Reforming the criminal law to address misogyny: consultation

Chapter Three

Recommendation: A new Statutory Aggravation relating to Misogyny, where crimes that are not excluded are aggravated by misogyny

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 the creation of a new statutory aggravation relating to misogyny to enable a judge to take account of the misogynistic nature of the conduct when sentencing. It recommends that the aggravation should define misogyny as being 'prejudice, malice or contempt towards women.' It proposes the addition of 'contempt', which is not featured in the existing statutory 'hate crime' aggravations, because they consider that it speaks to denigration, disrespect or scorn towards women which holds them in a subordinate position.

It notes that the existing 'hate crime' aggravations extend to circumstances where the perpetrator targets a victim of a crime because of their perceived membership of a group as well as their actual membership of a group and consider that the misogyny aggravation should operate in the same way. This would mean that if a person is targeted by an offender because of their hatred of women and the perpetrator perceives them to be a woman, then the aggravation could still be libelled even if the victim is not, in fact, a woman.

The report proposes that there should be a carve-out of crimes where the misogynistic element is already recognised and will therefore already be taken into account when sentencing the offender. It states that these crimes should be rape, other sexual offences and domestic abuse, defined as either the offence of 'abuse of a partner or ex-partner' at section 1 of the Domestic Abuse (Scotland) Act 2018 or any offence in respect of which the 'domestic abuse' aggravation at section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 has been proven.

The report recommends that the court should be able to take into account the aggravation when sentencing and record what difference, if any, the aggravation made. Where there is no difference, the court should state the reasons.

Discussion

Statutory Sentencing Aggravations

There are a number of statutory aggravations currently in effect in Scots law.

For example, the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 provides for a statutory aggravation that an offence is aggravated by involving abuse of a person's partner or ex-partner where the person, in committing the offence, either intended to cause, or was reckless as to whether their actions would cause, physical or psychological harm to their partner or ex-partner.

The 2021 Act provides for a statutory aggravation by prejudice where the offender demonstrates malice or ill-will based on the victim's race, religion, sexual orientation, transgender identity, age, disability or variations in sex characteristics or where the offence is motivated by such malice and ill-will.

In either of these examples, the underlying offence to which the aggravation applies could, for example, be an assault or behaviour amounting to the offence of 'threatening or abusive behaviour'. While evidence of the offence requires to be corroborated, evidence from a single source is sufficient to establish the aggravation.

Statutory aggravations are useful in identifying and recording the nature of, or motivation for, a particular offender's behaviour. For example, that an offence of assault or threatening or abusive behaviour was aggravated by amounting to abuse of the offender's partner or ex-partner, or an offence of assault was aggravated because it was motivated by prejudice against, for example, the victim's race, religion or sexual orientation. The fact that an offence was so aggravated will be recorded on an offender's criminal record and, subject to the usual rules governing the disclosure of information about spent convictions, may be disclosed when considering, for example, a person's suitability for a job or voluntary role.

Statutory aggravations also provide a formal means of ensuring that where an offence has been so aggravated, this is accounted for in determining the appropriate sentence for the offender. The fact that an offence is aggravated in this way does not change the maximum penalty that is available to the court in sentencing an offender, but where an offence is proven to have been aggravated in this way, the court must take that into account when determining sentence.

The proposed statutory aggravation in relation to misogyny is similar in its purpose to the 'hate crime' aggravations contained in 2021 Act. In both cases, the aggravation will apply where the offender demonstrated, or was motivated by prejudice in committing the offence.

Lord Bracadale's Independent Review of Hate Crime

Lord Bracadale's Final Report on his Independent Review of Hate Crime Legislation in Scotland recommended the creation of a new statutory aggravation of 'gender hostility'. The report said:

" I…am recommending a new statutory aggravation based on gender hostility following the pattern used in the existing statutory aggravations for race, religion, disability, sexual orientation and transgender identity. Where an offence is committed, and it is proved that the offence was motivated by hostility based on gender, or the offender demonstrates hostility towards the victim based on gender during, or immediately before or after, the commission of the offence, it would be recorded as aggravated by gender hostility."

