatening or abusive behaviour, the person making the threat must either intend to cause the recipient(s) fear or alarm or, failing that, be reckless as to whether they will do so.

While there is no requirement for either offence that the accused intends to carry out the threat, fear of a threat being carried out is likely to be relevant to the question of whether the threat is likely to cause a reasonable person fear or alarm.

The new offence recommended by the report is different from the existing offences because there is no requirement that the perpetrator either intends their behaviour to cause, or is reckless as to whether their behaviour would be likely to cause, the recipient of the threat to experience fear or alarm.

On its own, this is unlikely to significantly change the circumstances in which making a threat of rape, sexual assault or disfigurement would amount to a criminal offence. This is because there are probably only limited circumstances in which a person can make a threat of, for example, rape which is likely to cause fear or alarm, where they are not, at least, reckless as to whether the threat is likely to cause fear or alarm.

However, a further important aspect of the offence which the report proposes is that it has no requirement for the threat to be likely to cause a reasonable person fear or alarm.

Taken together, these features make the offence proposed in the report significantly wider in scope than the existing law.

The extension of the criminal law to what the report describes as 'invoking' rape, sexual assault or disfigurement of women and girls represents a more significant extension of the existing criminal law.

At present, in some circumstances, making such comments might amount to an offence of 'threatening or abusive behaviour'. This would depend both on whether the court is satisfied that the comments could be characterised as 'threatening or abusive' and whether the communicating of the comments would, in the circumstances, be likely to cause fear or alarm to a reasonable person and that the sender was, at least, reckless as to whether their behaviour would be likely to have this effect.

Where this test is not met, if the message is sent using the internet, it may be possible to prosecute using the offence of 'improper use of a public electronic communications network' at section 127 of the Communications Act 2003, which criminalises sending messages which are grossly offensive or of an indecent, obscene or menacing character (though it is worth noting the maximum penalty of 6 months imprisonment is considerably lower than for the offence of threatening or abusive behaviour).

The report recommended creating an offence of public misogynistic harassment. As set out above, the draft offence to implement this recommendation that we are consulting on does not require a 'public' element. As such, conveying threatening or abusive messages concerning rape, sexual assault or disfigurement would be likely also amount to the proposed offence of misogynistic harassment. This would depend on the message being likely to cause fear, alarm, degradation, humiliation or distress to the recipient but the test is wider than that which applies in respect of the offence of threatening or abusive behaviour which applies only where the behaviour is likely to cause fear or alarm to a reasonable person.

Even if it is likely that much of the behaviour covered by the offence proposed in the report would amount to one or more of a number of existing criminal offences, it could be argued that it is helpful to legislate for a specific offence, either in order to be clear, including to victims, that such behaviour is criminal, or to enable the collection of accurate data about the extent of this behaviour, or both.

Question: Do you support the proposal to create a specific offence of 'threatening or abusive communications to women and girls which reference rape, sexual assault or disfigurement?

The offence

The offence on which we are consulting is one of 'threatening or abusive communications to women and girls which reference rape, sexual assault or disfigurement'. It is committed where a person knowingly conveys a message which is

• threatening or abusive or both to a person who is, or is presumed to be, a woman or girl; and
• the message makes reference to rape, sexual assault, disfigurement, violence likely to result in disfigurement, or a combination of those things.

What is meant by 'invoking'?

In considering the Working Group's recommendation, we reached the view that the use of the term 'invoking' of rape, sexual assault or disfigurement of women and girls did not make sufficiently clear exactly what the behaviour that the offence seeks to criminalise actually is. 'Invoke' is defined in the Merriam-Webster dictionary as meaning:

a: to petition for help or support

b: to appeal to or cite as authority

c: to call forth by incantation

d: to make an earnest request for

e: to put into effect or operation

f: to bring about or cause

It is not clear what exactly would amount to 'invoking' rape, sexual assault or disfigurement. It must mean something more than simply to refer to these terms. It is not the intention of the Working Group that it should be an offence to send any message to a woman or girl that refers to or relates to rape, sexual assault or disfigurement. Such a widely drawn offence could inadvertently criminalise, for example, someone organising a campaign against violence against women and girls or providing information to victims of rape or sexual assault.

