Law Commission proposes hate crime classification for misogyny

On 23 September, the Law Commission published its consultation paper on hate crimes and hate speech laws. It examined the effectiveness and reach of the current legislation and focused particularly on areas that needed developing and expanding.

Specifically, the consultation paper recommended that sex or gender should be included as a protected characteristic for the purposes of law. This recommended reform was made on the basis of “overwhelming” evidence that women and girls are targeted for certain crimes, and that this targeting is motivated by “prejudice or hostility” towards women’s gender.

The consultation paper has garnered support from many of those who have been campaigning for misogyny to be recognised as a hate crime for years, including Citizens UK.

The statistics

The statistics on hate crimes fuelled by misogyny are shocking. According to figures revealed by the Fawcett Society, the most common cause of hate crime for women, is gender.

Moreover, the women’s rights charity revealed that there were 67,000 incidents of gender hate crime last year, 57,000 of which were targeted at women. Reflecting on these figures, Sam Smethers, Fawcett Society Chief Executive, said: “This data should be a wake-up call to all of us, but it is just the tip of the iceberg. Women are routinely targeted with abuse and threats online and in our streets. We know that black women, Muslim women and Jewish women are particularly affected. The way we tackle hate crime must reflect that”.

She added: “We have to recognise how serious misogyny is. It is at the root of violence against women and girls. Yet it is so common that we don’t see it. Instead it is dismissed and trivialised. By naming it as a hate crime we will take that vital first step”.

Elsewhere, in the Citizen’s UK report, “Overcoming everyday hate in the UK,” the community organising group highlighted some concerning facts. First, despite gender being a factor in 35% of all existing hate crimes, gender is not currently protected under hate crime law. The report also found that Muslim women were disproportionately affected by hate crime.

Exploring patterns of targeting, the group also found that that 45% of women had been threatened with sexual violence, in comparison to just 16% of men. Meanwhile, a shocking 43% of women had been subjected to sexual assault, compared with 12% of men.

The current law in England and Wales

In England and Wales, hate crime is currently regulated by three sets of provisions. The Crime and Disorder Act 1998 (CDA 1998), covers aggravated offences, specifically relating to “racial or religious hostility”. Meanwhile, the Criminal Justice Act 2003, (CJA 2003), deals with enhanced sentencing provisions, for crimes that are motivated by hostility towards other protected characteristics. Lastly, the Public Order Act 1986 (POA 1986), applies to offences related to “stirring up hatred” against protected characteristics.

At present, characteristics which are granted enhanced criminal protection include, race, sexual orientation, religion, disability and transgender identity. Furthermore, if a crime is found to be motivated by hostility towards one of these protected characteristics, there will typically be an enhanced sentence given to the defendant.

These laws however, are not without their flaws and have received widespread criticism. The law is not only overly complex, but it also lacks clarity, with overlapping legal mechanisms. There is also a disparity in the way that the existing five protected characteristics are treated. Specifically, disabled and LGBT people are protected to a lesser degree.

It has also been found that hate crimes are particularly hard to prove and difficult to prosecute. In 2018/19, despite 103,379 hate crimes being reported to police in England and Wales, there were only 12,828 hate crime prosecutions and 10,817 convictions.

Another major criticism of the current law is that it needs to be expanded to include other protected characteristics, such as gender and age, in response to both misogyny and ageism.

However, there has been progression on these issues on a more localised level. Back in 2016, Nottinghamshire police were the first force in the UK to categorise crimes such as sexual assault, and the public harassment of women, as misogyny hate crimes. Since then, other UK police forces have introduced similar schemes including, North Yorkshire, Northamptonshire, and Avon and Somerset.

More recently, on March 9 2020, Wera Hobhouse, the MP for Bath in South-West England, presented her Hate Crime (Misogyny) Bill (2020). The bill proposed that misogyny, defined as “the dislike of, contempt for, or ingrained prejudice against women,” should be considered an aggravation in law. If passed, this would mean that offences made on the basis of misogyny, would lead to defendants being awarded lengthier sentences. The bill is tabled to have its second reading on 13 November 2020.

The Law Commission’s recommendations

Reflecting on the reforms required to improve the current legislation on hate crimes, the Law Commission’s consultation paper made a number of recommendations.

One of the provisional proposals made within the consultation paper, was the establishment of a criteria for deciding whether any additional protected characteristics should be recognised. This criteria would be made up from the following:

• Demonstrable need – Here, evidence would need to be produced showing that crime based on hostility or prejudice towards the characteristic group is prevalent
• Additional Harm –  This would require evidence showing that criminal targeting based on hostility or prejudice towards the characteristic causes additional harm to the victim, members of that targeted group, and society
• Suitability – To fulfil this criteria, evidence would be required showing that the inclusion of the protected characteristic as a hate crime, would “fit logically” within the broader offences and sentencing framework. Additionally, it would have to be proven as workable in practice, as well as proved to represent an “efficient use of criminal justice resources”. It would also have to be “consistent” with the rights of others

The paper also argued that sex or gender should be included within hate crime laws, due to the “wealth of evidence” of the targeting of women, and the “additional” harm that this causes. That being said, the paper did highlight that there could be issues in relation to the “suitability” criterion. One particular practical concern is that hate crime laws could prove “unhelpful” in the context of sexual and domestic abuse offences.

Commenting on the Law Commission’s consultation paper, Professor Penney Lewis, criminal law commissioner, said: “Hate crime has no place in our society and we have seen the terrible impact that it can have on victims. Our proposals will ensure all protected characteristics are treated in the same way, and that women enjoy hate crime protection for the first time”.

Support for the proposals

The Law Commission’s proposals have been met with widespread support across the board.

Labour MP Stella Creasy, has been campaigning for misogyny to become a hate crime for years. Commenting on the importance of the consultation she said: “Misogyny drives crimes against women – recognising that within our criminal justice system will help us detect and prevent offences including sexual assault, rape and domestic abuse. I now urge every woman who has walked with keys in her hands at night, been abused or attacked online or offline to come forward and be heard in this consultation”.

Meanwhile, many from Citizens UK have expressed their support of the consultation. Rabbi Robyn Ashworth Steen, a Citizens UK leader and Rabbi from Manchester Reform Synagogue, said: “This is an excellent decision by the Law Commission and their findings are a stark reminder that even as the pandemic occupies most waking moments, there are clear issues of injustice the Government can make good progress on. I’ve seen all too clearly the impact of intersectional hate crime targeting women in my congregation and a common sense change specifically addressing incorporating hate crime, to protect all women, would be warmly welcomed by my community”.

Taj Khan, a Citizens UK leader and member of Newcastle Central Mosque, added:

“I am glad the Law Commission listened to the voices of women in the North East and recommended new measures in the law to give women protection which is long overdue. I am easily identifiable as a hijabi Muslim woman and have experienced what I call a triple whammy of hate as a result. It is humiliating and soul destroying to be targeted by hate simply for being a woman, a brown woman and a Muslim woman. I look forward to seeing the Government now take the necessary steps to make this important change to hate crime law”.

Lucy Hadley, campaign and policy manager at Women’s Aid, also welcomed the proposals: “Sexism and women’s inequality are the root causes of violence against women – including domestic abuse, sexual violence, street harassment including ‘upskirting’, and online forms of crime – and these often intersect with other identities, including race and ethnicity, sexuality and disability”.

She added: “Making clear that crimes happen to women ‘because they are women’ could help to send a clear message that women will be believed, protected and supported if they experience sexist violence and abuse”.

The Law Commission’s call for evidence is open from 23 September 2020 until 24 December 2020. Official recommendations to the government will be made next year in 2021.