However, when the Scottish Government consulted on the proposal for an aggravation of 'gender hostility' contained in Lord Bracadale's report, a number of women's organisations were strongly opposed to this approach, calling for the development of a standalone offence for misogynistic harassment outwith hate crime legislation. They were concerned that creating a gender aggravation would lead to a failure to deal effectively with violence against women and girls, and they were not convinced that the hate crime framework provides an appropriate model for dealing with gender-based violence. In view of this, the Hate Crime and Public Order (Scotland) Bill did not make provision for a statutory aggravation of 'gender hostility'.

The 2021 Act contains a power to add 'sex' to the list of statutory aggravations as a characteristic. Baroness Kennedy's Working Group was asked to consider whether 'sex' should be added to the list of characteristics in respect of which the provisions in the 2021 Act have effect.

The report concluded that a 'sex' aggravation should not be added to the 2021 Act. The report notes that there is no pervasive male-sex equivalent to misogyny and adding 'sex' to the 2021 Act would not be in keeping with the report's overall approach that specific, gendered laws are required to protect women from misogynistic behaviour.

The report instead recommends the creation of a statutory aggravation relating to misogyny. It is similar in its purpose to the hate crime aggravations contained in the 2021 Act. In both cases, the aggravation will apply where the offender has demonstrated, or was motivated by, prejudice in committing the offence. However, the report recommends that the aggravation should relate specifically to misogyny rather than being 'gender neutral' and the report also recommends using a slightly different test for determining whether behaviour was motivated by, or demonstrates, prejudice. This is considered further below.

Question: Do you support the recommendation that there should be a statutory sentencing aggravation relating to misogyny?

The test for determining whether an offence is aggravated by misogyny - sections 1(1)-1(4)

Whilst the report defines misogyny for the purposes of the aggravation, it does not state the precise relationship required between the offending behaviour and the offender's misogyny. The approach adopted in the draft legal provision, which appears at the end of this chapter, follows the formulation of the statutory aggravation in section 1 of the 2021 Act: an offence is aggravated by misogyny where the offender demonstrates the requisite mindset towards the particular victim based on her being a woman or girl or is motivated by the requisite mindset toward women and girls.

As with the aggravations in the 2021 Act, there are two ways that this test can be met. The first is that, where there is a specific victim of the offence, the offender demonstrates contempt or malice and ill-will towards the victim and the contempt or malice and ill-will is based in the victim being or being presumed to by the offender to be a woman or girl. The second is that, whether or not there is a specific victim of the offence, the offence is motivated, wholly or partly, by contempt or malice and ill-will towards women and girls.

The provision at section 1(4) ensures that the aggravation applies not only where the offender demonstrates or is motivated by contempt for or malice and ill-will towards women and girls, generally, but also where they are motivated by contempt for malice and ill-will towards a particular group of women and girls or women and girls of a particular description – e.g. outspoken women, or women who dress conservatively or provocatively.

The report advises that the aggravation defines misogyny as "prejudice and/or malice and/or contempt towards women". The approach that is taken in the draft provision is slightly different. It does not define misogyny as such but uses the report's definition of misogyny as an articulation of the mindset that needs to be present for the aggravation to apply. The draft provision does not refer to 'prejudice'. The reason for this is that 'prejudice' is an umbrella term which can be used to generally describe the negative feelings about women and girls that may motivate a person to commit a criminal offence or be demonstrated by a person in committing a criminal offence but which is not sufficiently specific to describe the necessary mindset. It is worth noting that while the provision at section 1 of the 2021 Act is titled 'Aggravation of offences by prejudice', the term 'prejudice' is not used in the test that determines whether an offence is aggravated in this way.

While prejudice is wider in its meaning than 'malice', 'ill-will' or 'contempt' in that it can encompass discriminatory views that are 'milder' than 'malice', 'ill-will' or 'contempt' (e.g. a belief that women are not as suited as men to certain roles in society or the workplace) it doesn't appear that such beliefs, on their own, could motivate or be demonstrated by a person committing a criminal offence, without there also being malice etc. present.

