Submission to the Hate Crime and Public Order (Scotland) Bill Call for Views
This submission addresses the merits of a statutory aggravation for sex hostility or a standalone offence for misogynistic harassment.
We seek to highlight the following:
- There is a significant lack of public support for hate crime law in Scotland – the overwhelming majority of respondents (73%) to the 2018 consultation did not support it.
- Hate Crime Laws are viewed as too subjective, are open to abuse, create different classes of victims of crime and the perceived privileging of some groups in society over others.
- There is a significant lack of public support for a sex hostility statutory aggravation – the overwhelming majority of respondents (91%) to the 2018 consultation did not support it.
- The minority group of respondents who support the proposal are motivated by political ideology and a discriminatory world view not supported by the majority of respondents.
- Any established gaps in existing laws should be addressed in more appropriate legislation and in a manner compliant with the requirements of the Equality Act 2010.
- Lord Bracadale’ s assertion that ‘the practical impact of gender based offending falls almost exclusively on women’ is incorrect. Crime survey data shows that in crimes perceived to have been motivated by sex the victim 15% of victims were identified as male.
- The Scottish Government’s assessment of the gendered nature of online abuse is misleading. Research shows that women and men experience relatively similar levels of online harms and that male public figures are targeted for abuse at significantly higher levels than their female peers.
- We are deeply concerned that the Scottish Government’s current position on the frequency and impact of online abuse appears to be based entirely on research that specifically excludes boys and men from the scope of enquiry.
- The proposed misogyny statutory aggravation will further diminish the visibility and rights of male victims of crimes currently categorised by the Scottish Government as ‘gendered violence’ or Violence Against Women and Girls.
- The Scottish Government public commitment to a standalone misogyny aggravation sends a clear signal that violence against men is acceptable, excusable and to be tolerated in Scottish counties and communities to an extent that violence against women clearly is not.
Lack of Public Support for Hate Crime Law
An analysis of consultation responses submitted to the Independent Review shows that there is only limited support for hate crime amongst the general public in Scotland with the overwhelming majority of respondents (73%) indicating that they did not support this legislation.
The limited support can clearly be seen to come from organisations and lobby groups purporting to represent the views of specific groups who might be perceived to benefit from this legislative framework.
We cannot support hate crime legislation in Scotland for the same reasons highlighted by the majority group of respondents to Lord Bracadale’s Review. These are as follow:
- That they are too subjective and open to abuse;
- That they put important human rights such as freedom of speech and freedom of religious expression at risk;
- That they create different classes of victims of crimes and the perceived privileging of some groups in society over others;
- That they are divisive and create or reinforce subgroups within society;
- That the law should offer the same level of protection to all individuals;
- That there is a reportedly low number of hate crimes recorded in Scotland annually;
- That they did not offer an effective way of dealing with hatred and intolerance;
- That they place excessive strains on the police and criminal justice systems.
The law, the courts and the police service should provide the same level of protection and regard to all people with protected characteristics outlined in the Equality Act 2010.
The Scottish Government’s commitment in principle to legislate against crime perceived to be motivated by, or demonstrating, hatred against one sex only can reasonably be perceived to be an act of direct sex discrimination.
We would caution against such discriminatory action given that the out–workings of such legislation may inevitable lead to legal challenges, particularly in relation to equality duties that public authorities such as the Police Scotland and The Crown Office and Procurator Fiscal Service are bound by.
Furthermore, based on evidence outlined in the rest of this paper, we would be concerned that the Scottish Government’s current position on the matter is tainted by, and clearly demonstrates, a fragrant disregard towards, and possible prejudice against Scottish boys and men.
Lack of Support for a Sex Hostility Statutory Aggravation
In the final report of the Independent review of hate crime legislation in Scotland (The Independent Review), Lord Bracadale made the following claim:
Although the consultation responses did not demonstrate any clear consensus on the general principle of extending hate crime legislation, there was strong support among both individual & organisational respondents for some kind of provision relating to gender or misogyny.
This is a deeply disingenuous and misleading assessment of a consultation process that involved public meetings across Scotland and the submission of 457 responses.
An analysis of consultation responses clearly shows that 91% of respondents to question 14 did not support the proposal to extend a stand alone charge to other groups. Indeed only 9% of all individuals or organisations responding spoke in a favour of such an extension compared to 85% who directly spoke against it.
The majority of responses to Q29 presented the recurring view that specific legislation should not be created to deal with offences involving malice or ill-will based on the additional characteristics including sex.
Furthermore the appearance of ‘widespread support’ for some kind of provision relating to sex appears to have been based on the specific responses of approximately 30 organisations and a small number of individuals.
Politically Motivated Support for a Misogyny Statutory Aggravation
The proportion of respondents to the Independent review who supported the statutory aggravation for sex hostility (9%) is similar to the estimated population of people in the UK who the Fawcett Society estimate self-identify as feminist (7%).
