Back to the Scottish Parliament Equal Opportunities Committee Official Report 4 November 2008
Archive Home

Business Bulletin 1999-2011

Minutes of Proceedings 1999-2011

Journal of Parliamentary Proceedings Sessions 1 & 2

Committees Sessions 1, 2 & 3

Annual reports

Col 679

Scottish Parliament

Equal Opportunities Committee

Tuesday 4 November 2008

[THE CONVENER opened the meeting at 10:05]

Decisions on Taking Business in Private

The Convener (Margaret Mitchell): Welcome to the 15th meeting in 2008 of the Equal Opportunities Committee.

Item 1 is to agree whether to take our draft report to the Justice Committee on the Offences (Aggravation by Prejudice) (Scotland) Bill in private at future meetings. Are members agreed?

Members indicated agreement.

The Convener: I also propose that we take a paper on our work programme in private at our next meeting. Are members agreed?

Members indicated agreement.

Col 680

Offences (Aggravation by Prejudice) (Scotland) Bill: Stage 1

10:06

The Convener: The next item is evidence on the Offences (Aggravation by Prejudice) (Scotland) Bill, for which the Equal Opportunities Committee has been appointed the secondary committee for stage 1 consideration. The Justice Committee, as the lead committee, is considering the general principles and main provisions of the bill.

We have agreed to focus our consideration on whether age and gender should be included as aggravations in the bill. Today's evidence session will focus specifically on gender. I am pleased to welcome Niki Kandirikirira—I hope that I have pronounced that properly—who is the executive director of Engender; Sandy Brindley, the national co-ordinator of Rape Crisis Scotland; and Louise Johnson, the national worker on legal issues at Scottish Women's Aid.

We have quite a lot to get through, so we will move straight to questions. I will start by asking you to outline the views of your various organisations on whether gender should be included as a statutory aggravation in the bill.

Louise Johnson (Scottish Women's Aid): I noticed in the papers that we were given that at some point we said that we were in favour of including gender as an aggravation. Things have moved on since 2004, and much more work has been done on violence against women—on policies, the gender duty and so on. For a number of reasons, we no longer think that it is appropriate to include gender as an aggravation in the bill. For example, including gender as an aggravation would imply that only some forms of violence against women are because of their gender. Unfortunately, all violence against women is due to the endemic misogyny in society. However, how could you prove that in court?

In the not-too-distant past, the issue was discussed by a number of women's organisations. We decided, for a variety of reasons, that it would not make sense to include gender in the bill. First, which crimes would the statutory aggravation be applied to? Domestic abuse? Rape and assault? What would be the intention of applying the statutory aggravation to those crimes? Would it be to get a longer sentence, a conviction or better disposal? Further, the wording of the bill might be inappropriate for a gender aggravation.

A gender amendment would have to be gender-neutral, and we are not sure how that would help in relation to violence against women. Hate crimes

Col 681

of the sort that are dealt with in the bill normally occur in what is referred to as the public sphere, yet much violence against women, particularly domestic abuse, occurs in private. Would the inclusion of a gender aggravation produce some sort of hierarchy? Would gender crime be considered solely as the masked individual attacking someone in the street, which would not acknowledge that gender violence occurs in the home?

We are concerned that the inclusion in the bill of gender hatred as an aggravating factor could lead to the separating out of cases of violence against women into those that are allegedly motivated by gender hatred and those that might not be perceived as so motivated. In that situation, one rape could be defined as a hate crime while another might not. We do not want to separate out two tiers of offences in that way.

We also feel that it would be difficult for women to appear as witnesses to such crimes. First, how would the crime be prosecuted? Would the alleged offender be asked, "Did you commit this crime on the basis of your partner's gender?" Would the woman be asked, "Do you feel that the crime was based on your gender?" Those are quite abstract questions, and we do not want abstract questions within the law, as they might serve only to irritate the judiciary. The prosecution would find it hard to prosecute or even bring a charge—how would the charge be framed?—and the judiciary might feel that the concept that was being presented to them was so nebulous that they would not acknowledge the aggravation and might dismiss the original crime to which it was attached.

The Convener: Thank you. That was a helpful statement to start off with. Who would like to go next—Sandy Brindley or Niki Kandirikirira?

Sandy Brindley (Rape Crisis Scotland): I do not mind going next.

Rape Crisis Scotland's position is quite similar to that of Scottish Women's Aid. There are significant difficulties with the legal responses to sexual offences. I do not think that anyone could argue with that, given that the conviction rate for rape is only 2.9 per cent. However, we are not convinced that a gender aggravation would help in any way.

It would be difficult to apply a gender aggravation to sexual offences. We are finally about to recognise male rape as part of the crime of rape, and I do not see how attaching a gender aggravation to the crime would assist us. It would be helpful if a different approach were taken on gender from those that are taken on other equality strands, and we are keen to establish an offence of incitement to hatred against women, which is worth considering in relation to, for example, pornography that is linked to sexual violence. At

Col 682

this stage, we do not think that including a gender aggravation in the bill would be helpful.

Niki Kandirikirira (Engender): Engender supports the views of Scottish Women's Aid and Rape Crisis Scotland on the issue. We had a meeting in April, at which a lot of violence-against-women organisations and Amnesty International got together to discuss it. We have moved on somewhat since 2004, and there has been an acknowledgement of the relationship between power inequality and violence. A gender aggravation would imply that some forms of violence against women, including some crimes of sexual violence against women, are not misogynistic, therefore proof of the misogyny that is inherent in sexual violence against women would be reliant on other forms of evidence. That would be problematic for us. We recognise that a lot of sexual violence is misogynistic, but the mechanisms would not serve the purpose and might even reinforce the idea that such violence is not misogynistic.

Also, the range of violence against women encompasses both public and private situations, which does not really fit with current patterns of the use of statutory aggravations. That, too, could be a problem. We are not saying that sexual violence is not a misogynistic crime; we are simply saying that a gender aggravation would not necessarily serve a purpose. It could also make women vulnerable as witnesses—I am repeating a point that Louise Johnson made—as even more evidence would be needed to prove misogyny. It could be difficult for women to answer the question, "Do you feel that the crime was gender aggravated?"

We recently held a meeting with the Equality and Human Rights Commission and a broad cross-section of women's organisations, at which we concluded that it would be more useful to consider using the gender duty in an overhaul of the criminal justice system, to ensure that the system is not misogynistic and does not contain gender biases that make it more difficult to obtain convictions and that prevent witnesses from feeling safe and free to give statements. We all support that suggestion.

