Top barrister to lead working group on misogynistic harassment

Leading barrister and human rights expert Baroness Helena Kennedy is to chair the working group which will consider the criminalisation of misogynistic harassment.

Justice Secretary Humza Yousaf confirmed the appointment to the Justice Committee on Tuesday morning, as it held its final stage one evidence session on the hate crime bill.

He also confirmed there was no intention to add sex as a statutory aggravator to the bill at this stage, but it could be added later should Kennedy recommend it.

Two women’s rights organisations – Scottish Women’s Aid and Engender – told MSPs that sex should not be added as an aggravator in the bill, as it could be seen as a purely symbolic move without the ability to be enforceable.

Emma Ritch, executive director of Engender, said: “It’s fundamentally contradictory, according to the analysis of violence against women that Scotland uses, to say that some incidents of violence against women are a product of discrimination on the grounds of sex or animus on the ground of sex, and some are not.

“That’s just not how we understand violence against women. That really does lead to the potential for Equally Safe, our world-leading violence against women strategy, to be undermined by such an approach.”

Ritch went on to warn that hate crime is poorly understood in terms of how it applies to women. She added: “Rushing to legislate in a way that hasn’t met women’s needs in other jurisdictions runs the risks of entrenching that misunderstanding further in criminal justice bodies, in public understanding and also in women’s perception of what the state will or will not tolerate for them and their lives.”

However, For Women Scotland argued in favour of adding sex to the bill, pointing to concerns that not to do so would create a hierarchy of equality.

Director Susan Smith said: “It may not be perfect at the moment, but it could be a start in the interim. Symbolism has been mentioned, and I think if you are looking at symbolism you also have to consider the symbolic impact of saying, even though we know at this point there is an epidemic of violence against women and harassment of women, that you are content as a parliament or as a country to push that off until an unspecified date.”

Yousaf later gave assurances to the committee that there was “no desire to dither or delay” on the potential for standalone legislation against misogyny and he insisted Kennedy was keen to “move forward with pace”.

Kennedy will determine the membership of the working group and its remit shortly.

A call was also made by For Women Scotland to drop the section of the bill on stirring up hatred “almost in its entirety” due to the “chilling effect” this would have on free speech. Smith highlighted that her own organisation has been accused of hate. She said: “There’s a contested nature of hate and we’ve certainly had accusations levelled at us for all kinds of reasons, simply for talking about facts and biology.”

She warned: “The stirring up part of this bill has the potential to make life very, very much harder for a number of people and to use this law as a weapon.”

However, Yousaf insisted that expressing an opinion which may be offensive would not be enough to lead to a prosecution. It would also need to be proven that a person intended to be threatening or abusive.

Committee convener Adam Tomkins asked: “Could the bill, if enacted in its present form, be used to criminalise expressing the opinion that biological sex is immutable?”

Yousaf replied: “No, not as an opinion. It may well be offensive to some, it may be controversial to others, it may be absolutely the mainstream view for many others, but simply expressing an opinion isn’t itself criminal.

“If the behaviour that accompanies that expression is proven beyond reasonable doubt that it was intended to stir up hatred and also was threatening and abusive, then of course they may well face a criminal sanction. That is not down to perception of any particular victim or of anyone in society, but an objective analysis by the court.

“So, expressing an opinion by saying a trans woman is not a woman in itself is not going to lead to a prosecution under this legislation.”