Today MPs will debate again on whether upskirting should be a crime – and in doing so they will also vote on a proposed amendment that would make misogyny an aggravating factor in these criminal cases in England and Wales; a move that would allow courts to consider misogyny when passing sentences. If approved, some say, this could set a precedent which may lead to misogyny becoming a recordable hate crime for all police forces across the country in the future.*
Since around 2016, when Nottinghamshire began a two year trial to record misogyny as a hate crime, there have been rumblings of the ways in which hate crime legislation could be used to stop sexual harassment.
The arguments in favour are generally that:
- If misogyny becomes a recordable hate crime police forces will take incidents of sexual harassment, and other forms of violence perpetrated against women, more seriously – enabling them to deal “robustly with the root causes of violence against women“.
- Making misogyny a hate crime will lead to cultural shifts by:
a) Challenging harmful attitudes held by those who perpetrate acts of sexual harassment and violence.
b) Providing women with the language to name their experiences as misogynistic hate crimes which will “empower women to state they won’t put up with it“. This will in turn mean they are more likely to report to the police. This in turn supposedly sends a message to those who perpetrate crimes, or think about perpetrating crimes, that they cannot get away with it and must therefore stop enacting violence.
In spite of the above compelling arguments – over at Hollaback! London we remain unconvinced that making misogyny a hate crime will actually improve anything for the vast percentage of those who experience sexual harassment and other forms of sexual violence – importantly these include trans and cis women, non-binary people and intersex people. Or in other words – people who society gender as female who are often forgotten (intentionally or unintentionally) in debates around enhancing police powers and enacting new laws.
Our general concern with the arguments posed by many who are in favour of making misogyny a hate crime is the conflation of the criminal justice system and its laws with a method of prevention. For while laws may make some of us feel safer, while they give some of us the language to name our experiences, we feel it important to question whether this is enough.
Is this safety just a feeling – or is it tangible?
Who does this new legal language benefit?
In regards to the initial query – we believe that this supposed safety is in general simply a feeling, and little more than this. The reason for this is that foremost, laws against sexual violence do not prevent perpetrators from offending. The finest example being a look to our sexual offences act which made a number of crimes – such as rape – illegal in 1956. This was then reaffirmed in 2003. And yet these crimes continue to be committed on vast scales. The reason for this is simply that laws do not stop perpetrators of sexual violence for offending.
It is also vital to move to the second question and ask who this proposed amendment will cause to feel safer. It will most probably not be many people from the below groups:
- Trans women
- Non-binary people
- Women of colour
- Women with tenuous immigration status (e.g. limited leave to remain)
- Women who have reported to the police before, and who know the realities of the criminal justice system
All the above “groups” of women often experience additional barriers to reporting, and may feel highly unsafe to do so – even if they were to be reassured that they would be treated seriously. The reason for this is that we continue to live in a hostile and racist environment where some migrant women who report sexual violence are arrested and detained, and trans women and non binary people are often deliberately misgendered and erased.
Of course, in a world where women constantly feel deeply unsafe, creating a culture that feels safer is appealing. We understand exactly where this desire comes from and we are not in any way criticising those who have pushed for these amendments. Creating a culture where we can hope that the police will recognise our experiences and treat us with empathy – because there is a law in place – is tantalising. But we can do better than this. We should be treated seriously, with respect, with empathy, without an amendment. We should be treated this way because people understand the impacts of experiencing routine and daily sexual harassment and violence, and because they know how to support us.
To put it simply, our criminal justice system does not, and cannot, solve systemic issues like misogyny and sexual violence – and there are a number of reasons for this. The first reason for this is one that has been alluded to already – prevention is far more complex than simply creating laws. Laws do not work on their own because prevention requires long term, community oriented approaches, that work in highly localised settings, to encourage processes such as bystander intervention and accountability. The second reason for this, is because our current criminal justice system is broken and does not work for survivors of sexual harassment and other forms of sexual violence. This is evident with a look to what are typically described as more serious sexual offences. Currently conviction rates for these are at between 6-7% and the time length of report to court – if it gets to court – sits at an average of around 2-3 years; ongoing shifts around disclosure are only set to make the whole process longer. Moreover there is little evidence to show that a conviction actually prevents re-offending. And when we return to the Nottinghamshire police trial the statistics speak for themselves – out of 181 reports over the two year pilot, only a single charge has been brought and the vast percentage of women who reported were white women. As an additional point – it is also vital to remember that hate crime laws are highly complex – and in most cases “a person can’t be charged with a hate crime, even if their behaviour stems from prejudice or hate. In most cases, the “hate” element is an aggravating factor attached to an existing offence, such as a public order offence or common assault“.
At the heart of this debate is a much more difficult conversation over what justice looks like. And it will of course look different to each individual who experiences any act of sexual violence – whether sexual harassment or acts which are typically seen by society as “more serious”. We all we want a world to treat us seriously, and hears us when we speak out about our experiences of sexual harassment and violence. And we also understand the hope that having a law in place will help this. However we have been speaking about sexual harassment and all forms of sexual violence loudly and fiercely for decades now – and this volume has only intensified since the #MeToo movement accelerated in 2017. The real question we should be asking is why does our world need another new law to hear us when it continues to ignore us … and will making misogyny a hate crime actually lead to people in power listening to us, or will it actually lead to silence?
To us at Hollaback! London – justice is not a prison sentence. Justice is not giving police more powers, which studies have shown leads to a pro-arrest environment. Justice is not safety for some and not for all.
Justice is a world where people truly hear us, and consequently where perpetrators of sexual violence are held to account by a community, a community who works to ensure this violence no longer takes place. This type of justice will take a lot of work – but ultimately it will lead to a world where sexual harassment no longer exists.
* Following the publication of this statement/blog post Stella Creasy MP withdraw her amendment after the government announced a fully funded and comprehensive review of hate crime legislation, which will consider whether to recognise misogyny as a hate crime. Justice Minister Lucy said: “I will be asking the Law Commission to undertake a review of the coverage and approach of hate crime legislation following their earlier recommendation to do so. This will include how protected characteristics including sex and gender characteristics should be considered by new or existing hate crime law.” Hollaback! London hope the views and concerns outlined in this statement are part of this review.