I realised yesterday that all of that is different from what is stated in paragraph 26 at the end of the evidence paper that the committee has been given. I phoned about that last night. The paper was written four years ago and things have moved on. There has been a lot of discourse, discussion and progress in terms of relationships around gender violence and acknowledgement of the role of gender inequalities in it.

Col 683

10:15

The Convener: The value of the evidence session is that you can explain how your thinking has evolved.

Sandra White (Glasgow) (SNP): I am still not convinced that we should not add the two extra aggravations of age and gender to the bill. At the moment, courts can take the motivations of an offender into account when sentencing, but that is not mandatory. You say that, if a gender aggravation were included in the bill, it would make things more difficult for women. Given the low rates of reporting and sentencing for crimes against women, would it make it even more difficult for women to report a crime against them if a gender aggravation were included in the bill? Would it provide more leeway to sheriffs and judges to give more lenient sentences to the perpetrators of crimes against women?

Louise Johnson: If the word "gender" were inserted into the bill as an aggravating factor, it would read:

"An offence is aggravated by prejudice relating to"

gender

"if—

(a) at the time of committing the offence or immediately before or after doing so, the offender evinces towards the victim (if any) of the offence malice and ill-will relating to"

the gender of the victim

"or

(b) the offence is motivated (wholly or partly) by malice and ill-will towards persons"

of the female gender—although the wording would have to be gender neutral.

In a case of domestic abuse, for example, how could the criminal behaviour that was perpetrated be evidenced as being motivated by malice and ill-will relating to the woman's gender? If someone asked the perpetrator about that in court, they would probably get a baffled look. If they asked the woman, what would she say? We must not forget that, in some situations, women are unaware of the fact that the behaviour that has been perpetrated against them is domestic abuse. What has happened to the woman is rooted in the misogyny of society as a whole, but she is not sure that it happened to her because of that.

Sandra White: Would it be difficult to prove that in court?

Louise Johnson: It would be difficult, because the concept is so nebulous. Something somewhere needs to be looked at, but not in this bill. As Sandy Brindley and Niki Kandirikirira have said, there are merits in considering introducing another piece of criminal justice legislation. I do

Col 684

not think that the wording on gender-based violence sits with the wording in the bill. How would the Crown Office determine that an aggravation was to be attached because the crime was perpetrated due to the person's gender? How would it get the evidence for that, and how would it cross-examine on it? It could end up confusing the court or the woman.

It would not be correct to include a gender aggravation in the bill, but a lot more work needs to be done on gender. In our previous written submission, we suggested that there should be a domestic abuse aggravation, although not in the current bill, as the wording would have to be different. We would welcome the opportunity to discuss the matter with MSPs, whether on this committee or the Justice Committee, and with the Scottish Government. A gender aggravation would not fit in the current bill, which has specific wording for a specific purpose.

Bill Wilson (West of Scotland) (SNP): I have a quick question, which I hope will not be too awkward. You have spoken to a range of groups. Do they all agree that gender should not be included in the bill as an aggravation? If some groups do not agree with you, would you tell us their reasons?

Sandy Brindley: I should say first that it is absolutely right to consider gender in relation to the bill. Not addressing gender when we have the opportunity to do so would be an obvious omission. However, from our discussions, it is hard to see how including gender would assist us in practice. When we met the Equality and Human Rights Commission, there was consensus about that.

Bill Wilson: So no voice markedly disagreed.

Sandy Brindley: Not that we are aware of.

Louise Johnson: The last time that the issue was discussed in full was in 2004, but, as I said, we had another meeting earlier this year to discuss the issue in terms of the bill and the practicalities. We agreed that the concept was fine but that it just would not work in practice. None of our sister organisations has said that it would work in practice. We would be interested to hear other views, but we are not aware of anyone feeling that the inclusion of gender is a burning issue.

The Convener: You have spoken about the problems with incorporating a gender amendment in the bill. However, you also said that you would be keen to consider offences of incitement to hatred that related to pornography or domestic abuse, for example. How would such offences fit into the legislative framework?

Sandy Brindley: I know that the Equal Opportunities Committee has considered the issue

Col 685

of pornography before, and it certainly requires further consideration. Extreme pornography will be addressed in the proposed criminal justice bill, but that will not cover the whole issue or take a harm-based approach. We are keen for such an approach to be taken to incitement to hatred in relation to domestic abuse.

Louise Johnson: The forthcoming criminal justice bill might cover the issue. Careful debate is required. We want an aggravation that is workable and worded in such a way that perpetrators cannot exclude themselves from it. Prosecutors have to be able to work with the aggravation. We want to ensure that the aggravation produces an end result. What would happen if we achieved the inclusion of such an aggravation? Would sheriffs take it into account and give more punitive sentences?

There are concerns about current sentencing policy. There is community sentencing and a move towards removing custodial sentences of less than six months, so would the aggravation make a difference? We hope that it would. It could lead to more punitive sentences or more appropriate sentences for the circumstances.

Having an aggravation would be of more use than having a specific crime, because if you did not prove the aggravation, the original crime would still stand. However, if there were a crime of domestic abuse and you could not prove it, the prosecution would probably fail or the accused would be found not guilty. If you could not prove an aggravation, the crime to which it was attached could still go forward.

The Convener: Can you explain a little more about how the aggravation would work? How would it be proved?

Louise Johnson: In our submission, we quoted wording from New Zealand's Domestic Violence Act 1995. I can pass on a whole swathe of information to the committee. The 1995 act defines domestic abuse in terms of behaviour and the situations in which it occurs. For example, it refers to relationships. We suggest that, if an assault were perpetrated in a domestic abuse context, the aggravation would be attached to it. Not only would the perpetrator be convicted of the original offence, they would receive an additional punishment, more severe than normal, because the offence was aggravated by domestic abuse, as described in the legislation.

The Convener: Domestic abuse can be gender neutral.

Louise Johnson: Yes.

The Convener: Would the aggravation relate to the fact that the offence happened at home?

Col 686

Burglary is regarded as a more serious offence than other thefts.

Louise Johnson: The legislation would have to be gender neutral. The New Zealand Domestic Violence Act 1995 says:

"In this Act, 'domestic violence', in relation to any person, means violence against that person by any other person with whom that person is, or has been, in a domestic relationship."