The definition recommended in the report differs from the existing statutory 'hate crime' aggravation in that it incorporates reference to "contempt" in addition to "malice and ill-will". The report states that

"…We add 'contempt' (which is not a feature of the traditional hate crime framework) as it speaks to denigration, disrespect or scorn towards women, which holds them in a subordinate position."

It is not immediately obvious that extending the scope of the aggravation to include contempt has a significant practical impact as regards when the aggravation could be proven. Before the aggravation can become relevant, the accused must commit a criminal offence. It is likely that there will be few circumstances in which a person committing a criminal offence might be said to demonstrate 'contempt' for , but not 'malice or ill-will' towards, the victim, because they were a woman or girl, particularly given the type of offences which are to be excluded from the scope of the aggravation.

However, it might enable the aggravation to be used to deal with certain kinds of stalking behaviour where the offender does not demonstrate overt malice or ill-will but their behaviour could be said to demonstrate contempt for the victim based on their being a woman or girl.

It might also be helpful where an offender assaults or threatens a male victim of a crime because of, for example, their support for women's rights. In such circumstances, the offender's malice and ill-will would appear to be directed at the (male) victim of the offence, but where it is proven that they attacked the (male) victim because of their support for women's rights, it might be argued that they were motivated by contempt towards women and girls.

It should be noted that, in contrast with the aggravation provisions at section 1 of the 2021 Act, this statutory aggravation does not explicitly extend to persons associated with women and girls in the same way that the 2021 Act provision extends to people associated with the groups covered by the aggravation. The reason is that, in contrast with the situation that may pertain to many of the characteristics covered by the 2021 Act provision, almost everyone, whether or not they are themselves a woman or girl, will have some degree of association with women or girls.

The offence could be committed against a man or boy whom the perpetrator had mistakenly believed to be a woman or girl. However, in the event that a person commits a criminal offence against someone whom they knew to be a man or boy and it can be proven that they were motivated to do so by contempt, malice or ill-will towards women and girls (for example, because the victim was targeted as a high profile supporter of women's rights), the misogyny aggravation could apply.

The report does not specifically recommend that 'ill-will' be included within the definition of the aggravation. However, this term is used in all the existing statutory 'hate crime' aggravations and we consider the term is well-understood by the courts. The draft aggravation therefore uses a 'test' which refers to 'contempt, or malice or ill-will' and therefore allows for two possible alternative but not necessarily mutually exclusive mindsets.

Question: Do you agree with the approach contained in the draft provision that an offence is aggravated in the following two situations; namely if:

• the offender demonstrates contempt, or malice and ill will towards the victim and that is based on the victim being or being presumed by the offender to be a woman or girl; or
• whether or not there is a specific victim of the offence, the offence is motivated wholly or partly by contempt, or malice and ill will towards women and girls.

Exception for offences which are intrinsically misogynistic – section 1(5) and schedule 1

The report recommends that the aggravation should not be capable of being used (or 'libelled') in respect of offences which they consider are inherently misogynistic as they consider that the misogynistic aspect of such offending is already routinely taken into account when sentencing offenders convicted of these crimes. They propose that, for this reason, the aggravation should not be capable of being libelled for sexual offences and domestic abuse offences and for the new offences which their report recommends creating.

Even if there is an argument that there are individual instances where such offences do not have a misogynistic motive or involve the perpetrator demonstrating misogyny in committing the offence (most obviously where the victim is male) this approach also avoids the unfortunate scenario highlighted by some consultees in response to the earlier consultation on Lord Bracadale's report whereby a court would be required to rule on whether individual offences of, for example, rape or domestic abuse were or were not aggravated by misogyny.

The statutory aggravation is drafted such that it cannot be libelled in respect of any of the offences listed in the schedule. This schedule is intended to be a comprehensive list of offences which are intrinsically misogynistic in nature when committed against a female victim.

Question: Do you agree with the Working Group's recommendation that the statutory aggravation should not be capable of being libelled for certain offences because these offences are inherently misogynistic and this would already be taken account of when sentencing the offender?