In seeking to clearly define what it is that the Working Group wish the offence to criminalise, we have given careful consideration to the examples of the kinds of messages they are seeking to criminalise that they set out in the report:

• "someone should slash that pretty little face of yours you fucking bitch"
• "I'd love to watch you getting your fucking teeth kicked in, you slut"
• "You need to be raped"
• "Somebody should rape you"
• "#Iwouldnteven rape [woman's name]"
• "Anyone want to fuck [woman's name] with me?"
• "A good spit-roasting is what you need"

Some of these examples are direct threats of rape, sexual assault or disfigurement. Others, while not direct threats, can certainly be characterised as being threatening. However, we consider that what links all these examples is that they can be described as threatening or abusive (or both).

As such, the draft provision gives effect to the Working Group's recommendation by criminalising the conveying of a message which is threatening, or abusive, or both and makes reference to rape, sexual assault, disfigurement, violence likely to result in disfigurement or a combination of these things.

Question: Do you agree that with our approach to implementing the working group's recommendation that the offence is committed where a message is threatening or abusive, or both, and makes reference to rape, sexual assault or disfigurement?

Conveying a message

The kinds of circumstances in which such abusive messages referencing rape, sexual assault and disfigurement of women and girls are sent are not limited to circumstances in which the message is sent directly to the victim. In cases where the offence is committed online, in particular, the message may be posted on a website in circumstances where the person to whom the message relates is likely to see it otherwise be made aware of its existence. This is just as likely to have an adverse effect on the victim as if the message had been sent directly to them.

With this in mind, the offence has been drafted so that it is committed where a person conveys a message that is threatening or abusive to a person who is presumed to be a woman or girl. There is no requirement that the message must be sent directly to them, although it is proposed that there should be a defence of 'improbability' where there was no reason to believe the message would be seen on heard by the person in respect of whom it is threatening or abusive.

The term 'convey' is defined widely at section 1(3) so as to include saying, sending, directing, publishing, showing, playing, making available , demonstrating or otherwise communicating a message.

The term 'message' is also defined widely so as to include statements, comments, expressions whether verbal or written, recorded or unrecorded by words or representations – reflecting the different forms that such a message may take (spoken word, written word, still photograph or video, for example).

Definition of rape, sexual assault and disfigurement

The offence does not define the terms 'rape', 'sexual assault' and 'disfigurement'. It is considered that courts will be able to determine whether an act that is referred to is one of rape or sexual assault.

However, with regard to the question of what a threat of disfigurement, or a threatening or abusive message referencing disfigurement is, it is worth noting that it will not always be clear whether a threat of, or reference to, violence, is or is not a threat of disfigurement. Many threats of violence will carry an implied threat of disfigurement, even if the extent to which there is an explicit threat of disfigurement may vary. Compare for example:

• "I'm going to smash your face in"
• "I'm going to smash your pretty little face in"
• "I'm going to smash your pretty little face in so you look like Frankenstein's monster"

For this reason, we have provided that the offence is committed both where the message refers directly to disfigurement and where it refers to violence likely to result in disfigurement.

This does mean it could bring within the scope of the offence some threats of violence which are not intended primarily to be threats of disfigurement, but we consider that this is preferable to requiring the court to determine on a case-by-case basis whether or not, or to what extent, a threat of violence is or is not intended by the person conveying the message to be a threat of disfigurement.

An alternative approach would be to very narrowly frame the offence as one concerned only with explicit threats of disfigurement. However, it is considered that this would result in many threats of violence which are intended primarily to be threats of disfigurement being excluded from the scope of the offence on the grounds that they do not directly refer to the disfiguring consequences of the violence that is threatened.

The message does not have to threaten or refer to the rape, sexual assault or disfigurement of the person to whom it is sent. This ensures that a person cannot avoid prosecution by, for example, sending an image showing the rape, sexual assault or disfigurement of a third party which might in effect be a thinly veiled threat of these harms to the person to whom it has been sent.