It goes on to say that "violence" means physical abuse, sexual abuse, psychological or emotional abuse, threats and so on. It also refers to psychological abuse of a child. The act also says that

"A single act may amount to abuse",

and refers to a number of acts forming a pattern.

The act defines "domestic relationship" by stating:

"a person is in a domestic relationship with another person if the person—

(a) Is a partner of the other person; or

(b) Is a family member of the other person; or

(c) Ordinarily shares a household with the other person; or

(d) Has a close personal relationship with the other person."

The part about "a family member" obviously goes further than the context of domestic abuse that we deal with here. The New Zealand act goes beyond someone merely breaking in: it defines relationships.

We would not necessarily want the New Zealand definitions to be used just as they are; we would have to discuss the issue with the people drafting the bill and with the Crown. We would have to consider whether the wording might have unintended consequences for the Crown in other types of prosecutions, and we would have to consider whether the wording was workable. We would like to discuss and explore all those issues, but outwith the context of this bill.

The question of including gender as an aggravation has been around since 2004. We would like to explore it as part of the general armoury of civil and criminal legislation to protect women, children and young people who experience domestic abuse.

The Convener: How long has the New Zealand act been around?

Louise Johnson: It has been in force since 1996. I can e-mail the text to the committee for your perusal. It may be a starting point. A definition from the New Zealand criminal justice system might work in our system, as they are quite similar.

Col 687

The Convener: We would be interested to see that act. Has the number of domestic abuse crimes reduced as a result?

Louise Johnson: I cannot tell you just now, but I could find out.

The Convener: That would be helpful.

We asked the Cabinet Secretary for Justice about the gender aggravation and he felt that it was not really appropriate to include it. One reason he gave was the lack of consensus among women's groups. Did that influence your thinking? Your views have evolved, and it is interesting when witnesses present us with evidence that is quite different from what we were expecting.

Sandy Brindley: I did not notice until yesterday that the cabinet secretary had said that.

Louise Johnson: It did not influence our thinking.

Sandy Brindley: When the working group on hate crime's initial report came out in 2004, a number of women's organisations were quite unhappy with its approach to gender and its views on the impact of gender. Many of the initial responses were reactions to the report. However, after reflecting on the practicalities, it is fair to say that we all agree that including the gender aggravation would not be the most helpful way forward.

The Convener: It sounded good at first, but when you considered how it would be implemented and how it would work in practice, you though that unintended consequences might lead to difficulties.

Niki Kandirikirira: We have held two round-table meetings, one of which we called in April. In addition, the Equality and Human Rights Commission asked for our views, so we have had several opportunities to sit around and thrash out the issue. I think that there is consensus.

10:30

Marlyn Glen (North East Scotland) (Lab): It has been interesting to hear your views. I understood that there had been movement.

I want to sound a note of caution: are you giving up a chance to make a difference? Violence against women is now acknowledged. However, domestic abuse is just one small part—or one big part—of that; it does not cover the whole issue, because lots of violence against women does not happen in the home or between partners. I am concerned about getting pulled towards considering only domestic violence when, according to you, misogyny is endemic in society. That sounds like hate to me, so why are we not

Col 688

taking advantage of the opportunity that the bill presents?

We have to be rigorous about this. If you give up this chance, will you be able to address the issue in other legislation that might be on its way? I have heard nothing to suggest that that is the case. Why do you not want to push for the inclusion of gender in this bill, to ensure that the issue is at least discussed? Are you saying that, as others have argued, the bill will not make much of a difference, whatever equality strand it covers? You seem to be saying that it will not make any practical difference or cut the level of violence against women. Will it cut the level of violence against anyone? Indeed, what is the bill's point? If part of its purpose is to flag up different kinds of hate crime, surely you will be missing a real opportunity if you do not include gender in its provisions.

By the way, I think that such a provision would fit better into section 2, which covers

"Prejudice relating to sexual orientation or transgender identity"

than it would into section 1. Indeed, some might argue that, if we consider the wider gender-neutral meaning of sexual orientation, the issue of gender is already covered in that section.

I am sorry; I did not mean to make such a lengthy comment. My question is simply this: are you actually giving up a real chance here or do you believe that something else is going to happen soon? As I say, I have seen no evidence of that.

Louise Johnson: I understand exactly what you are saying. However, we are worried about how such an offence would be proved.

Marlyn Glen: In that case, how would you prove an offence under any of the strands?

Louise Johnson: It would probably be easier to prove that hatred had been directed at someone as a result of their sexual orientation or transgender identity than to prove that a crime was committed against someone purely because of their gender.

We thought about this, and a good point was made about knife crime and gender. Young men from 16 to 25 are being attacked because they happen to be young men in the wrong place at the wrong time. However, are they being attacked purely because they are young men or because it is all to do with gang culture and they are simply in the wrong place at the wrong time? If a woman is attacked, how can you prove that the attack happened as a result of her gender? How would the fiscal take that forward?

I know that the Crown Office and Procurator Fiscal Service has made a very short submission

Col 689

to the committee, but it would be really worth while asking it how such an offence might be worded, how it would be taken forward and how it would be proved. After all, if someone who had perpetrated violence against a woman was told, "You did this because of malice and ill-will relating to the gender of your victim," they might simply say, "No I didn't. It was just an opportunistic attack."

Marlyn Glen: But they could say that with regard to any of the strands that are covered in the bill. Someone who was accused of attacking a person because they were gay, for example, could always claim that it was just an opportunistic attack. No matter the victim, the argument will be the same: this crime will be difficult to prove. You are actually making a strong argument against the bill itself, because the perpetrator could always deny the cause of their violence.

The Convener: This has obviously been a useful exercise, as it has allowed you to analyse and assess the suggestion that gender be included in the bill and to come up with a number of problems with it. As Marlyn Glen has said, the same problems might well arise with the bill's other provisions. It is good that you have explained to the committee why you think that the move would not work, and I hope that your views will influence the Justice Committee's own consideration of the bill.

Malcolm Chisholm (Edinburgh North and Leith) (Lab): I thank the witnesses for their evidence. Given the consensus of your organisations and others on this issue, it would be foolish of us to go against your recommendations. I have certainly found your comments persuasive, although I do not think that they necessarily rule out the bill's application to the groups that it seeks to cover.

