Reforming the criminal law to address misogyny

Closes 2 Jun 2023


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More Information

The report produced by Baroness Kennedy's Working Group on misogyny and the criminal law highlighted stark examples of the kind of everyday misogynistic behavour experienced by women and girls.  Drawing on the Lived Experiences Survey they carried out, these included: 

"Being threatened by a man in a pub for not laughing at what he thought was a funny remark."

"I have been whistled at and catcalled numerous times in the street.  Once a group of men passed me and one of them grabbed their crotch and asked if I wanted a taste of their sausage."

"Since I have been disabled, this [harassment] happens so much more.  I had a man on a train telling me 'ooh love, did someone f**k you to hard and now you're broken? ' I was so scared."

"I had a man undo my halter neck top from behind in a club, I had never seen him before."

"I was waiting for a bus outside my house and two guys (late teens-early 20s) yelled 'Oi ugly, want a shag?'  I was 11 years old."

Misogyny, in whatever form it takes, belittles women and girls, drains confidence and limits ambition. Though it may not always be immediately apparent to someone behaving in a misogynistic way, it has serious consequences. This is both in terms of the immediate harm caused by the behaviour to individual women and girls and the longer-term corrosive and insidious harm caused to women and girls generally.

Misogyny can affect the potential of individual women and girls and groups of women and girls, by making them more reluctant and less able to play a full part in all aspects of everyday life. As such, it represents a barrier to achieving a growing economy and dynamic society where everyone is able to reach their full potential, free from discrimination.

In February 2021, the Scottish Government established an Independent Working Group on Misogyny and Criminal Justice in Scotland (“the Working Group”), chaired by Baroness Helena 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 establishment of the Working Group followed the publication in January 2019 of the first report of the First Minister’s National Advisory Council on Women and Girls,  which included a recommendation to “criminalise serious misogynistic harassment, filling gaps in existing laws.”

While there are many different ways of addressing different forms of misogynistic behaviour including education and cultural change, the criminal law can have a key role to play.

The Working Group examined a large body of evidence and research concerning women’s experience of misogynistic behaviours. This included gathering new evidence and insights via their survey of Lived Experiences of Misogyny in Scotland and seeking input from women’s groups, academics, policy experts and Police Scotland on key issues.

The Working Group was guided by the vision and objectives of Equally Safe, Scotland’s strategy for preventing and eradicating violence against women and girls. Equally Safe sets out a vision to prevent violence from occurring in the first place, build the capability and capacity of support services, and strengthen the justice response to victims and perpetrators. The strategy and responses are informed by the experience of victims and by the expertise of professionals working in the field.

The report recommends the creation of what it describes as ‘gendered law’. This reflected the clear evidence of a need for criminal law which is specifically intended to protect women and girls. 

The Working Group'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 Working Group's findings in April 2022. 

The Government accepted that the Working Group’s recommendations represented 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 would consult on draft legislative provisions which give effect to the Working Group's recommendations.

This approach of developing draft legislation 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 criminal law provisions where possible. This is to allow the most detailed level of scrutiny by all those with an interest.

The timing of introduction of a final bill into the Scottish Parliament will be considered as part of wider legislative planning and the Government’s future legislative programme will be set out in the Programme for Government in due course.

Insofar as possible, the approach that has been taken in developing the draft provisions has been to seek to implement as faithfully as practicable each of the specific recommendations made in the report.

However, the recommendations for reform to the criminal law were presented in the report at a high level and in a number of respects, the report does not set out in detail the criminal law policy underpinning its proposals at a level that provides a clear blueprint for developing specific provisions.  There are also some areas where the process of developing draft provisions has led to a slightly different approach to that proposed in the report. Where that has happened,  the difference in approach is explained. 

A number of the issues on which we are seeking views on in the consultation are concerned with the detail of criminal law policy. We have sought as far as possible to present these in an accessible way. However, some of the issues explored in the consultation paper may be of interest primarily to those with a background in issues relating to criminal law and policy, especially as it relates to violence against women

Page Response
Chapter 1 - An offence of misogynistic harassment
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0 of 6 questions answered
Chapter 1 (cont.) - An offence of misogynistic behaviour
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Chapter 2 - An offence of threatening or abusive communications to women or girls that reference rape, sexual assault or disfigurement
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Chapter 3 - A new statutory aggravation relating to misogyny
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Chapter 4 - An offence of stirring up hatred against women and girls
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Chapter 5 - Impact Assessments
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About you (Required)
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