Similarly, the proportion of the population estimated to want equality for and between women and men (83%) is similar to the proportion of respondents who specifically rejected the Independent review’s proposal.
This is significant for two reasons. Firstly, the perceived need for a statutory aggravation for sex hostility has largely been created by a relatively small number of self-identifying feminist lobby groups.
Secondly, this minority interest grouping have actively lobbied against extending the scope of hate crime law in a manner consistent with the non-discrimination principle and the equal provision of protection for people with all protected characteristics.
We believe that this position demonstrates a clear lack of regard towards boys and men, to the extent that it could reasonably be perceived to be motivated by hostility towards people solely on grounds of their sex.
Given the evidence documented during the Independent Review and Lord Bracadale’s conclusions, it is both extraordinary and alarming that the Scottish Government have signalled support in principle for a standalone statutory aggravation of misogyny.
Online Harms and Hate Speech
The Independent Review placed a significant amount of emphasis on the perceived prevalence of online abuse. Indeed this emerging issue was cited by Lord Bracadale as one of two main reasons why offending shown to involve sex hostility should be covered by new hate crime legislation.
Lord Bracadale’ s assertion that the practical impact of this form of offending falls almost exclusively on women is deeply troubling and appears to be based entirely on submissions from a relatively small number of respondents representing special interest groups that have demonstrated very little regard and concern for boys and men.
We are deeply concerned that the Independent Review ’s current position on the frequency and impact of online abuse appears to be based entirely on research that specifically excludes boys and men from the scope of enquiry.
The adoption of such an approach means that approximately 70% of current estimated hate crime victim populations will have been removed from available data samples before researchers sought any evidence of ‘problematic or abusive’ behaviours online. From an intersectional perspective, this means that the online experiences of significant populations of BAME, LGBT, disabled and young men (all understood to disproportionately experience high incidents of hate crimes) have been entirely ignored.
The ‘toxic twitter ‘report publicly championed by the Scottish First Minister and featured prominently in the Independent Review’s Report is a good example of this approach. Both it and related Amnesty International research cited by the Independent Review exclusively focused on abusive comments directed towards female public figures. Comparatively, studies that adopted a gender inclusive methodology have consistently shown that male public figures experience online abuse at significantly high rates when compared to female politicians. These included research published by DEMOS, the BBC, Sheffield University and Hereford University.
Furthermore, research by OFCOM shows that, more generally women and men experience relatively similar levels of online harms, including hate speech. Two major American studies by the Pew Research Centre found similar trends in relation to the sex of online users.
Perceived Gaps in Criminal Law
Lord Bracadale pointed to ‘a significant cultural shift in the sense that women are not now prepared to tolerate sexual harassment that might have been put up with in the past’ as the second reason for recommending the creation a sex hostility aggravation.
He acknowledges that in recent years, the Scottish Parliament has passed a large amount of criminal law which can be used to tackle harassment and violence against women and girls.
He also notes that this suite of offences appears to work effectively, are kept under review in terms of the Scottish Government’s Equally Safe strategy, have been amended and updated as necessary and concludes that the arguments generally made in favour of hate crime legislation appear to be less relevant in the context of this type of focused offence, observing that::
The offences implicitly involve the concept of gender, are already treated very seriously by society so the penalties imposed reflect this. It might therefore be concluded that there is no need to send an additional ‘message’ through hate crime legislation that the conduct is unacceptable.
Based on this, our understanding is that the purpose of the proposed creation of a misogyny statutory aggravation may be primarily to address possible gaps in the law or crimes that could be dealt with more effectively by the criminal law than it is at present.
To date neither the Scottish Government nor the Independent Review have identified what these possible gaps are. If specific gaps in criminal law can be identified and shown to disadvantage women and girls then it is likely that we could support appropriate legislative change. However, even in this circumstance we believe that it would not be appropriate to address such gaps in hate crime laws that primarily exists to allow a statutory aggravation when sentencing perpetrators of existing crimes.
Perceived impact of gender-based offending.
Lord Bracadale’ s assertion that ‘the practical impact of gender based offending falls almost exclusively on women’ would appear to be supported by the Scottish Government. We have already highlighted gendered trends relating to online abuse which show this to be untrue.
In addition we would draw your attention to the Fawcett Society’s analysis of Home Office estimates of crimes in England and Wales broken down by perceived motivating hostility. Their analysis found that in crimes perceived to have been motivated by sex, 15% of victims were identified as male.
Furthermore, we would note that while many male victims may not perceive their sex to be relevant, statistical trends indicate that the sex of the victim may be a direct motivating factor in the perpetration of many crimes.
Boys and men are significantly more likely to be the victims of violent crime when compared to woman and girls, it is likely that to some degree this consistent trend is impacted by profound cultural intolerance of and taboos against violence targeting women.