In considering the report's recommendation, we are of the view that, aside from sexual offences and domestic abuse offences, there are certain other offences which can reasonably be considered to be intrinsically misogynistic. These are the offences relating to female genital mutilation, forced marriage, hymenoplasty and virginity testing. We have therefore added these offences to the schedule of offences in respect of which the aggravation cannot be libelled.

Consideration was given to adding the offence of 'stalking' as there will often be a misogynistic motive. However, in contrast with the offences listed in the schedule, we consider that a significant proportion of stalking cases can involve other motivations (e.g. a neighbour or financial dispute) and note that the Scottish Crime and Justice Survey 2019/20 found no difference in the proportion experiencing stalking and harassment in the 12 months prior to interview for men and women (11.4% and 12.1%, respectively.) As such, we consider that the statutory aggravation can usefully identify those stalking convictions where the offender is motivated by, or demonstrates, misogyny and therefore we do not propose to exclude the stalking offence by including it in the list of offences to which the aggravation cannot be libelled.

In common with other statutory aggravations, it is not proposed that the aggravation should have retrospective effect and as such, it will only be capable of being libelled with respect to offences committed after the provision comes into effect. As such, offences which are no longer in effect have not been listed in the schedule.

The legislation contains a power for the Scottish Ministers to amend the list of offences in respect of which the aggravation cannot be libelled by an order laid in the Scottish Parliament and subject to affirmative resolution procedure. This ensures that the list can be kept up to date to reflect any legislative changes in this area, and any oversights can be corrected, without the need for further primary legislation.

Question: Do you have any comments on the list of offences in the schedule in respect of which the misogyny aggravation cannot be libelled?

Question: Do you have any other comments about the statutory aggravation relating to misogyny?

Draft Provision

1. Aggravation of offences by misogyny

(1) An offence is aggravated by misogyny if—

(a) where there is a specific victim of the offence—

(i) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates contempt, or malice and ill-will, towards the victim, and
(ii) the contempt or malice and ill-will is based on the victim being or being presumed by the offender to be a woman or a girl, or

(b) whether or not there is a specific victim of the offence, the offence is motivated (wholly or partly) by contempt, or malice and ill-will, toward women and girls.

(2) It is immaterial whether or not the offender's contempt, or malice and ill-will, is also based (to any extent) on any other factor.

(3) Evidence from a single source is sufficient to prove that an offence is aggravated by misogyny.

(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 the offender to be of a particular description or members of a particular group.

(5) This section does not apply to the offences specified in schedule 1.

(6) The Scottish Ministers may by regulations modify schedule 1 by—

(a) adding an offence, or

(b) removing, or modifying the description of, an offence for the time being mentioned there.

(7) Regulations under subsection (6) are subject to the affirmative procedure.

2. Consequences of aggravation by misogyny

(1) Subsection (2) applies where it is—

(a) libelled in an indictment, or specified in a complaint, that an offence is aggravated by misogyny, and

(b) proved that the offence is so aggravated.

(2) The court must—

(a) state on conviction that the offence is aggravated by misogyny,

(b) record the conviction in a way that shows that the offence is aggravated by misogyny,

(c) take the aggravation into account in determining the appropriate sentence, and

(d) state—

(i) where the sentence in respect of the offence is different from that which the court would have imposed if the offence were not so aggravated, the extent of and the reasons for that difference, or
(ii) otherwise, the reasons for there being no such difference.

Schedule

(introduced by section 1)

Offences to which section 1 does not apply

1 Abduction with intent to commit the statutory offence of rape.

2 Assault with intent to commit the statutory offence of rape.

3 Indecent assault.

4 An offence under section 170 of the Customs and Excise Management Act 1979 in relation to goods prohibited to be imported under section 42 of the Customs Consolidation Act 1876, but only where the prohibited goods include indecent photographs of persons.

5 An offence under the following provisions of the Civic Government (Scotland) Act 1982—

(a) section 52 (taking and distribution of indecent images of children),

(b) section 52A (possession of indecent images of children).

6 An offence under the following provisions of the Criminal Law (Consolidation) (Scotland) Act 1995—

(a) section 1 (incest),

(b) section 2 (intercourse with a stepchild),

(c) section 8 (abduction of woman or girl for purposes of unlawful intercourse),

(d) section 10 (person having parental responsibilities causing or encouraging sexual activity in relation to a girl under 16).

