Reforming the criminal law to address misogyny: consultation

Chapter Four

Recommendation: An offence of Stirring Up Hatred Against Women and Girls

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 that an offence of stirring up hatred against women and girls should be created. It proposes that it should criminalise engaging in threatening or abusive behaviour, or communicating threatening or abusive material, with the intention of stirring up hatred towards women and girls.

The report notes that the offence should not require there to be a specific victim and as such the question of whether any individual targeted by a perpetrator is or is not a woman or girl is not relevant as the offence relates to stirring up hatred of women as a group.

The report notes that freedom of expression must be considered in determining whether the behaviour or communication was reasonable, but that no one should enjoy the freedom to stir up hatred towards women.

Discussion

The report recommends that an offence of stirring up of hatred of against women and girls should be created to address:

"a rapidly growing culture, with far reaching impacts, of stirring up hatred towards women…which causes women, as a group, to feel vulnerable and excluded"

The report cites examples of how the offence may be committed such as an 'incel' who encourages his social media followers to assault women who refuse to have sex with men who have taken them on a date, and an extremist religious preacher who advocates physical punishment of women who have sex outside of marriage.

The 2021 Act will, when it comes into effect, provide for offences of 'stirring up hatred'. The offences cover stirring up hatred on grounds of race, age, disability, religion, sexual orientation, transgender identity and variations in sex characteristics.

In the 2021 Act, the test used for the offence covering all characteristics except race^[1] is as follows. This offence is committed where a person behaves in a manner, or communicates material to another person, that a reasonable person would consider to be threatening or abusive, and, in doing so, the person intends to stir up hatred against a group of persons based on their membership of a group defined by one of these listed characteristics.

It may be worth noting that the number of prosecutions for existing 'stirring up hatred' offences in different jurisdictions across the UK is very low (typically between 5 and 15 across the whole of the UK per year) and it is reasonable to expect that this will also be the case for the offence of stirring up hatred of women and girls.

It is possible that behaviour which amounts to the stirring up of hatred against women and girls may often take a slightly different form from the stirring up of hatred against groups covered by the existing offences. The report notes 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 woman – feminists, fat women or unfeminine women…"

This may contrast with stirring up of hatred against groups defined by their racial or religious identity or sexual orientation, where, for the most part, people who stir up hatred against these groups target the group in its entirety, rather than stirring up hatred against, for example, people of a particular racial identity who dress in a certain way, people of a particular religious faith who hold certain opinions, or people of a particular sexual orientation who are 'too loud'.

However, the 'stirring up hatred' offence in the 2021 Act is wide enough to criminalise stirring up of hatred that takes this form, providing the stirring up of hatred relates specifically to the members of one of the protected groups. The draft offence of stirring up of hatred against women and girls works in the same way.

There is likely to be a degree of overlap between the types of behaviour that amount to an offence of 'stirring up hatred of women and girls' and the proposed offences of 'misogynistic harassment' and 'misogynistic behaviour' discussed earlier in the consultation.

However, there is nonetheless a good case for legislating for a stirring up hatred against women and girls offence.

The offences of misogynistic harassment and misogynistic behaviour are concerned with the direct effect of behaviour on women and girls towards whom it is directed, or who may see or hear it. By contrast, behaviour intended to stir up hatred against women and girls may take place in all-male spaces, either on or off-line and is concerned with the effect that the behaviour has on the (probably male) people in whom the perpetrator is seeking to stir up hatred of women and girls. There is acute societal concern about online content, in particular, which glorifies the abuse of women and which the existing law is unable to deal with effectively.

This behaviour may not amount to misogynistic harassment offence or misogynistic behaviour offence if there are no women or girls present who may be directly harmed by it. As such, the stirring up hatred offence is focused on behaviour that seeks to stir up hatred in others against women and girls rather than any behaviour that is necessarily directed at, or takes place in the vicinity of, women and girls.

In this regard, it is worth noting that the 2021 Act provides for both an offence of stirring up racial hatred and a separate offence of racially aggravated harassment which demonstrates the different policy aims of stirring up hatred offences and offences concerned with e.g. harassment or abusive behaviour more generally type which is directly experienced by its victims.

