At Rape Crisis England & Wales, we know painfully well that rape and all forms of sexual abuse are devastatingly prevalent in the lives of women and girls, that perpetrators too often get away with these gendered crimes, and that our justice system is failing survivors in devastating ways.
It may therefore seem surprising that a feminist organisation like ours did not support making misogyny a hate crime; at first glance, it appears to make sense. But after careful analysis of the current legal system, and consultation with frontline Rape Crisis Centres and survivors with lived experience not only of sexual violence but also our justice system, we were left with serious concerns that such a measure could actually make it more rather than less difficult for survivors to obtain criminal justice.
In 2020 we submitted evidence to the Law Commission’s review of hate crime legislation, and expressed our view that violence against women and girls would not be better addressed through a hate crime framework, unless and until several issues within the criminal justice system itself were resolved, and public awareness and understandings of sexual violence and VAWG, were improved. The Law Commission published their final report in 2021 and recommended that “sex or gender” should not be added to the protected characteristics and thus that misogyny should not become a hate crime.
You can read our full response to the Law Commission here, but in summary, we believe that including sex/gender/misogyny in the hate crime framework will not provide women with greater protection against violence and harassment as intended, because it will:
Not acknowledge the root cause(s) of VAWG or that it represents a continuum of harms experienced by women and girls throughout their lives
Hate crime offences are generally based on the idea that one person has demonstrated hostility towards another because of a protected characteristic, and that this hostility has been perpetrated during a particular ‘incident’. We believe that this framing makes it more difficult to link individual episodes of abuse to an overall pattern of behaviour rooted in power and control which impacts on multiple women and girls in multiple ways.
There is also a practical difficulty with a hate crime framing in that many perpetrators are known to their victims, including in domestic abuse and other forms of interpersonal violence, such as that within the family. In those circumstances, it may be very difficult to prove the kind of “hostility” that hate crime legislation requires, especially where the abuse is perpetrated within the context of an intimate relationship.
Risk promulgating harmful rape myths
A motivation of ‘hostility’ is most easily applied to sexual violence/abuse perpetrated by strangers, not that which occurs in the context of relationships.
Harmful rape myths include that male violence occurs in isolated incidents, and is perpetrated by ‘deviant’ men, fuelled by jealousy, sexual arousal or anger towards women. Adopting a hate crime framework where we view sexual violence through the lens of ‘hostility’ rather than entitlement and/or domination risks distorting the nature of sexual violence and abuse perpetration, its underlying motivations (and therefore appropriate interventions), as well as how these crimes are experienced by survivors.
Create hierarchies of harm
A hate crime framework may result in there being distinctions made between ‘misogynistic’ and ‘non-misogynistic’ crimes against women, which erases the structural inequalities which underlie all forms of VAWG. There is already an implicitly acknowledged hierarchy of sexual violence in our society, with the ‘real rape’ stereotype of an unknown perpetrator attacking a woman in a dark alleyway, using physical force repeatedly undermining survivors’ assertions about what has happened to them.
RCEW and other organisations have spent years unpicking these myths and addressing the blame, shame and guilt that are felt by survivors as a result of their experience not fitting this stereotype. Adding sex/gender/misogyny to the hate crime framework would ask us to also look for evidence of hostility against women and girls, and therefore creates an additional category of sexual violence in the hierarchy. We know that the intent and impact of sexual violence is the enforcement of male dominance, but we do not believe that viewing sexual violence and other forms of VAWG as hate crimes would draw this out in a helpful way.
Minimise the intersectional and complex nature of VAWG
Women’s experiences are also shaped by other factors, such as their race and/or ethnicity, religious beliefs, socioeconomic status, and sexual orientation. We think a hate crime framing risks discounting these experiences as relevant to their experiences of sexual violence and abuse, and men’s motivations for perpetrating them.
Create additional challenges in prosecuting VAWG offences
Consent (or lack of) in sexual offence cases is already challenging to prove. If ‘sex or gender’ was an aggravated or standalone offence, there would be an additional requirement to prove that hostility was based on this, which could become another barrier in securing a conviction.
Moreover, most VAWG offences take place in private, and most perpetrators are known to their victims/survivors. This makes it much more challenging to prove that sex or gender-based hostility was a feature of the offence. Messages of love and affection from a perpetrator, or even a perpetrator’s history of abuse against men, could easily be used by defence barristers to ‘prove’ that the perpetrator was not motivated by hate or hostility against women, for example. And worse, this could then lead to the implication or direct assertion that the complainant is therefore not credible. Rather than supporting the identification of VAWG and effective response to it, we’re concerned that the proposed reforms would actually add to the armoury of myths and stereotypes available to defence teams, to discredit survivors and enable perpetrator impunity.
We have considered the view that including sex or gender in a hate crime framework would lead to greater understandings of VAWG as a structural issue rooted in power and control over women and girls - but we think this is overly optimistic at this stage, and that assuming that jurors understand the systematic oppression of women and girls is problematic.
At best, we worry that trials will be slowed down due to their more complex nature as a result of introducing the element of hate crime motivation, potentially exacerbating the trauma and appalling delays that complainants already experience in the criminal justice system. At worst, this means convictions will be even more difficult to obtain.
At present, 9% of reported adult rapes result in the perpetrator being charged – let alone convicted – and it is well known that survivors wait years for trials to go ahead. We do not believe that further complicating the legal framework will help survivors to receive the timely criminal justice they deserve.
Potentially damage survivors’ ability to frame and recover from their experiences
Many survivors do not see their experience as rooted in hate/hostility and asking them to frame their experience in this way would arguably add additional barriers to reporting, as well as processing their experiences as part of recovery.
Fail to change attitudes about the true nature and prevalence of VAWG
Many claim that the proposed reforms would hold symbolic significance. However, this has not been the case, in our view, for other forms of hate crime based on existing protected characteristics, where there are still high levels of offences being committed. This argument does not, in our view, outweigh the risks to survivors we have set out here.
Overall, we do not believe that the risks outlined outweigh the perceived benefits of extending the hate crime framework to women/gender/misogyny, at least until the issues outlined above have been addressed. We believe adding sex or gender as a protected characteristic would further complicate the justice process and make it even harder to secure convictions. We’ve already highlighted the devastating impact of excessively lengthy police investigations and delayed court trials on survivors of sexual violence.
Rape Crisis England & Wales are a small, feminist team who recognise rape and sexual abuse as gendered crimes, themselves part of a much broader continuum of harms perpetrated by men against women. We listen to survivors, and put their experiences and needs at the heart of everything we do. This includes considering the experiences of those navigating an already broken criminal justice system – and ensuring we don’t inadvertently compound their existing distress and disempowerment.
We appreciate this stance may be difficult to understand; policy and law can be particularly technical in its analysis and expression, and isn’t always easily accessible. We’re committed to working to improve the structures and systems that are supposed to support survivors of sexual violence and abuse, through policy and legislative change, and to ensuring our work is accessible and clear for a range of audiences.
Learn more about our work.