Causes and Consequences of ‘Gendered Violence’
There is a commonly held perception that if introduced a sex hostility statutory aggravation will ultimately be used to enhance the sentence of perpetrators of crimes currently categorised as ‘gendered violence’ under Scotland’s Equally Safe strategy for preventing and eradicating violence against women and girls.
Although the Independent Review Report appeared to indicate that this may not be the case, it is clear that the highly influential group of feminist lobbyists view misogyny to a root cause of all crimes categorised as ‘gendered violence’.
Indeed Equally Safe: Scotland’s strategy for preventing and eradicating crimes categorized as violence against women and girls is informed by the Scottish Government’s belief that women and girls have a subordinate status in society and that Gender based violence is a function of gender inequality, an abuse of male power and privilege and that such violence cannot be understood, in isolation from the norms, social structure and gender roles within the community, which greatly influence women’s vulnerability to violence.
It is widely understood that Scottish boys and men can and frequently do experience crimes categorised as violence against women and girls. Crimes such as domestic abuse, sexual violence and harassment; forced marriage and online violence.
Such victims are poorly served by Government Policy impacted by the confusing, contradictory and controversial concept of ‘gendered violence’. The Scottish Government has no complimentary strategy with the ambition to eradicate violence against boys and men and as a consequence male victims of crimes categorized as violence against women and girls are essentially made invisible. They are also often directly discriminated on grounds of sex by the publicly funded service provision arrangements that flow from such a uniquely ‘gendered’ public policy.
This approach has largely been moulded by the demands of the same minority lobby that have directly profited both politically and financially from this strategy. A strategy that disproportionately ring fences resources for the exclusive benefit of one class of victim based solely their sex, while at the same time diminishing the experience of a perceived second class of victims who are consequently doubly disadvantage by a policy that directly discriminates against them solely on the basis of sex.
The proposed misogyny statutory aggravation will further diminish the visibility and rights of male victims of crimes categorised as ‘gendered violence’. It’s one sided construct will also inevitably contribute to an increase in the already substantial disparity in criminal sentencing that male perpetrators of crime receive when compared to female perpetrators of crime.
Conclusion – Intolerance, Acceptance and Excuses
On March the 8th 2008, International Women’s Day then United Nations Secretary-General, Ban Ki-Moon made the following observation that has been quoted by several respondents to this process.
‘There is one universal truth, applicable to all countries, cultures and communities: violence against women is never acceptable, never excusable, never tolerable.’
We fully anticipate that submissions such as our own that offer reasoned evidence against and objection to the current proposals will ultimately be ignored and that any action or inaction will be progressed based on the demands of a small cross section of publicly funded lobby groups.
This conclusion is based on the fact that despite the overwhelming rejection of the proposal by respondents to the 2018 consultation, the Scottish Government have already publicly committed to developing a standalone offence which would criminalise serious misogynistic harassment (whatever that means).
It is also based on the Scottish Government’s deeply discriminatory strategy for addressing violent crime categorised as ‘gendered violence’, including the provision of services to support victims.
Such actions signal a clear message to Scottish society. That message is that violence against men is acceptable, excusable and to be tolerated in Scottish counties and communities to an extent that violence against women clearly is not.
 Independent Review of Hate Crime Legislation in Scotland: Analysis of Consultation Responses (2018). Page 18, Table 3.2.
 Ibid. Page 19, para 3.37.
 Independent review of hate crime legislation in Scotland: final report (2018); Chapter 4, Paragraph 4.13.
 analysis of consultation responses
 Ibid. Page 86, para 8.21.
 Ibid. Page 86, para 8.23.
 Ibid. Page 5.
 Independent review Chapter 4, Para 4.9
 Home Office (2018): Hate crime: A thematic review of the current evidence
 Prohibition of Female Genital Mutilation (Scotland) Act 2005; Sexual Offences (Scotland) Act 2009, which sets out a modern suite of sexual offences including rape, sexual assault, voyeurism and indecent sexual communications; Forced Marriages etc (Protection and Jurisdiction) (Scotland) Act 2011; Abusive Behaviour and Sexual Harm (Scotland) Act 2016, section 2 of which deals with the so-called ‘revenge porn’ offence of disclosing or threatening to disclose an intimate photograph or film;
Domestic Abuse (Scotland) Act 2018, which creates a new offence of abusive behaviour towards a partner or ex-partner.
 Annual Crime Surveys for England and Wales (CSEW) indicate that there is relatively little sex difference in victimisation of non-violent offences . CSEW also consistently indicate that In relation to violent offences at younger ages, below 24, men are significantly more likely to be the victim of violent crime. Overall men and boys are just under twice as often the victim of violence as compared to women and girls and men are rather more than twice as often the victim of homicide. See: Collins W (2019): The Empathy Gap.