Campaign to make misogyny a hate crime ruled out by Law Commission

A consultation by the Law Commission concluded it would be the “wrong solution to a very real problem” of hostility or prejudice directed against women because of their sex or gender.

Instead, in its report published on Tuesday (December 7), the Law Commission recommends that the Government should consider a new offence to tackle public sexual harassment.

It also proposes extending the existing offence of stirring up hatred (behaviour that incites others to hate entire groups) to cover sex or gender, which would help to tackle “the growing threat of ‘incel’ (involuntary celibate) ideology, and its potential to lead to serious criminal offending”.

Reforms would also ensure disabled and LGBT+ victims of hate crime receive same protection as those targeted because of their race and religion.

But a statement by leading women’s rights and hate crime organisations and campaigners, including the Fawcett Society, Citizens UK, Stella Creasy MP, Rights of Women, the former chief constable of Nottinghamshire Police Sue Fish, and Dr Loretta Trickett of Nottingham Trent University, said the Law Commission had failed to “recognise how hatred drives crimes against women”.

In a joint public response to the Law Commission review on hate crime, they said the report will “leave many women disappointed and frustrated”, adding: “Their U-turn on making misogyny a hate crime not only fails to recognise how hatred drives crimes against women but also means they have offered no clear alternative policies to help address widespread concerns about the lack of action by the criminal justice system.

“The Commission’s review is too narrow and doesn’t recognise the value of including misogyny to enable recording of incidents which are currently invisible. By not joining together hate crime legislation it especially ignores the experiences of women from minority communities who experience hatred based on multiple factors yet all too are let down by the criminal justice system because they do not fit their tick boxes.

“This report must not be used by the Government to kick action on violence against women and girls into the long grass and instead should support proposals for legislation now, including urgently rolling out the recording of misogynist crimes to all police forces. Women and girls have waited too long to be equally protected and will continue to fight for this.”

The possible use of hate crime laws to tackle violence and hostility against women has gained prominence throughout the UK in recent years through initiatives such as Nottinghamshire Police piloting the recording of ‘misogyny hate crime’.

In its summary of the report, the Law Commission said: “We recognise that many people may disagree with our conclusion and find it difficult to understand given the prevalence of sex and gender-based violence and abuse. We have made our recommendations in this regard on the strength of the evidence and policy considerations before us.”

It says adding ‘sex or gender’ to the protected characteristics for aggravated offences and enhanced sentencing “would be ineffective at protecting women and girls and in some cases, counter-productive”.

“For example, if applied in the context of rape and domestic abuse it could make it more difficult to secure convictions and create unhelpful hierarchies of victims,” said the Law Commission. “However, if these contexts were excluded, it would make misogyny very much the poor relation of hate crime laws, applicable only in certain, limited contexts.”

The Commission added: “In reaching this conclusion we emphasise that we are not suggesting that crimes involving hostility against women (or men) are any less serious than crimes involving hostility towards one of the existing protected characteristics.

“Ultimately, we conclude that adding ‘sex or gender’ to the existing regime of aggravated offences and enhanced sentencing is the wrong solution to a very real problem.”

However, it said: “The considerations which have led us to reject extension of hate crime laws to sex and gender do not apply in relation to stirring up hatred. In response to the growing threat of ‘incel’ ideology, and its potential to lead to serious criminal offending, we recommend the creation of an offence of stirring up hatred on the basis of sex or gender.

“This is one context where existing hate speech offences may be usefully adapted to address extreme misogynistic content.”

Professor Penney Lewis, Criminal Law Commissioner at the Law Commission, said: “Hate crime has a terrible impact on victims and it’s unacceptable that the current levels of protection are so inconsistent.

“Our recommendations would improve protections for victims while also ensuring that the right of freedom of expression is safeguarded.”

Dr Trickett, Associate Professor at Nottingham Law School, Nottingham Trent University, has long argued that public abuse of women and girls should be tackled through misogyny lens (see https://www.policeprofessional.com/feature/gendered-hostility-why-greater-recognition-is-needed/)

She said: “In the wake of the Law Commission’s announcement that neither misogyny, sex or gender will be included in hate crime laws, many campaigners on violence against women and girls will be thinking through the implications.

“The news that a public sexual harassment offence may be introduced is welcome and organisations such as Our Streets Now and Plan International are to be commended for campaigning on this.

“The introduction of an offence of public harassment has the benefit of being inclusive but we must guard against any implication that public harassment is de-gendered. Important lessons from use of the misogyny label to define public harassment and violence against women and girls must not be lost.”

Dr Tricket added: “The indications last September were that the Law Commission would recommend the inclusion of sex/gender as a protected characteristic under which crime demonstrating misogyny might also be brought.

“Given its broad inclusivity, the introduction of gender would have been helpful. Instead, we have witnessed a U-turn by the Law Commission and the Government on recognising gender in hate crime laws.

“Introducing sex/gender as a hate crime category would not have implied that all crimes against women would be hate crimes, just as all crimes against members of black, Asian and minority ethnic communities are not automatically racist.  Hate crime does not trump other offences but acts as an additional resource to investigate and prosecute base line offences if evidence that they are motivated by hostility is present.

“The Law Commission proposals are a long way from protecting women and achieving gendered equality and are indicative of a ‘missed opportunity’.”

Labour’s London Assembly Policing and Crime spokesperson, Unmesh Desai AM, said it was “very disappointing that the Law Commission has decided not to support making misogyny a hate crime when this is a step that is clearly needed”.

He added: “It is unacceptable that so many women and girls in our city face routine harassment and abuse.

“Now, at the very least, the Government must waste no time in implementing the Law Commission’s recommendation of introducing a specific offence to tackle public sexual harassment.”

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