Policy paper

Making misogyny a hate crime: Police, Crime, Sentencing and Courts Bill 2021 factsheet

Updated 20 August 2022

The Law Commission concluded in its ‘Hate Crime Laws: Final Report (PDF, 3.2MB)’ (published 7 December 2021) that making misogyny a hate crime may be: “more harmful than helpful, both to victims of violence against women and girls, and also to efforts to tackle hate crime more broadly” and that “…we have reached the view that hate crime recognition would not be an effective solution to the very real problem of violence, abuse and harassment of women and girls in England and Wales, and may in fact be counterproductive in some respects.”

1. How is the Government responding?

We are asking the House of Commons to disagree with the House of Lords amendment that seeks to make misogyny a hate crime. This amendment seeks to add the characteristics of sex or gender to hate crime laws, as well as to oblige police forces to collect data on crimes motivated by hostility or prejudice towards these characteristics.

This is because expert opinion and major women’s groups, such as Women’s Aid and Rape Crisis, believe it may actually be harmful and make it even harder to secure convictions. In 2018, the Government asked the Law Commission to conduct a wide-ranging review into hate crime to explore how current legislation could be made more effective, which included whether ‘sex or gender’ should be added to the various characteristics currently protected by hate crime laws.

The Law Commission explored every option and made independent recommendations to the Government. Its report (published in December 2021) highlighted concerns around the potential negative consequences of adding these characteristics, including the assessment that this could put prosecutions of the most serious crimes targeting women and girls at risk. It took three years to complete its work and did so on the starting basis that it felt VAWG was a very serious issue. But it found that no expert stakeholder organisations – even those whose focus is on protecting women and girls – could agree on a model. Like most organisations who inputted to the Law Commission’s consultation, the largest sexual violence support charity in England and Wales opposed making misogyny a hate crime because of the risks it would bring.

Further information can be found in the Law Commission’s report - ‘Hate Crime Laws: Final Report (PDF, 3.2MB)’ (see Chapter 5).

2. What is the Government doing?

While we do not believe we should legislate to make misogyny a hate crime, the Government is taking active steps to tackle violence against women and girls.

Tackling violence against women and girls is a top priority for the Government. Crimes which disproportionately affect women and girls such as domestic abuse, sexual violence, stalking, and forced marriage can have a profound and long-lasting impact on victims and have absolutely no place in our society.

There is significant Government action in this area, including: * our cross-Government Tackling VAWG Strategy; * a complementary Domestic Abuse Strategy in the coming months; * legislating against stalking; * legislating against forced marriage; * legislating against FGM; * legislating further against domestic abuse to include coercive control; * legislating against so-called “revenge porn”; * legislating against “upskirting”; * increasing funding for victim and witness support services to just under £151 million in 2021-22, and a further increase to £185 million by 2024/25. * taking action to improve outcomes for rape cases and the experience of victims at every stage of the criminal justice system through our robust, Rape Review and Action Plan; * to monitor progress on our ambition, on 9 December 2021 we published our first six-monthly progress report and ‘scorecard’ on adult rape cases; * funding five police forces to pilot a new approach to investigating rape cases through Operation Soteria and have committed to expanding this to a further 14 police force areas and their corresponding CPS areas; * more than doubling the Safer Streets Fund, to £45 million for measures such as street lighting and CCTV; * a commitment to a nationwide public behaviour campaign that will challenge perpetrators and ensure victims of abuse receive support, and more research into perpetrator prevention and education projects for children and young people. * HMICFRS provided their report and recommendations following their inspection into police handling of VAWG and we have supported the appointment of DCC Maggie Blyth as national VAWG police lead to help address this;