When this bill was introduced—and, indeed, when this issue was first raised back in 2004—people made a number of points, one of which was whether we were doing enough to tackle hate crime against women. You seem to have concluded that although that problem exists, it should not be dealt with in this bill. The important thing for me is not only that we pass the bill but that we simultaneously strengthen the law on violence against women, and it might well be that the forthcoming criminal justice bill will be the place to do that.

The working group on hate crime recommended that the Executive at the time review criminal law with regard to violence against women and consider introducing a statutory aggravation offence. It appears that the Cabinet Secretary for Justice has not taken up that recommendation, and I take it from what Louise Johnson has said that you want that to be followed up.

Col 690

I am interested in your original lead proposal from 2004 about introducing a new statutory offence of domestic abuse. After all, we have to be clear about your favoured way forward, and it would be helpful if all the organisations could agree on that. Despite the strong arguments that you advanced in 2004 for creating a statutory domestic abuse offence, do you now support the aggravation route for tackling this kind of violence?

Louise Johnson: At the time, we considered the pros and cons of retaining the common-law approach and introducing a new statutory offence. The drawback of a statutory offence is that it is an all-or-nothing move; if the domestic abuse element of such an offence cannot be proved, the whole thing will fall. However, if we take the aggravation route, the original crime will stand even if the aggravation element is not proven. That might be the way forward, but we will need to look at what has happened with the New Zealand domestic abuse legislation; we will also have to discuss with the Crown Office how such an offence might be worded. That said, we do not believe that such an offence should come under this bill. It should be something quite separate.

Malcolm Chisholm: The Crown Office has said that

"when prosecuting offences at present, notice is taken of considerations associated with gender-based violence"

and that

"domestic violence is regarded as an aggravated form of assault which is flagged up to the court accordingly."

Is there any evidence that that approach works in practice? The comment is somewhat worrying, because if this kind of violence is already classed as a form of aggravation it does not seem to be having much of an effect.

Louise Johnson: But it is not a statutory or official form of aggravation. I would hope that in cases in which domestic abuse was an issue the Crown would flag up that the crime was perpetrated within that context. However, there is no obligation on the court to give more serious consideration to the issue. If on the other hand a statutory offence of aggravation has been proven, it must impact on the sentencing; at the moment, any such move is purely discretionary.

We have to rely on the Crown to flag up the domestic abuse element. We hope that that is happening in every such case; however, it might not be or, if it is, it might not be taken into account. We need a more formal approach in which aggravation is set down in black and white as something that must be put before the court and must be considered in sentencing.

Malcolm Chisholm: It has been suggested that we follow up incitement to hatred against women

Col 691

and consider, as Niki Kandirikirira has mentioned, a more general overhaul of the justice system with regard to the gender duty.

Marlyn Glen stated the obvious point that there are many different forms of violence against women. Should the issue of rape, for example, be left to the current major reform of the rape laws or is there anything relevant to today's discussion that would strengthen those provisions?

Sandy Brindley: As you said, the Justice Committee is considering the Sexual Offences (Scotland) Bill, which looks at the legal framework, including the definition of rape. One of the things that is quite marked about the bill is that it does not look at evidence. We are concerned about how sexual history evidence, character and medical records are used in sexual offence trials. You might have seen last year's evaluation of the current legislation in this area, which found that the legislation has somehow made things much worse and that seven out of 10 women are now virtually guaranteed to be asked about their sexual history in court. Since the evaluation came out, there has been some debate about whether the problem is with the implementation of the legislation or with the legislation itself. That definitely needs to be considered further. My view is that there needs to be further legislation. However, we get the sense that that issue will not be included in the Sexual Offences (Scotland) Bill, so I would certainly support its being considered elsewhere.

Hugh O'Donnell (Central Scotland) (LD): It is interesting that Louise Johnson has enunciated the position that she has, because a similar discussion was had around the original legislation, in which religious bigotry was included. At one stage, there was a member's bill that looked at addressing religious bigotry. The route that you propose in relation to the aggravation is the one that gained the most support among the people who gave evidence on that member's bill, and it was enshrined in the legislation subsequently. It is reassuring that we seem to have got it right on that occasion. I hope that we will get it right this time.

Is there a danger that, by excluding the gender issue, we are somehow indicating that crimes against women are taken less seriously? Alternatively, do you still stick to the position that we should address that issue by a different route?

Louise Johnson: I do not think that the bill is a missed opportunity; it is a different opportunity. Given the wording of the bill, we have concerns about how it would work. What would be the result of it? Would it be used? Would it be used by the prosecution? What would sheriffs do with it? Would they think that it was something nebulous and get annoyed by it, which would impact on sentencing?

Col 692

The whole issue of gender and violence against women should be looked at, as Sandy Brindley and Niki Kandirikirira have said. The issue of violence against women in relation to the criminal justice sphere and improvements in the criminal justice system as a whole should also be considered. Earlier, we discussed the irony of prosecuting a crime that includes gender as an aggravation, given that there are situations in the criminal justice system in which misogyny is prevalent. Until the position of women within the criminal justice system is ameliorated or resolved and the issue of violence against women is looked at, I really do not think that the bill will help us. Much more needs to be done on the position of women; sentencing; how domestic abuse, rape and sexual assault—crimes against women—are dealt with; and the outcomes of prosecutions.

I understand precisely what Marlyn Glen is saying. We would not want to lose a resolution that was within our grasp, but we cannot see how the bill would work without making the position worse. Something needs to be done, but I do not think that this bill is the answer. We have all discussed that. We do not know what—

Marlyn Glen: And you do not know when.

Louise Johnson: We do not know when, but there is hope. A criminal justice and licensing bill is coming up, but we do not know whether something could be included in that. We would like to get some sort of commitment that the issue will be looked at further to find a workable solution. Any solution that is found must be workable; it must be able to be applied; and it must be accepted.

10:45

The Convener: You referred to the criminal justice system almost as the favoured option. What about the Sexual Offences (Scotland) Bill? Would it sit within that?

Louise Johnson: Are you talking about a gender aggravation?

The Convener: Yes.

Sandy Brindley: I do not think that a domestic abuse aggravation would fit in the Sexual Offences (Scotland) Bill.

Louise Johnson: Did you mean something about violence against women in general?

The Convener: Yes.

