Misogyny is defined as the dislike of, contempt for, or ingrained prejudice against women or girls. On 23 November 2020, Baroness Donaghy is due to ask the Government what plans it has to make misogyny a hate crime.

This In Focus article explains what ‘hate crime’ means, how it is legislated, and recent calls for women subjected to misogynistic behaviour to receive protection under hate crime laws.

What is ‘hate crime’?

A ‘hate crime’ is defined by the Crown Prosecution Service and police forces in England and Wales as:

Any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice, based on a person’s disability or perceived disability; race or perceived race; or religion or perceived religion; or sexual orientation or perceived sexual orientation or transgender identity or perceived transgender identity.

Disability, race, religion, sexual orientation and transgender identity are the five nationally recognised protected characteristics for hate crime in England and Wales. ‘Hostility’ is not defined in law and should be interpreted using its everyday meaning. The Crown Prosecution Service states that hostility can include ill-will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike.

As not everything reported to the police will be a crime, police forces undertake initial investigations to determine whether an incident is a hate crime, or a non-crime hate incident. Where it is established that a crime has not taken place but a victim or other person perceives that the incident was motivated wholly or partially by hostility, the College of Policing Authorised Professional Practice guidance (APP guidance) confirms that the incident should be recorded as a ‘non-crime hate incident’. Collecting data on non-crime hate incidents enables police forces to identify community tensions and implement preventive activities where necessary. Records of non-crime hate incidents may show up on an enhanced Disclosure and Barring Service check of the individual responsible for the incident.

In England and Wales, hate crimes that are motivated by hostility towards the protected characteristics are monitored annually by the Government as part of the annual data requirement. The five characteristics are the minimum categories that police force are expected to record.

Hate crimes and non-crime hate incidents can also be committed against individuals who are targeted because of a characteristic that is not one of the five protected characteristics. Police forces are free to extend their own hate crime policies to include hostilities that may be prevalent in their own force areas.

Recent Home Office hate crime statistics show that there were 105,090 hate crimes recorded by police forces in England and Wales in the year ending March 2020. These figures excluded Greater Manchester Police. This was an increase of eight percent when compared to the year ending March 2019.

Hate crime legislation in England and Wales

There is no specific hate crime offence in England and Wales. The three legal methods introduced to tackle hate crime are:

  • racially or religiously aggravated offences: this includes offences such as assault and public order offences that, if motivated by hostility or where a defendant shows hostility, can be treated as racially or religiously aggravated;
  • specific offences that will always be considered a hate crime: this includes offences such as ‘incitement to racial hatred’ (section 18 of the Public Order Act 1986) and ‘racialist chanting’ (section 3 of the Football (Offences) Act 1991); and
  • enhanced sentencing powers: this requires judges to treat the fact that an offence involved hostility on the basis of a protected characteristic as an aggravating factor when sentencing. This can lead to an increase in the sentence imposed.

Calls for change

Calls for sex and gender to be recognised as a protected characteristic for hate crime have been raised for years. There have been several campaigns launched to this effect, including one by the charity Citizens UK in 2015.

Nottinghamshire Police became the first constabulary in England and Wales to recognise misogyny or gender as a hate crime category. This led to the charity Women’s Aid calling for other police forces to follow Nottinghamshire Police’s lead and drive a culture change. Several other constabularies have since included misogyny in their hate crime policies, including North Yorkshire Police.

The topic has also been raised in Parliament. In 2018, during a Westminster Hall debate moved by Melanie Onn (the then Labour MP for Great Grimsby), MPs called for an extension to the five strands of monitored hate crime to include misogyny.

In June 2020, an amendment tabled to the Domestic Abuse Bill by Stella Creasy (Labour (Co-op) MP for Walthamstow), Christine Jardine (Liberal Democrat MP for Edinburgh West) and Liz Saville Roberts (Shadow Plaid Cymru Spokesperson for Women and Equalities), sought to require all police forces to record offences which involved hostility or prejudice based on sex. This amendment, amendment 84, received widespread support. This included support from the mayors of London, Greater Manchester, Liverpool city region and Sheffield city region, as well as organisations such as Refuge, Southall Black Sisters and the Fawcett Society. The amendment was subsequently withdrawn after debate during the public bill committee in the House of Commons. The bill is currently awaiting its second reading in the House of Lords.

Despite widespread support, concerns have also been raised about the impact that making misogyny a hate crime could have on police resources. In 2018, the Guardian cited Sara Thornton, the then chair of the National Police Chiefs’ Council, as saying that the focus should be on “core policing” due to “overstretched” police resources. The Guardian also cites Cressida Dick, the commissioner of the Metropolitan Police Service, in support of Ms Thornton, as saying:

In terms of misogyny, we have hate crime in legislation currently. We have aggravating factors, racially, or race hate. We have specific statutes and offences, we don’t have those in relation to gender-related crime or misogyny and, in my view, we should be focusing on the things that the public tell me they care about most.

Law Commission review of hate crime

On 18 October 2018, the Law Commission announced it would be leading a wide-ranging review into hate crime. This stemmed from a Government commitment secured by Ms Creasy during a debate on the then Voyeurism (Offences) (No.2) Bill in 2018, which dealt with ‘upskirting’.

The Law Commission’s first report, published in March 2019, set out the review’s scope, terms of reference and key considerations. This included plans to analyse how hate crime law had developed and to consider the existing range of protected characteristics.

The review would build upon an earlier review that had been undertaken by the Law Commission, Hate Crime: Should the Current Offences be Extended?, in 2014. The 2014 review recommended that a full-scale review of the operation of aggravated offences and the enhanced sentencing system be conducted to determine what characteristics need to be protected, amongst other things.

The Law Commission launched a consultation on 23 September 2020, seeking views on its proposals for reform of hate crime laws. Proposals include:

  • adding sex or gender to the protected characteristics;
  • equalising protection across all of the existing protected characteristics. This would involve extending the application of aggravated offences, stirring up hatred offences, and potentially football chanting offences to those characteristics that are not already covered; and
  • establishing criteria for deciding whether any additional characteristics should be recognised in hate crime laws, and consulting further on a range of other characteristics, notably “age”.

In reference to the Law Commission’s proposal that sex or gender should become a protected characteristic, Penney Lewis, the criminal law commissioner, is cited by the Guardian as saying:

Our proposals will ensure all protected characteristics are treated in the same way, and that women enjoy hate crime protection for the first time.

The Law Commission’s consultation is scheduled to close on 24 December 2020.

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Cover image by Dan Edge on Unsplash.