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Working Group on Misogyny and Criminal Justice in Scotland

Letter from the Chair of the Working Group on Misogyny and Criminal Justice in Scotland to the Convener of the Criminal Justice Committee, 16 September 2021

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Dear Ms Nicoll

During the parliamentary scrutiny of the Hate Crime and Public Order (Scotland) Bill the then Justice Committee discussed the main aim and the timetable for the work of the Working Group on Misogyny and Criminal Justice in Scotland.

I therefore thought it appropriate, as Chair of the independent Working Group, that I write to you to provide an update on the working group’s progress to date. There has been a number of events which have happened since the working group has been established which have further raised the significance of our work and the need to tackle men’s violence and abuse against women and girls. Something has to be done.

Sarah Everard’s case shook the nation to the core with vigils held in commemoration of her throughout the UK. There was a clear outcry from the public that women are frustrated with how they are treated on the street and more generally do not feel safe. This led to over 15,000 responses being received by the UK Government through the public consultation on its women and girls’ strategy.

Even more recently there was the Plymouth Incident in which several people lost their lives in a mass shooting. The perpetrator has been linked to ‘incel’ forums, online platforms which appear to cultivate negativity, prejudice and hatred towards women. Whilst we must not speculate at the motivations of this man, we cannot ignore that these platforms do exist and represent extreme misogyny in their content and purpose. Misogyny is insidious, an undercurrent in society which must be tackled. I feel privileged to be in a position to bring forward recommendations to address this.

The Working Group remit has been split into three phases. We are currently working in parallel through phase one and two, with phase one almost complete. Myself and my panel of experts have committed to a schedule of monthly meetings since the inaugural meeting in February.

We have benefitted from oral evidence from a number of experts and have taken these sessions in thematic order. This included retired Chief Constable Susannah Fish and the organisation Love and Power and Citizens UK whose evidence was timely given the meeting’s close proximity to Sarah Everard’s tragic case. The group was able to benefit from their experience of the Nottinghamshire Police pilot which expanded its hate crime categories to include misogynistic hate incidents.

For the purpose of the pilot they defined misogynistic hate incidents as “incidents against women that are motivated by the attitude of men towards women and includes behaviour targeted at women by men simply because they are women". Incidents recorded by the police ranged from acts of violence and damage to property to street harassment (including cat calling and wolf whistling).

After two years of the pilot, 174 women had reported misogynistic harassment to the police. Of these, 42% were recorded as crimes/offences, and 58% as hate crime incidents. One of the observed outcomes from Nottinghamshire was an increase in reporting of incidents by women and an increased confidence that women will be believed and their safety concerns taken seriously.

Professor Kate Manne followed in April and we were very fortunate to hear her views on the foundational concept of misogyny, being an important author on the subject. Dr Olga Jurasz, Dr Kim Barker and Professor Liz Kelly provided updates on online misogyny, sexualised violence and education. Dr Bianca Fileborn and Fiona Vera-Grey discussed misogyny in public spaces and most recently, Clare Barnett, UN Women UK, and Victor Madrigal-Borloz the UN Independent Expert on Protection against violence and discrimination based on sexual orientation and gender identity, presented on street harassment and the UN’s position on gender identity. We have been remarkably privileged to have heard from such an esteemed collection of experts and I would like to formally record my thanks to each of them.

Our discussions after each session have been rich and thought provoking. The membership of the working group holds differing perspectives from which to see this issue through and I have benefitted from the challenge, the wide range of questions and opinions. I do not intend to go into detail about the fullness of the views expressed. It would be wrong to offer any conclusive remarks before each of the phases of the remit is complete.

However, I would like to share an outcome from our work with you. This is an agreed working definition of misogyny. I do not believe a single definition like this exists within the UK. Too frequently people refer to the Classics and consider misogyny simply to be a hatred of women. It is in fact more complex. I was pleased that we were able to agree on this as it is important to ensure that when we talk about misogyny we know what it means and we agree on the components of it.

This definition has allowed us to analyse behaviours commonly reported and understand where these may be misogynistic or where they fall out with this definition, and why. I should emphasise that this is not a legal definition. I understand that there is often the urge to legalise language where it may be considered within a criminal context. This is not its direct purpose. The purpose of the working definition was not to identify conduct which should or should not be criminal – rather it was to understand the motivational factors which would underlie such conduct or behaviours. Our legal definition will come forward in phase three of our work.