Louise Johnson: I do not know. I think that that might detract from what is happening in the Sexual Offences (Scotland) Bill. We have come so far with that bill; it is the first attempt to put in legislation everything that is covered and we do

Col 693

not want anything too controversial to torpedo it. Sandy Brindley might have a view on that.

The Convener: I was wondering in particular about incitement to hatred. I think that you mentioned pornography as an example of that. Would that not fit into the same category?

Sandy Brindley: That would be quite a significant amendment. I am not aware that we have discussed that in relation to the Parliament taking evidence on the issue of incitement to hatred. I am not sure that the Sexual Offences (Scotland) Bill would be the best place for that, but it would be really helpful to consider it.

We do not want our position on gender to undermine the bill as it stands or our support for an aggravation in relation to sexual orientation or transgender identity. A lot of really important work has been done to get us to this point.

Louise Johnson: I agree.

The Convener: By making the suggestion, discussing it and perhaps deciding at the end of the day that there is a more appropriate place for the gender issue, you are at least raising the issue and are almost setting things up for the next time that it is considered. It might be worth considering whether you can usefully make some comments. At the end of the day, you might decide to withdraw your suggestion or the committee might not look at it, but at least you will have started to get your foot in the door. That is just a suggestion.

Marlyn Glen: I have a question about how the bill might be amended. However, this evidence session is an opportunity for the three organisations present to call for a real commitment for action to be taken soon, whether in the Offences (Aggravation by Prejudice) (Scotland) Bill, the Sexual Offences (Scotland) Bill or the forthcoming criminal justice bill. You should be calling for a commitment to make something happen quickly. Putting other people first is commendable, but I do not think that this is the time for us to be defensive. You have to watch that this is not a missed opportunity.

Do you have any views on the idea of amending the bill to allow protection to be extended to other groups at a later date by statutory instrument?

Niki Kandirikirira: We do not have any objection to that.

Louise Johnson: We do not have any objection to it. That might be the way to bring in other groups.

Marlyn Glen: Do you think that it might be a good idea?

Louise Johnson: Yes. I do not think that we would lose anything by making that amendment. In due course, something different might be

Col 694

introduced. Having a catch-all provision in the bill would be useful, because it would certainly allow us to discuss what would be the most workable option.

What you said is right, Marlyn. Thank you for making the point about our calling for a commitment to take action. We would like to discuss that further with the Scottish Government and various committees and MSPs, to see whether we can get a solution that is workable for women.

Marlyn Glen: The working group recommended that an amendment could be made in future by statutory instrument. Do you support that?

Louise Johnson: Yes.

Bill Kidd (Glasgow) (SNP): So far, the evidence has been informative and useful. The three witnesses have given evidence on the basis that things have changed over the past four years and that we should be aware that there is a new approach—which has come from the organisations that work particularly with women on a gender basis—to how we should respond to misogyny and aggravation in terms of gender.

However, the Scottish Trades Union Congress argues that including gender in the bill might divert us away from the long-overdue focus on the consequences of harassment and criminal offences against lesbian, gay, bisexual and transgender people and disabled people. The idea of including the issue by statutory instrument seems to make sense, but is it possible that including too many elements in the legislation might not achieve anything and might be to no one's benefit because there would not be enough focus on any strand to ensure that such forms of behaviour are treated seriously by the courts?

Niki Kandirikirira: That may be the STUC's argument, but that is not where we took our analysis from. Our analysis is that, because some forms of violence against women would not be an aggravation, it would not necessarily serve our purpose to include such an aggravation in the bill. The idea that including an offence of aggravation based on gender would dilute the focus on other things was not in our discussion. That point may have been made by the STUC, but it is not where we are coming from.

Sandy Brindley: I do not find that reasoning helpful. As Marlyn Glen said, hatred towards women should not be seen as less important than hatred towards other groups. The suggestion is perhaps symbolic of the fact that sexism may be a bit more invisible than other forms of discrimination. We came to our position not for that reason but very much on a practical basis. As Malcolm Chisholm outlined, there is a real issue with crimes of hatred against women. Work needs

Col 695

to be undertaken on that, but the bill is not the route for pursuing that.

Bill Kidd: Without in any way wishing to undermine the importance of the issue, would we be wrong to have gender aggravation tacked on to the bill just for the sake of getting something done? Would it be better to have a properly worked-up bill that dealt specifically with gender aggravation?

Louise Johnson: The danger with any add-on is that people have to work with something that has not been thought through properly. If an offence cannot be prosecuted and the judiciary is uncomfortable with it or has a downright resistance towards it, that will simply aggravate the situation and make it worse. We should not go pell-mell into something just because a bill is before the Parliament and we should not think that no further opportunity will arise. We certainly hope that political policy to advance the work on violence against women will provide further opportunities to engage with the Scottish Government and with members of the Scottish Parliament.

I do not think that including such a provision in the bill just in case would work. It is important that we have information on how such offences are prosecuted currently—the Crown Office and Procurator Fiscal Service submission refers to that—but there is no point in having a provision that the Crown Office cannot work with. That would just give women false hope. As I said, how such a provision would be applied might result in unforeseen consequences. For example, instead of supporting and protecting women, the gender aggravation might end up being applied in all sorts of other cases, such as those involving young men between the ages of 16 and 25—although that might be no bad thing.

We need to consider how such a provision would work in terms of what we want to achieve in dealing with the underlying cause. It is difficult to prove hatred of women because people who have evidenced a hatred towards their partner have always been regarded as having a deviance or pathological or mental problem rather than a societal view. Trying to put that across to people who might not be fully engaged with the concept would be difficult. We do not want to undermine the position of women, so the wording of such a proposal would need a lot more consideration.

However, it is fair to say that we do not want the idea to be lost. Something needs to be done to take forward the idea of crimes based on gender hatred and misogyny, but that needs to be done somewhere else rather than in the bill.

Marlyn Glen: The timing for the bill allows us plenty of time to consider the issue and to

Col 696

consider the idea of including it by statutory instrument. From the point of view of the organisations, the idea of multiple discriminations will be important. Does the panel want to comment on the fact that women with disabilities and women in the LGBT communities will be covered by the bill?

Louise Johnson: Absolutely. That is a helpful point.

Niki Kandirikirira: I am not sure whether linking together multiple discriminations would help, given that the bill deals with aggravations. Aggravations are usually very specific, so an offence would be aggravated by prejudice on the basis of, for example, gender or disability. Is the suggestion that there should be a multiple aggravation?

