WHEN reading of last week’s recommendation that the Scottish Government should introduce legislation to use the criminal law to tackle misogyny in Scotland, there will be plenty of folk who will have thought: “Oh no, not again! Have these people learned nothing from the Hate Crime Bill?”

That would be a perfectly understandable reaction. But it would be wrong. Helena Kennedy’s core recommendations deserve to reach the statute book – and, in legislating for them, Holyrood can learn from, and not repeat, the errors that so nearly scuppered the Hate Crime Bill.

What was wrong with the Hate Crime Bill is that far too little attention was paid when it was being put together to the importance of free speech. It took months of painstaking parliamentary labour to put that right, and to build into the legislation the free speech protections which, frankly, should have been there from the beginning.

The matter is complex, so it is worth recapping. We have no right to speak in such a way that a reasonable person would find threatening or abusive if, in speaking that way, we intend to stir up hatred against a protected minority. This is the wrong which the Hate Crime legislation criminalises. This kind of speech needs to be distinguished, however, from speech that other people find merely distressing, or shocking, or even offensive.

I have no right to threaten or abuse you with my words. But, equally, you have no right to stop my speech just because you are offended by it – the right to free speech extends to and includes the right to express yourself in ways other people might find offensive.

To its immense credit, Baroness Kennedy’s carefully argued report recognises all this. There is no recommendation to make misogyny illegal. That would be to criminalise thought – and thought crime is the stuff of totalitarian nightmare not progressive democracy. Instead, there are four detailed legal recommendations, two of which should be enacted, and two of which may prove to be more troubling, and may require further consideration.

The report is right to say that, if an offence is committed out of prejudice, malice or contempt towards women, it should carry a tougher sentence. This is already the case for race (as well as for other characteristics) and it should be the case for misogynistic crime, too.

Likewise, the report is right to say that using threatening or abusive words or behaviour in such a way as intends to stir up hatred against women should be a criminal offence. Threats or abuse intended to stir up hatred on grounds of race, sexual orientation, religion, or transgender identity have already been legislated for as crimes. Stirring up misogynistic hate should be treated the same way.

No risk to free speech – even less to freedom of thought or conscience – is posed by these proposals, as long as they are drafted with the same care and attention to human rights law as the report itself is.

The report makes two further recommendations, however, which could prove more problematic.

First, it is proposed that misogynistic harassment should be an offence: “Sexual or abusive conduct, occurring in public, likely to cause fear, alarm, humiliation, degradation or distress to a woman” should be a crime. Likewise, to issue a threat of rape, sexual assault, or disfigurement, or even to invoke rape, assault or disfigurement, should be an offence. This last recommendation is designed with online behaviour in mind, although it would not apply only online.

There are two potential pitfalls with regard to these proposals. First, they are surely already crimes – why, then, a need to legislate for them all over again? It is already an offence to use threatening or abusive behaviour likely to cause a reasonable person fear or alarm, as it is already an offence to post online anything “grossly offensive, indecent, obscene or menacing”.

Secondly, and more problematically, at least one of these proposals will require the law to specify what is meant by “a woman”. We all know what a divisive, indeed toxic, matter this has become of late. Were misogynistic harassment to be an offence, as Baroness Kennedy has recommended, could a (biological) woman be liable for harassing a trans woman if the former was abusive towards the latter, causing her to feel degraded or distressed? Given current directions of travel as regards gender recognition, it is not self-evident that all the victims of misogynistic crime will be biological women any more than it is obvious all the perpetrators will be men.

On this extraordinarily sensitive matter, the report is silent, pleading merely that “should it become necessary to define a woman … that is a role for the legislature”. Well, perhaps. But I’m not sure how all of Baroness Kennedy’s recommendations can be enacted without first defining what the law means by “a woman”.

The report urges that “no offence should be created that requires a woman to prove she is a women”. Well, quite. It is not self-evident, however, how this can be avoided. In today’s climate these might prove to be reasons not for enacting the report’s recommendations, but for shelving them. That would be a great pity.

Helena Kennedy’s report is replete with horrific examples of the misogyny – with the routine grind of harassment, humiliation, degradation, prejudice and subordination – that some women in today’s Scotland live with on a daily basis. It makes the case with passion, with reason, and with searing clarity as to why legislative action is needed to tackle misogyny in modern Scotland. It would be a tragedy if a law designed with the best intentions to protect women were to become itself a victim, entangled in the poisonous debate about what a woman even is. Let us hope that such a fate can somehow be avoided.

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