Reforming The Criminal Law To Address Misogyny

14th April 2023

In February 2021, the Scottish Government established an Independent Working Group on Misogyny and Criminal Justice in Scotland, chaired by Baroness Kennedy QC. The Working Group was tasked with considering how the Scottish criminal justice system deals with misogyny, including looking at whether there are gaps in the law that could be addressed by a specific criminal offence to tackle such behaviour.

The Working Group published its final report in March 2022. That report recommends the creation of what it describes as 'gendered law' - which is specifically intended to protect women and girls. It said that seeking to tackle misogyny through gender-neutral law would be advocating for a solution that suggests that the problem is a neutral one when in fact the evidence is clear that there is a pressing social need to address behaviours specifically targeted towards women.

The report's specific recommendations for reform of the criminal law were:

A new offence of public misogynistic harassment of women;
A new offence of issuing threats of, or invoking, rape or sexual assault or disfigurement of women and girls online and offline;
A new statutory aggravation to relate to misogynistic behaviour where a crime such as assault, criminal damage/vandalism or threatening or abusive behaviour is aggravated by misogyny; and
A new offence of stirring up hatred against women.
The Scottish Government published its initial response to the report's findings in April 2022.

In that response, the Government accepted that the report's recommendations represent a new and necessary departure, in that they specify women and girls as requiring specific protection of the criminal law, and are pivotal in challenging society's tolerance of misogyny.

The response stated that the Government will consult on draft legislative provisions which give effect to the recommendation for criminal law reform contained in the report.

This approach has been taken in the light of experience of legislating in sensitive and novel areas of criminal law such as the domestic abuse offence. That experience clearly showed that in such areas, informed and insightful feedback is often best provided in response to the sight of specific draft provisions where possible. This is to allow the most detailed level of scrutiny by all those with an interest.

In converting the report's recommendations into draft law, the Scottish Government has split up the most important recommendation - that of a public misogynistic harassment offence - into two separate offences that cover the conduct intended to be criminalised by the recommendation. They are a misogynistic harassment offence and a misogynistic behaviour offence.

Read the consultation paper
https://www.gov.scot/publications/reforming-criminal-law-address-misogyny-scottish-government-consultation/

A short explanation of each of the provisions that we are consulting on is also available.

For more links go to
https://consult.gov.scot/criminal-justice/reforming-the-criminal-law-to-address-misogyny/