Marlyn Glen: No, I was not suggesting that. I was just saying that women will be covered by the bill. It is an interesting point that a lesbian with disabilities suffers multiple discrimination, which the bill will need to address.

Niki Kandirikirira: Certainly, the multiple discrimination aspects need to be considered.

One of the biggest issues in our discussions is that sexism is so entrenched across society that it could be difficult to include it as an aggravation. If a person punches someone in the face and—excuse the language—calls them a nigger, the response to that is very different from the situation in which someone punches someone in the face and calls them a bitch. It is difficult for that sort of language to be taken into account in the system because of the concern about the system's ability to respond to that.

In our discussions, we have considered whether we can use the gender duty to get a better analysis of the criminal justice system and how it might be part of the problem. We need to ensure that the gender duty is used to provide a thorough analysis of the criminal justice bill to analyse whether it is gender biased or misogynistic or sexist. For example, does that bill include gender biases that have not been picked up because people have not been looking for them? That is where we were coming from in our discussions. We need to get those things right so that, when people come to court, they receive justice and a fair assessment.

This issue is so insidious. Every day, the papers contain misogynistic messages. The issue is so visible and invisible at the same time that it is difficult to deal with. People react to racist comments, but many people do not react in the same way—although I do—to misogynistic comments. I am not sure that including a gender aggravation would help us with that. We need to be very systemic in ensuring that the gender duty, which is a powerful ministerial duty, is used to

Col 697

ensure that the systems, policies and practices of our institutions do not carry sexism. That is probably a more important point for us.

The Convener: That brings us nicely to Sandra White's question.

Sandra White: This is aimed at Niki Kandirikirira—not at her personally, because she might give an answer that is different from the Engender quotations that I have here—and is about the recording of crime. If gender was included in the bill, there would be a statutory duty to record such crime. I find it unbelievable that, given all the evidence, we do not already record crime based on gender. I was also amazed by the Crown Office's comment that the computer system could not cope with that. I find that not just ridiculous but disturbing. However, in Engender's submission to the working group on hate crime—as I said, the submission might not have been written by Niki Kandirikirira, but it came from Engender—it was suggested that improvements in recording and monitoring the potential increase in sentence length would send a clear message to the courts and to the public about the unacceptability of violence against women.

The bill as drafted will not result in improvements in recording and monitoring of gender crimes. If the panel accepts that that is the case, could the Government in any other way send out a message about the unacceptability of violence against women, if the gender strand is not included in the Offences (Aggravation by Prejudice) (Scotland) Bill?

11:00

Niki Kandirikirira: The gender duty itself offers the opportunity to demand good-quality gender-disaggregated data across the board on conviction rates and on reporting at all levels. The gender duty can be a powerful instrument because many of the problems that we face are about institutional sexism in the criminal justice system and at societal level. The term "aggravation" is clumsy and will not really help us in trying to deal with the problems—it is not subtle enough, in some ways.

The inclusion of a gender duty would allow us to push for good-quality monitoring evidence. It would put the emphasis on the criminal justice system, which would have to prove that evidence was being gathered as opposed to its having to be proved that it was not. The criminal justice system would have to be able to collect gender-disaggregated data, otherwise it would not comply with the gender duty. We need to push for that because to address institutional "isms" we must use institutional processes.

Sandra White: Like Malcolm Chisholm, I am undecided whether the Offences (Aggravation by

Col 698

Prejudice) (Scotland) Bill should include the strands of gender and age—we will deal with the latter at a later date. However, if the groups that work with women, and which have the expertise, say that including those strands in the bill would not be any good, I would obviously bow to their vast experience. However, if gender were not included in the bill, I would be worried about what road we could go down, apart from the gender-duty one, to make it mandatory for crimes to be recorded by gender. Can we put the gender strand in, for example, the Sexual Offences (Scotland) Bill or the Criminal Justice (Scotland) Act 2003?

Louise Johnson: It could be put in the Criminal Justice (Scotland) Act 2003. You need to look at current criminal statistics because there are all sorts of statistics on all sorts of things. I cannot remember off the top of my head how they are recorded, but they are split according to gender. For instance, police statistics on domestic abuse are split into the gender of perpetrator and gender of victim, to use the terminology. Some criminal statistics are split into gender. It depends what we are trying to achieve—for example, are we examining what crimes are perpetrated more often against women or what types of behaviour women more often face?

We also need consistency in sentencing for rape, sexual assault and domestic abuse and have the behaviour recognised for what it is. We are slightly concerned about sentencing policy in that regard, in that we would be disturbed if every case that could carry a six-month sentence went to community sentencing. That needs to be looked at carefully. The idea of perpetrator programmes also needs to be looked at carefully to ensure that, when they are used, they are used correctly and that not everybody is referred to such a programme willy-nilly. We need to consider the whole area of evidence taking, support and police response. We have had "Her Majesty's Inspectorate of Constabulary for Scotland Thematic Inspection: Domestic Abuse", and I spoke to the Association of Chief Police Officers in Scotland last week about how it will take forward some of that review's recommendations.

There is no single approach; there must be a cohesive approach. We have some of that in the expansion of the domestic abuse courts and the domestic abuse toolkit, but we need a cohesive approach in dealing with violence against women in order for it to be recognised that it exists, that it is inherent, that it is everywhere and that its tendrils spread much further than people appreciate. The criminal justice response must acknowledge that.

Sandra White: I asked about evidence gathering because I understand that the Scottish Government currently does not record crime

Col 699

according to gender. Obviously, in instances of sexual assault or rape, it is easy to record the crime according to gender. However, if we cannot get the gender strand included in the Sexual Offences (Scotland) Bill, can we get it into one of the bills that Marlyn Glen mentioned? The panel agreed that we could consider adding the strands of age and gender to the Offences (Aggravation by Prejudice) (Scotland) Bill. If we had evidence that showed that crime against women—gender crime—was overwhelmingly prevalent, we would be able to propose including the gender strand at a later stage of the bill. That was why I asked my initial question. Surely if we had the evidence, it would be easier to include the gender strand.

Sandy Brindley: I will add to what Louise Johnson said. Sandra White is right to highlight data about violence against women as a crucial issue because the data are incredibly poor, particularly on rape and sexual assault. It is said that only 2.9 per cent of rapes that are reported to the police lead to convictions. We know that the data are not entirely reliable, but they are all we have. There seems to be no way of linking police statistics with court statistics. It is incredible that we cannot track in the way that we might expect.

