Misogynistic crime: a new controversy
Why group membership is not crucial to applying hate crime law or the proposed Misogyny Bill
The controversy following the Hate Crime and Public Order (Scotland) Act 2021’s commencement has opened a new front today, with criticism of the First Minister’s comment that a forthcoming Misogyny Bill would cover trans women. Mr Yousaf was quoted by STV as saying that “If a man threatens to rape a woman, he is unlikely to know if the victim is born a woman or a trans woman. That behaviour should logically be seen as misogynistic.”
That has led to criticism, but I hope to show here that this is how existing hate crime law (on which the new legislation is in part modelled) works, and how it ought to work. This is not because the legislation will take any stance on gender identity or self-identification; it would be surprising if it did. It is because, regardless of one’s views on those broader issues, the law - properly - does not require the victim of a hate crime to actually be, or to identify as, a member of the group protected by the law, even though in the vast majority of real-life cases they will be a member of the group.
That is counter-intuitive and requires some explanation. It may be easiest to start with an example of how existing hate crime legislation is applied.
Consider the following case. Alan, a gay man, is leaving a gay bar in a city centre. As he leaves, Brian punches him in the face while shouting a homophobic insult. This is a clear case of an assault aggravated by prejudice relating to sexual orientation, and has been since 2009.1 Let us call this the “core case”, and consider the following variants:
(1) Alan is not in fact gay.
(2) Brian attempts to punch Alan (who remains straight in this variant) but, being very drunk, misses and hits Colin (who is gay, and whom Brian had not noticed) instead.2
(3) The same as (2), but Colin is not gay either.
(4) Brian ignores Alan but instead behaves aggressively towards Alan’s friend Deborah, asking her why she is hanging around with a [insert homophobic insult], and says he will drag her behind the building and show her what a ‘real man’ can do. (Alan is gay in this scenario; Deborah is straight.)
(5) Brian returns later when the street is deserted, and sprays homophobic graffiti on the wall of the bar. The building belongs to Prime City Property, a limited company which does not have a sexual orientation.
Each of these scenarios is a crime (likely assault (1-3), threatening or abusive behaviour (4) or vandalism or ‘malicious mischief’ (5)). And each of them is aggravated by prejudice relating to sexual orientation. That is true even when the victim is straight and even when the victim is not even an actual human being.
But why are these offences aggravated by prejudice? There are two reasons for this. One: the law says so. Secondly, the law reflects sound policy and would not achieve its intended effect otherwise. To take the letter of the law first, section 1(1) of the 2021 Act says that an offence is aggravated by prejudice if:
(a) where there is a specific victim of the offence—
(i) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates malice and ill-will towards the victim, and
(ii) the malice and ill-will is based on the victim's membership or presumed membership of a group defined by reference to a characteristic mentioned in subsection (2) [sexual orientation is one such characteristic], or
(b) whether or not there is a specific victim of the offence, the offence is motivated (wholly or partly) by malice and ill-will towards a group of persons based on the group being defined by reference to a characteristic mentioned in subsection (2).
This provision is satisfied in every one of the five variant cases set out above. In case (1) it is, most obviously, satisfied by Brian having “presumed” (section 1(1)(a)(ii)) that Alan is gay. In cases (2)-(5) it is satisfied by Brian’s motivation, which we can infer from the language he has used, being malice and ill-will towards gay people (section 1(1)(b)).
Three points should be noted here, which may be of importance given the present controversy. First, if we removed the reference to “presumed membership” from the legislation, case (1) would still remain an offence aggravated by prejudice because of section 1(1)(b).3 Second, although in case (2) the victim (Colin) is gay, the offence being aggravated by prejudice does not depend on that fact, nor would it make sense for it to do so as Brian was unaware of Colin’s existence and so could not be said to have acted by reference to his sexuality. Thirdly, cases (1)-(5) are all, in practice, going to be far more unusual than the “core case”. It is cases like the core case which will make up the vast majority of reports to the police.
But is this good law? This may seem surprising. How can someone who is not themselves gay be a victim of an offence aggravated by prejudice against that sexuality? The answer is that hate crimes are not simply crimes against the individual victim. As two writers put it:4
…hate crimes are ‘message crimes’ that emit a distinct warning to all members of the victim’s community: step out of line, cross invisible boundaries, and you too could be lying on the ground, beaten and bloodied.
The example I have used here, centred on a particular geographical location, is a deliberate choice because it illustrates this problem very clearly. Every one of cases (1)-(5) set out above is a potential deterrent to people wanting to live their lives freely; every one of these cases is an incentive to people to avoid a certain location for fear of themselves becoming a victim. If someone, hearing of the crime that has been committed, decides it is no longer safe for them to visit that bar, why would they be reassured by being told that Brian actually has terrible gaydar and chose to attack a straight man?
