In Context: Misogyny as a hate crime
The sentencing of Sarah Everard’s murderer in late September has reinvigorated demands for misogyny – the hatred of women - to be considered a hate crime, or as a standalone offence.
What is a hate crime?
A hate crime is a crime that is motivated by hostility or prejudice against the victim due to their race, religion, sexual orientation, transgender identity or disability – but not biological sex. A man attacking a woman, because she is a woman, is not currently a hate crime. However, attacking someone whose biological sex differs from their societal gender is considered a hate crime if the person was targeted because they are transgender.
Hate crimes span all categories of abuse – from verbal abuse, offensive jokes, graffiti and hoax calls, to bullying, intimidation, circulating discriminatory literature and physical violence.
Hate crimes are not a standalone offence – but when a crime falls into the category of a hate crime, judges have enhanced powers to increase the severity of the punishment.
Why is misogyny not considered a hate crime in Scots law?
In March, the Scottish Government passed its controversial Hate Crime Bill, amid strong opposition that said the bill would hamper free speech.
The bill introduced new offences of ‘stirring up hatred’, which previously only applied to race, and abolished the offence of blasphemy, which had not been prosecuted in Scotland for more than 175 years.
During the bill’s passing through Holyrood, an amendment by MSP Johann Lamont to include misogyny as a hate crime was voted down.
Instead, the Scottish Government has set up a working group, led by QC Baroness Helena Kennedy, to consider whether misogyny should be considered as a standalone crime, separate to the Hate Crime Bill.
What will the working group be looking at?
The Misogyny and Criminal Justice in Scotland Working Group will carry out its work in three phases, with a report of its findings and recommendations due to be presented to parliament by February 2022.
Phase one of the group’s work will “build a picture of the experiences of women and girls in Scotland and internationally, applying a gendered analytical lens, through the consideration of existing data sets, literature reviews and lived experience”. The group will also agree a working definition of misogyny.
Phase two will identify whether there are gaps in the existing law and/or where there is a failure to implement existing legislation in a way that protects women and girls. This will include whether the characteristics of sex should be included within the hate crime framework as a statutory aggravation and/or if sex should be added to stirring up hatred offences
For phase three, “the core working group will work in partnership to develop a specific definition of misogyny within a Scottish legal context, taking account of behaviours that already fall within criminal law and actions that can be taken out with the criminal law to address women’s experiences relating to misogynistic behaviour or inequality, challenge men’s behaviour and wider societal attitudes”.
Should misogyny be considered a hate crime or standalone offence?
Engender, a Scottish feminist organization, believes defining misogyny as a standalone crime would help to disrupt “epidemic levels of misogynistic hate” in the country.
Statistics collated by Engender show that more than half (52 per cent) of women in the UK have experienced some form of sexual harassment, with one quarter experiencing unwanted touching, and one fifth of women experiencing unwanted sexual advances.
More than one in ten women reported unwanted sexual touching or attempts to kiss them, and three quarters (71 per cent) of British women have taken action to guard themselves against the threat of harassment. This figure rises to nearly 9 in 10 (88 per cent) for younger British women aged 18-24.
On whether misogyny should be considered a hate crime or standalone offence, a policy document from Engender reads: “As movements such as ‘Me Too’ and ‘Times Up’ have powerfully demonstrated over the past few years, women all over the world continue to experience chronic levels of harassment and violence from men because they are women.
“There are serious questions about how our justice systems engage with these realities effectively.
“The concept of hate crime was developed in response to the oppression of racism and, as we have described, it is an awkward fit for gendered injustices. In those jurisdictions where gendered hate crime exists, it has not changed much for women.”