The national group to address violence against women, which the Minister for Communities and Sport chairs, has a sub-group that has been working for some time on how we could improve the data on violence against women: a number of recommendations are coming from that. However, we need leadership from the Scottish Government in respect of improving the data on violence against women. We raised the importance of data in our written evidence to the Sexual Offences (Scotland) Bill.

Our current definition of rape is gendered, so there is no issue about victim and perpetrator not being defined in gender terms. However, there will be an issue if the new definition is agreed. We need to be able to gender disaggregate data. Given the problems that we have in Scotland in prosecuting rape, it is self-evident that we need data about what makes a difference and what does not in that regard. That is an important area to look at.

Louise Johnson: The Equal Opportunities Committee could recommend to the Scottish Government that the office of the chief statistician undertake work in that area. Such work would be helpful and would support what we are doing.

The Convener: I wonder sometimes whether we automatically always look to legislation to solve all problems. There is certainly an awareness-raising issue in this area. If we look at drink-driving, many years ago it was not considered to be the enormous crime that it is now considered to be. However, many awareness-raising television

Col 700

adverts and so on highlighted the issue, and similar work has been done on domestic abuse. Can the panel comment on that? How could we bring violence against women a little bit more to the public's attention and accentuate the fact that certain things are not acceptable, as Niki Kandirikirira said?

Louise Johnson: I can comment on the Judicial and Courts (Scotland) Bill, which was recently enacted. There was much discussion during the bill's passage on the proposals for judicial training, as it was called. The Judicial Studies Committee does a lot of good work on training or awareness raising for the judiciary. However, as part of that, we would certainly like a planned session on domestic abuse, rape and sexual assault, and violence against women. When the Lord President reviews the training situation, we would like those issues to be taken on board in a more formalised training programme. As I said, we have the "Her Majesty's Inspectorate of Constabulary for Scotland Thematic Inspection: Domestic Abuse", and ACPOS is taking steps to rationalise training throughout Scotland, so we would work with ACPOS on that. It would be useful to report back to various committees and MSPs on that. The whole issue is about awareness raising. I do not know what my panel colleagues have to say about campaigns.

The Convener: Can I just stop you there? You have sort of gone to the other end of things. Given that prevention is better than having to deal with the crime itself, can we look more at doing something in the education system to address the issue?

Niki Kandirikirira: One of the issues around the Offences (Aggravation by Prejudice) (Scotland) Bill is that we cannot imagine any act of male violence against women that is not gender aggravated. In saying that, we would have to prove gender aggravation, which sort of undermines the idea that all violence against women is misogynistic and gender-aggravated crime. It is important to bring in some of the work that we have been doing around recognising that violence against women is about gender power relations as a cause and a consequence. The move to broadening out a domestic violence strategy to a much wider violence against women strategy would be a really useful way forward. Progress has been made on that, but we must look at broadening the strategy and acknowledge that violence against women is about gender power relations. We are not talking about opportunism or guys looking for a quick sex fix—it is misogyny in action. The problem is not limited to Scotland, but is global.

The Convener: Can you say that every single attack on a woman is aggravated by gender?

Col 701

Niki Kandirikirira: I am trying to imagine one that is not.

The Convener: If someone had attacked Myra Hindley because of the crime that she committed, would that attack have been gender based?

Niki Kandirikirira: If someone wrote a thesis on the issue, they would probably deduce that it was, because Myra Hindley was vilified by the press in a particularly gendered way. I would argue that.

The Convener: That is interesting.

Sandra White: A number of members are looking at the issue of prostitution. As you say, violence against women is not limited to domestic violence. I and others hope that new legislation will define prostitution as violence against women, in line with the Swedish model. That would create a new ball game, as we have statistics on how many people are involved in prostitution. The problem is all-encompassing, but there are moves to classify prostitution as violence against women.

I agree with Louise Johnson that we should write to the office of the chief statistician to push for stats on violence against women. If we do not have them, judges and sheriffs have no way of knowing how huge the problem is. We could start with stats for domestic violence, prostitution and trafficking.

Sandy Brindley: It is important to make links between different forms of violence against women, such as prostitution, pornography and sexual violence. We must take a preventive approach. The phrase "a rape culture" is often used in relation to rape. It is difficult to prove that there is a causal link between the availability of pornography and the prevalence of rape, but pornography contributes to a culture in which women's bodies are objectified and are seen as being accessible in any terms. I have suggested that pornography should be considered as incitement to hatred against women. In my view, until we start to tackle pornography, we will get nowhere near the root causes of sexual violence; I encourage the committee to think about that. It is necessary to consider what is included in pornography—especially these days, with the internet. If the level of hatred that is expressed against women in pornography were expressed against any other group in society, it would not be tolerated. The violence becomes invisible because it is sexualised violence.

Bill Wilson: You mentioned the New Zealand domestic violence laws as an alternative way of solving some of the problems that we face. Can you provide us with other international examples of legislation that would be worth pursuing?

Louise Johnson: For this discussion, I have not looked at any laws apart from those to which

Col 702

members have referred. However, I can undertake to look at parallel legislation in other jurisdictions. In respect of the USA, for example, that could be difficult because the legal system is quite different from ours. It is necessary for us to draw parallels between the system and legislation that we are examining and our own, because evidential and prosecution processes are sometimes different. There is gender aggravation legislation in the States, but the literature that we have examined suggests that it is not used much. I do not know why, but I can find more information and pass it to the committee. Nineteen states in the USA have gender aggravation legislation, but we do not hear much about it and do not know whether it is working.

Bill Wilson: It would be interesting for us to get an interstate comparison. If some states are using the legislation and others are not, that may provide some interesting insights.

Louise Johnson: Yes. We need to find out whether the legislation is not being used because it is unworkable, because people are not coming forward or because offences are not being prosecuted under it. Although we must take into account the differences between the systems and the limitations of some comparisons, it would useful for us to examine the matter. At a meeting in April, we discussed looking into it, but time constraints and intervening circumstances prevented that. However, I will see what I can find for the committee.

11:15

The Convener: That would be very welcome.

Niki Kandirikirira: In the US, 19 out of 41 statutes cover victims who are chosen by reason of gender. To charge a person with a hate crime, prosecutors must have concrete and admissible evidence of a bias. The offence has been reserved largely for cases in which perpetrators did not know their victims. There have not been an overwhelming number of gender-based crimes reported, and the legislation is used mainly for racially and religiously motivated crime.