3. What legislation has been passed in recent years to tackle VAWG?

This Government will not fail to legislate where there is a strong case to do so. In recent years we have: * Passed the Domestic Abuse Act 2021 which also: placed on a statutory basis the principle that it is not a defence to argue a person consented to others causing them serious harm or even death, to counter the suggestion there is a “rough sex defence”; created a new offence of non-fatal strangulation; extended jurisdiction for a serious of assault and sexual offences to offences committed abroad by UK citizens or those resident in the UK. * Passed the Stalking Protection Act 2019; * Introduced new offences to tackle so-called “upskirting” and “revenge porn”, the latter was extended by the Domestic Abuse Act to include, those who threaten to post or disclose such images. * And in the current Bill we are: * Introducing a series of sentencing measures to ensure that the most serious sexual and violent offenders spend longer in prison; * allowing the piloting of a problem-solving court approach for domestic abuse perpetrators; * reforming pre-charge bail to better protect vulnerable victims and witnesses; * placing on a statutory footing the arrangements governing the extraction of information from digital devices to better protect the privacy of victims of crime; and * further strengthening the management of sex offenders and those who pose a risk, including by enabling positive obligations to be imposed on those who pose a risk of sexual harm through Sexual Harm Prevention Orders and Sexual Risk Orders; * introducing a new offence to tackle breastfeeding voyeurism; and * extending the time limit for prosecution of common assault or battery in domestic abuse cases.

4. Background

The Law Commission reported its final recommendations for the reform of hate crime laws on 7 December 2021.

In its report, it strongly recommended against adding sex or gender to these laws, except as it concerns the rarely used Stirring Up of Hatred (‘hate speech’) offences.

It argued that to add these characteristics would be counterproductive, particularly noting that hostility on grounds of sex/gender would be difficult to prove in court, with misogyny (or misandry) often manifesting in subtle and ingrained ways and where it would therefore be difficult to illustrate such hostility was objectively demonstrated, or formed part of the motivation of, an offence.

It notes this potentially could give rise to even greater difficulties in prosecuting crimes which disproportionately impact women and girls, such as sexual offences and domestic abuse.

It could additionally result in a two-tier hierarchy of how serious crimes are designated, with e.g. some rapes being determined as “misogynistic” and some not (where there is a lack of evidence as to misogynistic motivations of the offender).

One possible solution that the Law Commission explored was to exclude a range of offences, such as domestic abuse and sexual offences, from hate crime legislation specifically when hostility on grounds of sex/gender was being prosecuted. This would mean that some crimes subject to a hate crime sentencing uplift would not be available for sex/gender hostility prosecutions where they would be for, e.g. race. This approach appears to resemble the intent the Lords amendment, which excludes domestic abuse and sexual offences from a possible hate crime designation. However, the Law Commission stated such an approach would also not be appropriate: it would create new inequalities in law between sex/gender and other characteristics; it would introduce incoherence and complexity to the law; and it would be tokenistic to exclude a large number of offences which disproportionately harm women.

Rape Crisis England & Wales have echoed this position saying that “Rape prosecutions are already at an all-time low, and we believe adding sex/gender as a protected characteristic would further complicate the judicial process and make it even harder to secure convictions.” and “that a hate crime framework is not suitable for VAWG”. While Women’s Aid have also said that “including VAWG crimes within the hate crime framework could undermine the understanding of VAWG as inherently misogynistic”. - For these reasons, the Law Commission concluded sex/gender should not be added to hate crime laws in any respect (except as it concerns their marginal inclusion in aforementioned hate speech offences).

5. Frequently asked questions

What is happening with the collection of police data related to sex-based hostility that was promised during the passage of the Domestic Abuse Bill?

We are in consultation with the National Police Chiefs’ Council and forces on how to take this forward.

The commitment to explore this experimental collection was made during the debate of the Domestic Abuse Bill, but does not form part of the legislative framework of the Act.

We need to consider this experimental collection in light of the Law Commission’s findings. Police recording is a separate matter to the law, but it is preferable that what the police record also reflects the crimes on the statute book. We also need to take note of the Law Commission’s findings on the effectiveness of recording sex/gender hate crimes by certain police forces to date, including its view that this recording has had limited benefits in improving reporting by women and girls.