The working definition of misogyny is:

‘Misogyny is a way of thinking that upholds the primary status of men and a sense of male entitlement, while subordinating women and limiting their power and freedom. Conduct based on this thinking can include a range of abusive and controlling behaviours including harassment and bullying. Misogyny can be conscious or unconscious, and men and women both can be socialised to accept it.’

At our last meeting on 3 September, which covered misogyny in the workplace, we included a lived experience panel. This was made up exclusively of current and former female MSPs from all of the main political parties; we worked closely with the Scottish Parliament to arrange this. The safe and secure setting within our closed meetings provided participants an opportunity to share personal accounts of what it is like being in the public eye and the experiences that they have had as a result of this, relevant to our work. I am pleased that all the attending MSPs welcomed our working definition and felt it reflected their own experiences of such conduct.

We are currently undertaking a mapping exercise to map out misogynistic behaviours against the current criminal law to assist us in making decisions about whether there are gaps in the law or where there is a failure to implement existing legislation in a way that protects women and girls. To do this, we will use a list of behaviours identified from all our research and from the 930 responses to our lived experience survey that we ran in collaboration with the First Minister’s National Advisory Council on Women and Girls.

The survey asked a series of questions about recent experiences of misogynistic conduct and whether they were reported to the police and or other authorities and where it occurred (the home, education, online and public spaces e.g. the street, bars, shops, restaurants, public transport, the workplace). We also asked if they thought there was a gap in the law that would require a specific criminal offence to tackle misogynistic conduct. The survey responses provide us with ‘real life’ examples and with a lot of significant data that will be of benefit out with this exercise.

The majority (44.7%) of participants were in the 45 - 59 age category, with smaller percentages in the 18 - 24 (2.9%) and 25 - 34 (13.1%) age categories. We know from our other research that young women are at a higher risk of misogynistic behaviour than older women so this has implications for our survey. However, it also highlights the lived experiences of an age group not often focused on in the literature.

The analysis of respondents’ lived experiences has been carried out and I’ve included some top-line findings below:

• The most common misogynistic behaviours experienced or witnessed ranged from whistling, name calling, comments on physical appearance to physical violence (or threat of), unwanted touching and sexual assault (or threat of).
• The majority (63.5%) of misogynistic behaviours experienced were on the streets, followed by online, and the majority (72.8%) of misogynistic behaviours witnessed were online, followed by on the streets (71.4%).
• Many experiences included more than one misogynistic behaviour, highlighting an escalating pattern of abuse, where if participants’ did not respond positively or as expected to the first behaviour then more serious behaviours followed.
• Only 0.7% participants reported the experience did not impact them; 75% felt angry, 69.2% felt annoyed or irritated, and 67.1% felt uncomfortable. 42.7% became more vigilant, 33.4% became more suspicious of strangers, and 30% rethought decisions (e.g. clothing choices or posting online).
• Most (93.4%) participants did not report to the police, and 71.9% did not report to another person or agency in a position of authority. Of those who did report, 61.2% reported that the police, person or agency did not take action, 25.3% reported they did take action, and 12.6% reported not knowing if action was taken. Most (61.1%) participants reported being dissatisfied with the response of the police and/or authority, and the minority (4.7%) reported that they were satisfied.
• Of those who did not report, the main reason (52.2%) was believing the police or authority would not be bothered/ interested, followed by believing the experience was not criminal, too trivial or not worth reporting (38.2%).

We have also had the benefit of papers on international and Scottish jurisdictions produced by Scottish Government analysts which will be used to determine if there is a current gap in the law or if better awareness is needed of current law that could address misogynistic conduct.

The working group will go through the identified behaviours and ask the following questions: is the behaviour misogynistic and what category of behaviour does it fall under (sexual abuse, physical abuse, and psychological/emotional abuse). This will be a similar exercise to that which was carried out in the development of the Domestic Abuse (Scotland) Bill and should assist us in determining if further legislation may be required to address misogynistic conduct.

In the coming months the working group will be taking further evidence, including from criminal justice organisations and victim support organisations to hopefully see us conclude the mapping exercise. At this point we will be nearing our conclusions as to whether there is a gap in the law or whether new law is required to address any deficiencies in the current law representing women’s experiences.

The remaining meetings will concentrate on the development of our final report which we are on track to publish by the February 2022, the deadline recommended by the Justice Committee.

I have copied this letter to the Equalities, Human Rights and Civil Justice Committee.

I would be happy to meet with your Committee if you feel that would be beneficial.

Yours 

Baroness Helena Kennedy QC