A misogyny act for Scotland, created exclusively for women to crack down on street harassment, organised online hate and an onslaught of rape and disfigurement threats, has been recommended to the Scottish government by Helena Kennedy.
Set up in February 2021 to consider the creation of a standalone offence of misogynist hate crime, Lady Kennedy’s working group has returned a far more ambitious report that recommends naming explicitly the daily abuses that “absolutely degrade women’s lives”.
Speaking exclusively to the Guardian as she launches the report, Kennedy says she aims to use law as a tool for cultural change, shift the dial to focus on perpetrator rather than women’s behaviour, and set the bar for change across the rest of the UK.
After a year in which there has been mass mobilisation of women in response to individual tragedies like the murders of Sarah Everard and Sabina Nessa, revelations of embedded misogyny in the Met and Police Scotland, and ongoing anger at how women are expected to manage their own safety, Kennedy is blunt about the need for a “transformative” change.
The proposed Misogyny and Criminal Justice (Scotland) Act would create a new statutory misogyny aggravation operating outside of current hate crime legislation, as well as new offences of stirring up hatred against women and girls – designed to target the growing influence of “incel” culture – public misogynistic harassment, and issuing threats of, or invoking, rape, sexual assault or disfigurement of women and girls online and offline.
It is time to “burst the balloon” of equality before the law, argues Kennedy, a campaigning human rights barrister of five decades, and create legislation that “concentrates the mind” of police, prosecutors, defenders and judges on women’s daily experience.
“What’s become clear to me is that if you don’t deal with the everyday stuff, you’ll never ever deal with the underlying problem, which leads to rape, the killing of women, the horrible abuse that we know all too well,” she said. “You’ve got to deal with a whole continuum.”
She is aware that critics will suggest such proposals could lead to prosecutions for wolf-whistling and are a waste of criminal justice resources. “The way to minimise this is always to say men can’t say: ‘You look lovely today.’ Women are not going to report that to the police, but where women are made to feel that their life is undermined by male conduct, that is abusive, humiliating, degrading, the police have to make space for it and make resources available.”
Extensive research by the group into women’s experience – from the aggressive propositioning of women in hijab to sexual threats issued to girls leaving the school gates – revealed that women are “not aware of [existing laws that might protect them] and the police don’t reach for it”.
By specifically enacting a misogyny bill “you’re telling women there is special law made available for them”, Kennedy explains. “I want the police to be saying, when when something happens to a woman, is this misogyny or not?”
Calls to treat misogynist abuse – and in particular street harassment – as a hate crime have been spearheaded in England by Labour’s Stella Creasy, though MPs voted down a Lords amendment to do just that at the end of February.
Although Kennedy had supported Creasy’s campaign in the Lords, she believes hate crime is the wrong vehicle. Women are not a minority group, which hate crime protections were designed for, and – as the report states – “misogyny is so deeply rooted in our patriarchal ecosystem that it requires a more fundamental set of responses”.
The group’s formation coincided with a toxic row about the Scottish government’s hate crime bill, its protections for both women and transgender individuals, and whether to add sex to the list of other protected characteristics, such as race and religion.
The report is clear: “It is our preferred view that no offence should be created that requires a woman to prove that she is a woman.”
Misogynist offending occurs on a continuum, she says, “and this lower level stuff creates a normalising of behaviours that can eventually lead to much graver offending against women”. But even without escalation, “this lower level stuff absolutely degrades women’s lives, women choose not to put themselves in the public domain, women don’t go out late in the evening, women have to circumscribe their lives because of male behaviour. We have to do something about that”.