Isn’t is wrong to exclude women/sex/gender from hate crimes when other characteristics are included?

The Law Commission describes this argument as ‘superficially compelling’, noting that whilst its exclusion ‘appears arbitrary and problematic on its surface, the legal position is more complex than this’.

It goes on to note that there are ‘suitability concerns surround the possible introduction of sex or gender-based hate crime, which do not apply in the same way to existing characteristics such as race or religion’.

Will the Government undertake to act quickly on the Law Commission’s report and bring forward legislation next year?

The Government will give the Law Commission’s review rapid and full consideration. We are actively considering its findings now.

It is customary for the Government to provide an interim response to a Law Commission review within six months.

There is also a formal legal requirement (under the Law Commissions Act 1965) for the Lord Chancellor to report to Parliament annually on the extent to which the Government has implemented Law Commission recommendations from the preceding year. The Government will report formally on its response to the Law Commission report of 7 December 2021.

What about the Law Commission’s recommendation to explore a separate, non-hate crime, public sexual harassment offence?

Sexual harassment is completely unacceptable and there are existing laws which address this (such as those under the Public Order Act 1986, the Sexual Offences Act 2003 and the Protection from Harassment Act 1997).

We are looking carefully at where there may be gaps in existing law and how a specific offence for public sexual harassment could address those. This is a complex area, and it is important that we take the time to ensure that any potential legislation is proportionate and reasonably defined.

We are committed to ensuring not only that the laws are there, but that they work in practice. In order to ensure that police are confident about how to respond to public sexual harassment, the College of Policing has published new guidance for police officers on how to respond to reports of public sexual harassment.

In July 2021 the Government published a new and ambitious cross-Government Tackling Violence Against Women and Girls Strategy to help ensure that women and girls are safe everywhere – at home, online and on the streets.

This included funding the appointment of a new national policing lead for tackling violence against women and girls, DCC Maggie Blyth. The Government also announced a new, £25 million third round of the Safer Streets Fund, to make public spaces safer for everyone through projects to help women and girls feel safer on the streets, as well as a £5 Million ‘Safety of Women at Night’ fund, focused on the prevention of violence against women and girls in public spaces at night. We announced the results of those funding streams in October and November 2021 respectively.

Also as set out in the VAWG Strategy, our public communications campaign on VAWG will seek to change public attitudes and tolerance to crimes such as public sexual harassment and help create an atmosphere in which women and girls can report such crimes to the police with confidence.

Why would making misogyny a hate crime hinder prosecutions?

Hate crimes need to be proven to a criminal standard. This would mean that both the underlying crime, such as rape, would need to be proven, alongside the element of hostility.

Proving both elements would present additional challenges, in addition to the underlying challenges that already exist when prosecuting these crimes.

It would be necessary to prove in some way that an offender was misogynistic in the context of the individual offence. This might be through evidence of a specific misogynistic motivation or the demonstration of sex-based hostility, such as the use of a gendered slur during the offence. This could be difficult to determine given the nature of VAWG crimes.

The Law Commission concluded: “It might be practically difficult to prove a sex or gender-based aggravation in the context of VAWG crimes that usually take place in private, for example sexual offences or domestic abuse.”

There is also a danger that some sexual offence and domestic abuse cases result in a misogynistic designation and others do not (where there is a lack of specific evidence of hostility), resulting in a two-tier hierarchy of prosecutions for these crimes.

Some police forces/officers have called for misogyny to be a hate crime, are they wrong?

The Law Commission, having considered this issue in depth and taken extensive expert evidence, has concluded that it would not be beneficial to make misogyny a hate crime.

Some forces do currently record sex and/or gender in crime, and some record misogyny as an aggravating factor.

Police recording is a separate matter to the law, but it is preferable that what the police record reflects the crimes on the statute book. We also need to take note of the Law Commission’s findings on the effectiveness of recording sex/gender hate crimes by certain police forces to date, including its view that this recording has had limited benefits in improving reporting by women and girls.