There is evidence for this harm to the broader group targeted by the offence from a number of research studies,5 including specific evidence in the context of misogynistic crime.6 This additional harm which results from hate crime is one of the core justifications for recognising hate crimes in law, and can continue to exist even where the victim, exceptionally, does not belong to the protected group. It is also an important rebuttal to people who blithely argue that it “shouldn’t matter” what an offender’s motivation is. On the contrary, the fact that hate crimes cause additional harms of this sort is clearly a relevant factor to be taken into account by the criminal justice system, even if you believe that this can be satisfactorily done by taking the ‘hate crime’ element into account in sentencing without formally recognising it as part of the conviction.
So what does this mean for the Misogyny Bill? We do not yet have the text of the government’s Bill, but it published draft provisions last year as part of a public consultation. These included a provision that an offence would be aggravated by misogyny if:
(a) where there is a specific victim of the offence—
(i) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates contempt, or malice and ill-will, towards the victim, and
(ii) the contempt or malice and ill-will is based on the victim being or being presumed by the offender to be a woman or a girl, or
(b) whether or not there is a specific victim of the offence, the offence is motivated (wholly or partly) by contempt, or malice and ill-will, toward women and girls.
This is very closely modelled on the hate crime legislation quoted above, with the addition of “contempt” as an alternative to the “malice and ill-will” requirement. And as with the hate crime legislation, it is not essential that the victim belong to the protected group.
As with the discussion of hate crime based on sexual orientation above, it can be expected that cases where the victim does not belong to the protected group will be few in number, but the law should recognise such cases if they occur. And the proposed law does not depend on how the victim themselves identifies. The way in which the offender perceives the victim is, in most cases, likely to be important, but this need have nothing to do with the victim’s presentation of their own identity.
To illustrate this, let us return to Brian from our scenario above, and assume he is wide-ranging in his prejudices. On this occasion, he is shocked to read that a new minister, Carol, has been appointed to his local church. Shortly after learning this, he hand-delivers a threatening letter to the local manse, explaining that the appointment of his parish’s first ever woman minister is wholly unacceptable and if Carol does not leave immediately he will himself ensure that a departure happens “one way or the other”.
Brian is arrested for threatening or abusive behaviour, and learns when being interviewed by the police that Carol is, in fact, a man. (His parents were cinema buffs, and fans of the celebrated British film director Sir Carol Reed.7) This would not stop his crime being a misogynistic one. It would be of no reassurance to anyone concerned about Brian’s violent attitudes to women to be told that actually, on this occasion, he had threatened a man by mistake. But nothing in applying the law here turns on Carol’s own identity as a man (let us assume that Carol, childhood teasing aside, has never given a moment’s thought to this point).
A case of this sort would, of course, be very rare. But the law should nevertheless recognise it if it were to occur, just as it has done with hate crime for many years. To not do so would be to create a category of cases where an offender’s behaviour undoubtedly satisfied the proposed statutory test of “contempt, or malice and ill-will” towards women and girls but could not formally be recognised as doing so. Nor, given that the law does not require a victim to belong to the protected group or even for there to be a victim, would there be a ready means of avoiding this result without significantly undermining the legislative scheme.
Now aggravated under the Hate Crime and Public Order (Scotland) Act 2021 s 1; previously under the Offences (Aggravation by Prejudice) (Scotland) Act 2009 s 2.
Although Brian did not know of Colin’s existence, this is an assault on Colin by application of the legal doctrine of “transferred intent”.
You might fairly wonder at this point whether subsection (a) is necessary given that all the cases fall under subsection (b). The value of section (a) is ease of proof - it prevents the offender saying “actually I would have punched the victim regardless and just shouted a different insult”. It is also important in principle because the harms flowing from hate crime, discussed below, result from this demonstration of hostility towards the protected characteristic even if the offender might try to claim that aspect of their behaviour was “just banter”.
B Perry and S Alvi, “‘We are all vulnerable’: the in terrorem effects of hate crimes” (2012) 18 International Review of Victimology 57 at 59.
See J Chalmers and F Leverick, A Comparative Analysis of Hate Crime Legislation (2017) 30-32.
See M Hagerlid, “Swedish women’s experiences of misogynistic hate crimes: the impact of victimization on fear of crime” (2021) 16 Feminist Criminology 504 (discussing what Hagerlid terms the “message effect”).
I had hoped to include an exhortation here to watch The Third Man on iPlayer but, although it was shown on the BBC last month, it is no longer available there. It is, though, worth paying for.