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RCEW respond to Law Commission’s recommendations around hate crime legislation

Today (7th December 2021) the Law Commission have released their recommendations to reform hate crime legislation. As part of this, they have made a number of recommendations to protect women and girls, including extending the offences of stirring up hatred to include grounds of sex or gender, which would help to tackle the growing threat of ‘incel ideology’. We are pleased to see emphasis put on the danger posed to women and girls by ‘incels’ and their harmful ideologies and welcome the proposed recommendation that would help to mitigate this.

Alongside this, the Commission have recommended a government review into the need for a specific offence to tackle public sexual harassment. Notably, the Commission have recommended that “sex or gender” should not be added to the protected characteristics: thus misogyny would not become a hate crime. Rape Crisis England & Wales welcome this decision for a number of reasons, and were involved in the initial consultations around these recommendations.

There has been a lot of recent dialogue around making misogyny a hate crime, with many pointing to the perceived benefit of providing women with greater protection against violence and harassment. Although there have been many valid points and considerations, what we have found missing from this dialogue, and which underpins our stance on the matter, is the practical application of the law and the impact it will have on victims and survivors. Rape prosecutions are already at an all-time low, and we believe adding sex/gender as a protected characteristic would further complicate the judicial process and make it even harder to secure convictions.

One of the key issues around prosecuting hate crimes is the need to prove hostility. That means that there would need to be proof that the perpetrator has committed a crime against the victim/survivor based on hostility towards their sex or gender. We know that most perpetrators of violence against women are known to the survivor, and this would arguably make it difficult to demonstrate hostility in a complex abusive relationship. The impact of this is that misogyny as a hate crime would likely only be applied to sexual crimes committed by strangers, and this runs the risk of perpetuating the harmful myth that ‘some rapes are worse than others.’

A hate crime framework may result in there being distinctions made between ‘misogynistic’ and ‘non-misogynistic' crimes against women. We would argue that all sexual violence and abuse offences committed by men against women could be understood as inherently misogynistic, sometimes explicitly so, sometimes implicitly. However, in implementing hate crime law, there is a risk that sex or gender-based hate crime laws might disrupt this understanding because they would require express evidence of misogyny in these contexts – potentially casting some sexual offences as “non-misogynistic” where there is insufficient evidence of this. This would undermine our understanding of the way patriarchy and misogyny operates, and that male entitlement to women and girls’ bodies is a result of cultural and societal norms, systemic oppression, and not necessarily an individual’s hatred.  

Violence against women and girls is a wide-scale societal problem that needs to be addressed as a matter of urgency. We do not feel that hate crime legislation is the way to address this, at least until more work is done to prevent the potential issues. That work would involve demonstrating how intersectionality can be addressed within the hate crime framework and how it will safeguard women and girls in particular, as the current categories of sex and gender are very broad.