A gender aggravator to crimes was first mooted in the Draft Criminal Code for Scotland some seventeen years ago. Later the same year Robin Harper MSP lodged an amendment to the Criminal Justice (Scotland) Act 2003 to make provision for offences aggravated by disability, sexual orientation, age and gender. Mr Harper’s amendment was not accepted but did lead to the establishment of a Working Group to further consider what improvements could be made to hate crime legislation.
Members of this Working Group included representatives from Equality Network, Stonewall and Engender. 102 individuals and groups responded to the main consultation (although both Engender and Scottish Women’s Aid withheld their submissions from publication). A Hate Crime Report was published in October 2004 detailing 14 recommendations for the Government – protection for transgender identity was in, along with sexual orientation and disability, but women were out.
The minutes of the meetings of the Working Group seem to be lost to the archives but the final report does indicate that a number of women’s groups called for the characteristic of gender to be added, in opposition to the views of the Scottish Executive’s Violence Against Women Unit:
“A number of submissions to the consultation from women’s organisations argued that when women are abused this is often because they are women, and that this implies gender-based malice and ill-will on the part of the abuser.”
“the Unit does not view domestic violence as a hate crime. A number of the Group disagreed with this view, as did those respondents working in this field. They saw domestic violence as part of a spectrum of gender-based violence committed against women, and thus a gender hate crime because the woman is targeted because of her gender.“
In 2007 Patrick Harvie MSP proposed a motion that was backed by the Scottish Government and which duly became the Offences (Aggravation by Prejudice) (Scotland) Bill, which sought to extend hate crime legislation to cover the characteristics of sexual orientation, transgender identity and disability.
However, all was not lost for women as the Equal Opportunities Committee were tasked with examining whether gender and age should be added to the Bill. Organisations such as Victim Support, the Association of Chief Police Officer and CARE supported the inclusion of gender. The women’s organisations Engender, Scottish Women’s Aid and Rape Crisis did not submit any written evidence to the Committee, yet were still invited to give oral evidence.
Do read the full transcript of this evidence session from November 2008 – it is quite astonishing in the complete turnaround in position of the women’s groups from that given in all the documentation provided to the Committee prior to that point. Some key excerpts:
Scottish Women’s Aid (SWA): We said we were in favour of including gender as an aggravation. Things have moved on since then…we no longer think that it is appropriate to include gender aggravation in the bill.
- Including gender as an aggravation would imply that only some forms of violence against women are because of their gender. Unfortunately, all violence against women is due to the endemic misogyny in society. However, how could you prove that in court?
- Many hate crimes occur in public, gender violence occurs in the home.
- Gender would have to be gender neutral, ie include men, so not sure how that would help women.
- Do not want 2 tiers of offences eg. only some rapes classed as motivated by gender hatred.
- Would be difficult for women to appear as witnesses.
- May be thought of as a nebulous concept and difficult to prosecute.
Rape Crisis Scotland: RCS’s position is similar..we are not convinced that a gender aggravation would help in any way. We are keen to establish an offence of incitement to hatred of women, in relation to, for example pornography.
Engender: supports the views of SWA and RCS on the issue. A gender aggravation would imply that some forms of violence against women, including some crimes of sexual violence against women, are not misogynistic. More useful to consider using the gender duty in an overhaul of the criminal justice system.
Several MSPs, including Marlyn Glen, warned that an opportunity might be missed.
Marlyn Glen MSP: I want to sound a note of caution: are you giving up a chance to make a difference?…domestic violence only one part yet you agree misogyny is endemic in society. If you give up this chance, will you be able to address the issue in other legislation that might be on its way? I have heard nothing to suggest that that is the case. Why do you not want to push for the inclusion of gender in this bill, to ensure that the issue is at least discussed?
SWA – I do not think that the bill is a missed opportunity; it is a different opportunity. Given the wording of the bill, we have concerns about how it would work…Something needs to be done, but I do not think that this bill is the answer. We have all discussed that. We do not know what…we do not know when, but there is hope.
All groups conceded allowing a provision in the Bill to add gender by statutory instrument at a later date. The Bill was therefore enacted into law without including women.
Sound familiar? It should, because this is exactly the same position we are in twelve years later!
The characteristic of ‘sex’ has been pencilled into the Hate Crime and Public Order (Scotland) Bill and may possibly be confirmed at a later, as yet undetermined, date. In the meantime, yet another Working Group is to be established to look at misogynistic harassment. Which begs the obvious question: how can sex ever be added to the legislation if the decision is taken out of the hands of the Committee currently scrutinising the Bill, and if the working group is starting from the premise that ‘adding sex is not helpful’ and will instead be developing alternative legislation (Engender)?
Women deserve better. Seventeen years we have been waiting for equality under hate crime laws and this Bill should not pass into law without us. The establishment of the working group has been delayed due to Covid-19 and may take 2-3 years to reach a conclusion, with no guarantee its work will even continue beyond the upcoming Scottish election.
We concur with the evidence given by Lucy Hunter Blackburn of MBM Policy Analysis that the default position should be for sex to be included in the Bill. The counter arguments given by Engender et al are not compelling: they state that including men as well as women is problematic – however, the characteristic of race includes white as well as black, religion also covers those with no beliefs, and, to our knowledge, these have never been raised as an issue. The recent Domestic Abuse (Scotland) Act 2018 is written in neutral language so covers people of both sexes, and no concerns regarding this were raised in written evidence to Parliament. Whilst the majority of offences are committed by men against women it would be foolish not to recognise the minority of reverse situations, and indeed would be discriminatory not to provide equal access to the law for both sexes.
Engender also argues that much of gendered violence and hate crime occurs in the home rather than in public. Again, this may be unnecessarily over-complicating the issue as these criticisms can also be levelled at other characteristics: violence and abuse of the elderly and to people with disabilities may occur at home or in care settings, yet this has not been raised as a reason as to why aggravated offences cannot be applied.
The Scottish Government committed to implementing the recommendations of Lord Bracadale’s review of hate crime – and these included adding the characteristic of sex to hate crimes. Let us not wait another twelve years to be visible in the laws of this country.