In Belgium, gender aggravation legislation was introduced in 2003, but some people think that enforcement agencies have failed to adopt effective procedures. In Canada, the legislation that defines gender as an aggravating factor has been used only in cases where attacks were perpetrated by strangers—it has not been used in cases of domestic abuse. In Spain, article 22 of the penal code makes provision for gender to be considered as an aggravating factor, but we have no information on how it is being used. We found no evidence that legislation in any of those jurisdictions is making a major difference.

Col 703

The Convener: In conclusion, would panel members like to make any comments on the general principles or provisions of the bill, so that we can pass them on to the lead committee, which is the Justice Committee? Who would like to start?

Niki Kandirikirira: I will leave it to the lawyer.

Louise Johnson: We commend the bill and have no objection to its provisions. It is important for us to look at crime that is defined by sexual orientation and transgender identity, because crimes against LGBT people have taken a back seat. The bill brings that criminal behaviour to the fore and is a good move.

The Convener: So you have no problems with, or reservations about, the bill's provisions. Are you not concerned that we will run up against the same difficulties with sexual orientation, transgender identity and disability that you ran up against with gender? Are the definitions in the bill clear enough?

Louise Johnson: I have not given full consideration to issues other than gender, but no glaring difficulties jumped out at me—I did not think, "This'll be very hard to prove." If anything occurs to me, I will be happy to pass it on, but I have seen no major inconsistencies or problems in the bill.

Sandy Brindley: We support the bill. Further work is required in relation to hate crime against women; I am sure that the committee has considered that point. We have made two proposals today, on incitement to hatred and on domestic abuse aggravation, which Louise Johnson mentioned. Even if it is not recommended that gender be added to the bill, further work on the issue is required.

Niki Kandirikirira: We have discussed the issues of gender and disability and the distinction between what happens in private spaces and what happens in public spaces. What are the implications of abuse of disabled people by their carers? Will such offences be seen as being aggravated by the fact that the victim is from a disabled identity group, or is the main issue the relationship between the carer and the cared-for person? The same debate can be had about domestic violence. That is one issue to flag up, although I am sure that disability groups have already done so. It may have an impact on other legislation; it is also a concern in relation to gender.

Sandra White: I have a point of clarification, which shows my ignorance about the bill.

You mentioned care and disability. Will the bill cover public and private care homes? I raise the point because at a meeting that I attended with the Human Rights Commission and various lobbying

Col 704

groups reference was made to violence or, rather—because they do not call it violence—to certain circumstances in care homes, which involve mainly elderly people. If the incident takes place in a public care home, there is a duty of care and the matter can be reported, but it cannot be reported if it takes place in a private establishment. Will the bill cover public and private care homes, in particular when disabled people are being cared for in an institution?

The Convener: We can raise the issue in our report.

Sandra White: I wanted clarification.

Sandy Brindley: If it is an offence, it is an offence, irrespective of whether it takes place in a public or private care home.

Louise Johnson: Unless there is any caveat or limit to the provision, it should be all-purpose. The Adult Support and Protection (Scotland) Act 2007 covers the kind of behaviour that Sandra White mentioned. It empowers local authorities to enter premises, which I think would include care homes, if they suspect that a vulnerable adult is at risk.

Sandra White: As far as I know, that provision covers only public premises, but not private premises.

Louise Johnson: Does it not? It covers houses.

Sandra White: I will need to check that, because the issue was raised with me.

Louise Johnson: The 2007 act allows social workers to go into someone's house if there is a person there who is, by virtue of age, a disability or a mental disability, experiencing some form of harm. I cannot remember the exact definition. I think that the act probably also covers care homes—that provision would probably cover disabled people. Unless the bill has any limitation, the provision would be all-encompassing.

Sandra White: I would like clarification of that, convener.

The Convener: Yes, because there can be private carers in a person's private home as opposed to a care home. We will flag up that interesting point.

I thank the witnesses for a worthwhile and surprising session, which is always good. We appreciate the work that you have done and the thought that you have given to your evidence, which has been helpful.

Col 705

Reporter

11:22

The Convener: Item 4 is a report from Bill Wilson, our sexual orientation reporter. He will give us an update on his recent meeting with LGBT groups.

Bill Wilson: I will be fairly brief.

The first issue that was raised was the census. The groups are keen to see a non-obligatory question in the census. They felt that it would be inappropriate for the state to be able to demand to know a person's sexual orientation, but that a voluntary question would be useful. They noted that the question on religion was voluntary: unfortunately, the original act of Parliament to make that a voluntary question does not seem to allow for adding other voluntary questions, so a new bill is therefore required. They noticed that that had previously been done quite quickly for religion and were keen to see such legislation for sexual orientation.

As members would probably expect, LGBT groups are fully supportive of the Offences (Aggravation by Prejudice) (Scotland) Bill, which we have just discussed. They mentioned one addition that they would like to be made to the Sexual Offences (Scotland) Bill—they would like there to be a specific offence of object rape. I believe that they took that issue to the Justice Committee.

Concern was expressed that the United Kingdom Government's proposed equality bill might not level up as was anticipated—it might not afford a higher level of protection to all equality strands. The groups wanted the bill to consider harassment in respect of goods, facilities and services for LGBT people. They noticed that, when the meeting took place, the Scottish Government had not responded to the hearts and minds agenda group report, on which the committee took oral evidence last year.

That is it, unless members have any questions.

Sandra White: I want to ask—

Bill Wilson: I knew you would have a question.

Sandra White: With regard to rape by an object, my understanding is that the matter is not addressed in the bill that is before the Justice Committee. Have the group and others suggested to the Justice Committee that it should consider the issue or amend the bill?

Bill Wilson: They told me that they were going to submit amendments to the Justice Committee. I contacted some groups that deal with torture in this country—there are some 40,000 victims of

Col 706

torture. I suggested that as object rape is a common method of torture, they might also want to make a submission. Those groups generally thought that that was a good idea, but I do not know whether they made a submission.

The Convener: Thanks very much. That was helpful.

As agreed on 7 October, we will now move into private session to consider the draft report to the Finance Committee on the Scottish Government's draft budget for 2009-10.

11:25

Meeting continued in private until 12:16.