Dr Kim Barker, Lecturer in Law, Stirling Law School
Dr Olga Jurasz, Senior Lecturer in Law, The Open University Law School
The Scottish Government is currently considering reforms to the hate crime framework in Scotland. This law reform agenda is something of a pressing priority given the increase in hate incidents, and the upsurge in polarisation evident in social interactions – both online and offline. One aspect of the reform under consideration is whether to introduce – as suggested by Lord Bracadale in his Independent Review of Hate Crime Legislation in Scotland – a gender aggravator, and whether to introduce a new standalone offence of misogynistic harassment.
The inclusion of both gender and misogyny in Lord Bracadale’s review was a response to the growing societal concerns over misogynistic and gender-based hate apparent both online and offline. As a result of his recommendations in 2019, the Scottish Government is now considering whether to table legislation to address these issues. This is a welcome development, particularly given our advocacy for law reform, and previous research on the issue of misogyny.
In response to the concerns surrounding the upsurge in harassment and harassing behaviours, the Scottish Government has proposed a new, standalone, criminal offence of misogynistic harassment.
The creation of an offence addressing misogyny within the hate crime framework would be a major step forward in protecting women from gender-based hate, or from hatred manifested against them purely because they are women. That said, because this proposal captures the actus reus of harassment – and only harassment – it is far from offering a complete solution to the challenge of violence against women.
Addressing behaviours that are motivated by misogyny is a significant step forward in capturing the abuses that women suffer every day. While conceptually the offence of misogynistic harassment presents a unique approach, and one not dealt with from this perspective anywhere else within the UK, there are still some very real issues with the broad proposal. Precise details of the proposed offence have not (yet) been publicized but have gained the support of third sector organisations in Scotland, including Engender, Scottish Women’s Aid, Zero Tolerance, and Rape Crisis Scotland. Therefore, whilst
we are supportive of the notion that misogynistic behaviour reaching the criminal threshold for prosecution could form the basis of a standalone offence, it is tricky to see how this may work in practice. This is especially the situation given that there is no legal definition of misogyny, nor of misogynistic behaviour, so it is difficult to assess the potential impact of such an offence on punishment and prevention. It is also worth noting that the proposed offence is highly likely to deal only with incidents that are individual harassing behaviours. Similarly, it does not appear (as it is currently proposed) to address group behaviours which could amount to harassment.
As a standalone offence, the proposal moves the issue away from the hate crime framework. It would – at best – be a supplementary element but would fall outside of the existing framework dealing with hate related offences. This is somewhat problematic, both on a practical and conceptual level, given the long-overdue recognition of hate directed against women (because they are women) within the legal systems. Although notionally, the ‘misogynistic’ aspect of the proposed offence might in principle bring it conceptually close to the hate crime framework (seeing misogyny as a form of hatred of women for instance), legally it falls outside that scope. In light of the Bracadale Review, and the subsequent One Scotland Consultation following-up on hate crime, it is puzzling as to why the creation of a proposed offence on this issue is part of the hate crime discussions. All of this aside, given developments in media, society, and politics, we see the need to offer protection for women who suffer abuse, but this cannot be achieved by legal provisions alone.
Advancing Scots Criminal Law?
Protection for all women from abuse, harassment, and threatening behaviours should be a legislative priority and must be forthcoming. The creation of an offence of misogynistic harassment has the potential to mark a significant step in the right direction. However, care must be taken to ensure appropriate definitions and supporting evidence be available to inform the creation of such an offence. Given Scotland’s progressive outlook and focus on women’s rights and gender equality, Scotland should be – and is – well-placed to be a world-leader on this issue – especially given the Equally Safe programme of work which has placed gender equality at the heart of the policy landscape.
Ultimately it is encouraging to see that women are being put first. In reality however, the introduction of the proposed offence – in whatever its finalised form – needs to be treated with some caution, not least to ensure that it is drafted in a manner which ensures it is workable, operational, and not merely a quick political win. Introducing legislation simply for the sake of it would be a mistake here, doing more damage than good. Introducing a new standalone offence which proves unworkable could also fail to advance Scots criminal law, and create further disparities, undermining gender-focussed policies and protections in Scotland.