Make misogyny a hate crime

1.       Hate crimes are incidents of violence or hostility directed towards a victim because of a protected characteristic. These are:

race

religion

sexual orientation

disability

being transgender.

2.       In England and Wales, the defining feature of hate crime law is sentence aggravation. But hate crime legislation also creates 11 aggravated “versions” of specific offences such as assault, e.g. racially aggravated assault. These offences are aggravated on racial or religious grounds only: there is no “disability aggravated assault” offence. With disparity in the way protected characteristics are treated, critics argue this is wrong in principle. Someone who is assaulted on disability grounds should be afforded the same protection as someone assaulted on grounds of race. Notable also, is the absence of sex or gender from the list. The Equality Act 2010 recognises sex in the context of discrimination at work and wider society, so why is it not recognised under hate crime law?

3.       In a review into the adequacy and parity of hate crime legislation, the Law Commission considers the potential for recognising a gender or sex-based hate crime. Below, we summarise some of the Commission’s findings. (The Consultation Paper and all references can be found at https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2020/10/Hate-crime-final-report.pdf, chapter 12). Where appropriate, we have complemented the Commission’s findings with additional evidence.

Violence against Women and Girls (VAWG)

4.       “Women are disproportionately the victims of certain crimes and criminal contexts”; - for example, sexual offences, FGM, domestic abuse, online abuse and public sexual harassment. This is borne out globally. It is estimated that 1/5 women will experience sexual assault in their lifetime compared with 4% men. ¼ women will experience domestic abuse in their lifetime. Between 2009 - 17 a woman was killed by her male partner or former partner every four days. Online, “violent and sexualised abuse directed at women…on Twitter has been widely documented.”; in 2018 Jess Phillips MP received 600 rape threats in one evening.

5.       Women also experience abuse in public spaces from gendered slurs such as “bitch”, “slag”, “slut”, to physical assault. “Our Streets Now”, a campaign group aimed at ending public sexual harassment, report that 2/3 girls receive unwanted sexual harassment in the UK. In France recently, a 22-year old woman was attacked by three men who complained about her wearing a skirt. She was called a “whore” before two of them held her and a third hit her in the face, causing a black eye.

6.       Reflecting the intersectional nature of hate crime, harassment of black women is often “racialised” (Gal-dem, 2017). “Women of colour…” have been “referred to as “exotic” by men on the streets” which can descend into gendered and racist abuse - a blend of racism and sexism - termed “misogynoir”. (Bailey and Trudy, 2018).

Are women targeted because they are women?

7.       “It is generally agreed that disproportionate violence against women and girls is not random”. The Committee on the Elimination of Discrimination Against Women stated that gender-based violence is rooted in “the ideology of male entitlement and privilege over women…social norms regarding masculinity, the need to enforce gender roles, or prevent, discourage or prevent what is considered to be unacceptable female behaviour…”.

8.       Preamble to the Istanbul Convention noted that violence against women is a “manifestation of historically unequal power relations between men and women which have led to domination over and discrimination against women by men…and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position..”

9.       Violence is therefore viewed as a mechanism of control: sexual offences and domestic violence have been conceptualised as “conducts which are intended to subjugate and subordinate women” (Walters and Tumath, 2014). Rape, it has been argued, is a “clear demonstration of dominance over women” (Ibid.). “Street harassment, like rape, is about asserting dominance over women where women appear vulnerable” which is connected to systems of patriarchy (Fogg-Davis, 2006). Ideas relating to male entitlement are reflected in a street harasser ceasing to desist, particularly when a woman does not engage:

“When I was walking home the other day a guy shouted ‘hey beautiful’ at me and when I ignored him he changed direction to follow me down an empty street and when he caught up with me he tried to ask me out. I told him ‘no, sorry’ but he wouldn’t leave me alone until I told him why”.                                                                                               Our Streets Now

10.   Junior interior Minister Marlene Schiappa said of the assault in France: “A woman is never hit because she wears a skirt. A woman is hit because there are people who are misogynistic, sexist, violent and who free themselves of any law or any rule of civility by striking them.”

11.   Evaluating these findings, the Law Commission concludes that “there is overwhelming evidence that women and girls are targeted for certain crimes, and arguments which link this targeting to prejudice or hostility towards women’s gender.” It reasons that there is “demonstrable need” for granting protection to women and, by extension, sex or gender in the criminal law.

12.   But it is not just in the criminal context that misogyny manifests; prejudice towards women often underlies unequal treatment, abuses of power and stereotyping in the law.

13.   In 2019, the International Bar Association revealed that 1/3 women experience sexual harassment in the Legal Profession compared with 1/14 men, an issue exacerbated by reporting fears or a “gentlemanly culture” which considered it inappropriate to call out bad behaviour (Association of Women Barristers, 2019). A woman who reports sexual harassment may be disbelieved, demoted, or sacked instead of supported, protected and believed. (Times Up, 2020). A culture of impunity affirms male entitlement, power imbalances and stifles women’s progression.

14.   Expectations as to acceptable female behaviour (AWB, 2019) also reflects the sexism that still exists. Agitated, humourless and stuck-up, are rarely, if ever, terms used to describe a male barrister asserting his case. In April, the Health Secretary, Matt Hancock, advised Dr Rosena Allin-Khan to take a leaf out of the Shadow Health Secretary, Jonathan Ashworth’s book in terms of her tone when she posed a question about the lack of coronavirus testing. The incident triggered “that would never happen to a man” responses - a collective cognisance perhaps, that as women, we know we are policed in a way that men are not.

15.   These behaviours reverberate across the profession, causing harm to women as a whole, (Walters and Tumath, 2014). In order to avoid being criticised for standing firm, or rebuked for calling out bad behaviour, women inadvertently, yet understandably, conform to the characteristics expected of them - in a self-fulfilling prophecy. The male hierarchy is preserved, and women are subjugated:

“Women barristers often found themselves excluded from conversations about cases while in robing rooms and bar messes – particularly in multi-handed cases where they found themselves being ‘talked over’ by male co-counsel…There appeared to be tacit acceptance amongst certain sections of the profession of this kind of behaviour.”(AWB, 2019).

16.   Or, in another example, where a woman risks her position if she reports sexual harassment so - to escape her harasser - ends up leaving her job.

17.   These concerns impact economic equality and gender equality more widely. 16% female Queen’s Counsel is a statistic that speaks for itself. It is widely acknowledged that cultural as well as systemic issues contribute to the high attrition rate of women in the law.

18.   Arguably then, the “symbolic, declaratory impact of recognising gender-based hostility and prejudice in the law” will be of particular benefit and significance. Harsher sentences and aggravated offences will ensure sex or gender is protected in the same way as race or religion. But recognising that crimes happen to women because they are women will also lend support to the bigger picture of gender inequality: that unequal treatment or inequitable pay is also linked with prejudice against women. It will shift focus from women being viewed as the issue (as is the case with many women who report harassment), onto the prejudice itself.

19.   In its review, the Law Commission provisionally proposes that sex or gender should be a protected characteristic under hate crime law. It suggests “carve outs” for sexual and domestic abuse offences. This is to recognise that all sexual and domestic abuse offences committed by men against women should be understood as inherently misogynistic and that a gender or sex based hate crime may disrupt this [Fawcett Society] - or contribute to damaging myths about “real rape”.

20.   As part of the Consultation Stage of the project, the Commission is seeking responses to questions including whether protection should be limited to women or gender-neutral and whether the more inclusive term, “gender”, should be used instead of “sex”.

21.   The Commission invites responses until 24 December 2020.