Question: Do you agree with the report's recommendation that there should be an offence of stirring up hatred of women and girls?

The behaviour to be covered by the offence – section 1(1)

The report recommends adopting the approach taken for the general stirring up of hatred offence contained in the 2021 Act. The 'stirring up of hatred of women and girls' offence has been drafted on this basis.

What this means is that the offence of stirring up hatred of women and girls is committed where the accused behaves in a threatening or abusive manner, or communicates threatening or abusive material, and, in either case, has the intention of stirring up hatred against women and girls.

A 'reasonableness' defence modelled on that contained in the 2021 Act has also been provided for. The maximum penalty on conviction on indictment is 7 years imprisonment, in line with the offences of stirring up hatred in the 2021 Act.

Question: Do you agree with the report's recommendation that the offence should be committed where a person behaves in a threatening or abusive manner or communicates threatening or abusive material, with the intention of stirring up hatred of women and girls?

Freedom of expression (section 2)

The report states that

"Freedom of expression must be considered in determining whether the behaviour or communication was reasonable e.g. arguing against feminism, but no-one should enjoy freedom to stir up hatred towards women."

It is a defence to the stirring up hatred offences contained in the 2021 Act for a person charged with an offence under this section to show that the behaviour or the communication of the material was, in the particular circumstances, reasonable. This was included as a safeguard, albeit as regards the offences requiring an intent to stir up hatred, it is difficult to envisage when the accused's actions would ever be reasonable.

The stirring up offence is limited to behaviour or communications which are threatening or abusive and intended to stir up hatred of women and girls. 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.

In light of concerns raised during the passage of the 2021 Act, we have included a provision to address this which is similar to that contained within section 9 of the 2021 Act. This provision makes clear the following: For the avoidance of doubt, behaviour or material is not to be taken to be threatening 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 discussion or criticism of, for example, equal pay for women or the right to maternity leave would not, in and of itself, be considered to be (threatening or) abusive. Something more is required for any such discussion or criticism to be taken to be threatening or abusive. For example, if it were proved that a reasonable person would consider that the criticism was expressed in a threatening or abusive way, or the material containing the criticism also included other threatening or abusive comments, it could still be taken to be behaviour or material that is threatening or abusive and therefore satisfy the first element of the offence. For the offence to be committed, however, the second element (i.e., the intention to stir up hatred) would also have to be proved beyond reasonable doubt.

Question: Do you have any comments on the proposed approach to freedom of expression set out in the draft provisions?

Question: Do you have any other comments on the draft offence of stirring up hatred of women and girls?

Draft Provision

1 Offence of stirring up hatred against women and girls

(1) A person commits an offence if—

(a) the person—

(i) behaves in a manner that a reasonable person would consider to be threatening or abusive, or
(ii) communicates to another person material that a reasonable person would consider to be threatening or abusive, and

(b) in doing so, the person intends to stir up hatred against women and girls.

(2) It is a defence for a person charged with an offence under this section to show that the behaviour or the communication was, in the particular circumstances, reasonable.

(3) For the purposes of subsection (2), it is shown that the behaviour or the communication of the material was, in the particular circumstances, reasonable if—

(a) evidence adduced is enough to raise an issue as to whether that is the case, and

(b) the prosecution does not prove beyond reasonable doubt that it is not the case.

(4) For the purposes of subsection 1(a)(i), a person's behaviour—

(a) includes behaviour of any kind, and in particular, things that the person says, 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.

(5) For the purposes of subsection (1)(a)(ii), the ways in which a person may communicate material to another person are by—

(a) displaying, publishing or distributing the material,

(b) giving, sending, showing or playing the material to another person,

(c) making the material available to another person in any other way.

(6) A person who commits an offence under this section if 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).

(7) In this section—

"material" means anything that is capable of being looked at, read, watched or listened to, either directly or after conversion from data stored in another form,

"women and girls" includes 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.

2 Protection of freedom of expression for the purposes of the offence of stirring up hatred against women and girls

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