Question: Do you have any comments on the approach taken in the draft offence to the harms of rape, sexual assault and disfigurement?

How the offence can be committed – section 1(1)-1(3)

The report recommended that the offence should be one of threatening or invoking rape, sexual assault or disfigurement of women and girls. The draft offence provides that the offence is committed where the accused conveys such a message to a woman or girl, irrespective of any belief the accused may have about that person's identity, or where the accused conveys the message to someone whom they presume to be a woman or girl.

This approach is likely to be of particular value in an online environment especially where many users are anonymous and/or use pseudonyms, a person sending such a message may not know the identity of the person with whom they are communicating. However, it may be that the very nature of the message that they have sent to them in itself demonstrates that they believed that the person to whom they had conveyed the message was a woman or girl. Equally, we do not think it should be a defence where a person conveys a message of rape, sexual assault or disfigurement to someone who is in fact a woman or girl that they believed the person with whom they are communicating to have been a man or boy.

Question: Do you have any comments on the approach taken in the draft offence as regards the two different ways in which the offence can be committed?

Defences – sections 2 and 3

Two defences are provided to the offence.

The first is a defence of 'reasonableness'. It is considered that a defence of reasonableness is important for this offence because of the absence of any need for the accused to have a particular intention in conveying a threatening or abusive message that refers to rape, sexual assault or disfigurement of a woman or girl. The defence may be relevant if, for instance, a person conveys such a message with the intention of making them aware that a third party has made such a threat against them.

The second is a defence of 'improbability'. This provides that it is a defence to the offence that the accused is able to show that there was no reason to believe that the statement would be seen or heard by the person to whom it relates.

The offence is concerned with sending threatening and abusive messages referring to the rape, sexual assault or disfigurement of women and girls. This is different to the situation where a person sends a message via, for example, a private communications channel such as e-mail to a third party with no expectation or reason to believe that the message would ever be seen by the person to whom it relates. Such behaviour, while potentially both misogynistic and distasteful, is not equivalent to conveying such a message in a way where it is either the accused's intention that the person to whom it relates will see it, or at the very least, it is possible that they may see it (e.g. because the message has been published on an internet site where it can be viewed by members of the public).

Question: Do you have any comments on the proposed defences to the offence?

The maximum penalty on conviction on indictment for this offence is 5 years imprisonment. This is in line with the existing offence of 'threatening or abusive behaviour' and with offences of indecent communication or coercing a person to view a sexual image, in the Sexual Offences (Scotland) Act 2009.

Question: Do you have any comments on the proposed maximum penalty of 5 years for the offence?

Question: Do you have any other comments on the proposed offence?

Draft provision

1. Offence of threatening or abusive communications to women and girls which reference rape, sexual assault or disfigurement

(1) A person commits an offence if the person knowingly conveys a message which—

(a) is threatening or abusive (or both) to a person who is or is presumed to be a woman or girl, and

(b) makes reference to—

(i) rape,

(ii) sexual assault,

(iii) disfigurement,

(iv) violence likely to result in disfigurement, or

(v) a combination of those things.

(2) For the purposes of subsection (1), it does not matter whether or not the rape, sexual assault or disfigurement mentioned in paragraph (b) of that subsection is of, or in relation, to the person mentioned in paragraph (a) of that subsection.

(3) In this section—  

"conveys" includes says, sends, directs, publishes, shows, displays, plays, makes available, demonstrates or otherwise communicates, as well as things that the person does,

"message" means a statement, comment or expression, whether verbal or written, recorded or unrecorded, by words or representations,

"presumed to be a woman or girl" means presumed to be a woman or a girl by the person conveying the message.

(4) 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 5 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 course of behaviour is not as described in subsection (1).

3 Defence of improbability

In proceedings for an offence under section 1(1), it is a defence for the person to show that there was no reason to believe that the statement would be seen or heard by the person mentioned in section 1(1)(a).