7 An offence under the following provisions of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005—

(a) section 1 (meeting a child following certain preliminary conduct),

(b) section 9 (paying for sexual services of a child),

(c) section 10 (causing or inciting provision by child of sexual services or child pornography),

(d) section 11 (controlling a child providing sexual services or involved in pornography),

(e) section 12 (arranging or facilitating provision by child of sexual services or child pornography).

8 An offence under any of the following provisions of the Sexual Offences (Scotland) Act 2009—

(a) section 1 (rape),

(b) section 2 (sexual assault by penetration),

(c) section 3 (sexual assault),

(d) section 4 (sexual coercion),

(e) section 5 (coercing a person into being present during a sexual activity),

(f) section 6 (coercing a person into looking at a sexual image),

(g) section 7(1) (communicating indecently),

(h) section 7(2) (causing a person to see or hear an indecent communication),

(i) section 8 (sexual exposure),

(j) section 9 (voyeurism),

(k) section 11 (administering a substance for sexual purposes),

(l) section 18 (rape of a young child),

(m) section 19 (sexual assault on a young child by penetration),

(n) section 20 (sexual assault on a young child),

(o) section 21 (causing a young child to participate in a sexual activity),

(p) section 22 (causing a young child to be present during a sexual activity),

(q) section 23 (causing a young child to look at a sexual image),

(r) section 24(1) (communicating indecently with a young child),

(s) section 24(2) (causing a young child to see or hear an indecent communication),

(t) section 25 (sexual exposure to a young child),

(u) section 26 (voyeurism towards a young child),

(v) section 28 (having intercourse with an older child),

(w) section 29 (engaging in penetrative sexual activity with or towards an older child),

(x) section 30 (engaging in sexual activity with or towards an older child),

(y) section 31 (causing an older child to participate in a sexual activity),

(z) section 32 (causing an older child to be present during a sexual activity),

(z1) section 33 (causing an older child to look at a sexual image),

(z2) section 34(1) (communicating indecently with an older child),

(z3) section 34(2) (causing an older child to see or hear an indecent communication),

(z4) section 35 (sexual exposure to an older child),

(z5) section 36 (voyeurism towards an older child),

(z6) section 37(1) (engaging while an older child in sexual conduct with or towards another older child),

(z7) section 37(4) (engaging while an older child in consensual sexual conduct with another older child),

(z8) section 42 (sexual abuse of trust),

(z9) section 46 (sexual abuse of trust of a mentally disordered person).

9 An offence under any of the following provisions of the Prohibition of Female Genital Mutilation (Scotland) Act 2005—

(a) section 1(1) (female genital mutilation),

(b) section 3(1) (aiding and abetting female genital mutilation).

10 An offence under any of the following provisions of the Anti-social Behaviour, Crime and Policing Act 2014—

(a) section 122(1) (forced marriage),

(b) section 122(3) (deception with intent to cause person to enter forced marriage abroad).

11 An offence—

(a) that is aggravated as described in section 1(1)(a) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (aggravation of offence where abuse of partner or ex-partner),

(b) under section 2 of that Act (disclosing, or threatening to disclose, an intimate photograph or film).

12 An offence under section 1(1) of the Domestic Abuse (Scotland) Act 2018 (abusive behaviour towards partner or ex-partner).

13 An offence under any of the following provisions of the Health and Care Act 2022—

(a) section 140(1) (virginity testing),

(b) section 141(1) (offering to carry out virginity testing),

(c) section 142(1) (aiding and abetting virginity testing),

(d) section 152(1) (carrying out hymenoplasty),

(e) section 153(1) (offering to carry out hymenoplasty),

(f) section 154(1) (aiding and abetting hymenoplasty).

14 An offence under any of the following provisions of this Act—

(a) misogynistic harassment,

(b) misogynistic behaviour,

(c) threatening or abusive communications to women and girls which reference rape, sexual assault or disfigurement,

(d) stirring up hatred against women and girls.