Official Report: Minutes of Evidence

The Chairperson (Mr Frew): I inform members that a joint panel from the Rainbow Project, the Women's Resource and Development Agency (WRDA) and HERe NI will provide oral evidence on the Criminal Justice (Sentencing etc) Bill. We are joined by Alexa Moore, policy and influencing manager, Rainbow Project; Elaine Crory, women's sector lobbyist, WRDA; and Sophie Nelson, senior policy development officer, HERe NI. You are all very welcome to the Committee. Thank you very much for your attendance today. Do you have a joint opening statement or individual statements?

Ms Alexa Moore (Rainbow Project): We have individual statements that can be taken together as a joint statement. We were told that we can take five minutes each.

The Chairperson (Mr Frew): Five minutes each; that is super. I remind you to be concise, and I warn members to ask specific questions without philosophies or statements, please. I ask you to be concise in your answers; that would be brilliant. Thank you.

Ms Moore: Good afternoon, Committee members, Chair and Clerk, and thank you for inviting us to take part in this evidence session. I will allow the others to introduce themselves. I am Alexa Moore, and I am the policy and public affairs manager at the Rainbow Project. We thought that "influencing" sounded a bit too TikTok-like. The Rainbow Project works for a better Northern Ireland for LGBTQI+ people and their families.

We employ a team of 36 staff, located across our three offices in Belfast and Foyle, and deliver services and programmes across Northern Ireland. One of those services is our hate crime advocacy service (HCAS), which sits as part of the wider HCAS team, managed by Victim Support and funded through DOJ and the PSNI. Our hate crime advocacy officer provides support through several routes, including outreach and support for LGBT people who have reported a hate crime to the PSNI and are then referred to us through the HCAS system, as well as support for those who maybe have not yet reported, or even do not plan on reporting, hate crimes to the PSNI, for a variety of reasons. In recognition of the differing needs and intersecting identities of individuals in our community, we work really closely with our HCAS partners to support victims of hate crime across multiple characteristics.

My colleagues here with me from HERe NI and the WRDA will go into a little more depth on some of the issues that we wish to discuss during this evidence session, and, of course, we are very happy to answer any questions that you might have. I will start by providing a bit of background to our work on the Bill specifically and the broader work that has been going on for many years on hate crime. All three of our organisations were involved in and contributed to Judge Marrinan's independent review of hate crime legislation in 2018-19. We had a number of in-person and written engagements with the judge as he conducted that review. What came out of that were quite unambiguous recommendations on a number of issues. He recommended a stand-alone hate crime Bill that clearly set out protected groups; an updated, enhanced sentencing model to a more fit-for-purpose statutory aggravator model; adding some new protected characteristics, including transgender identity, intersex and gender to cover misogynistic crimes; recognising intersectional hate motivations, such as where those crimes are perpetrated against someone on the basis of their sexuality and their race; and, in that stand-alone Bill, updating our incitement to hatred legislation to bring it into the 21st century, removing, for instance, the private dwelling defence and replacing it with a private conversation defence to make it more fit for purpose for an online world.

We are pleased to see that some of those recommendations are being brought forward in the Bill, but we are, of course, disappointed that, once again, there will not be a stand-alone hate crime Bill and that those protections will instead be housed in a much broader gamut of criminal justice reforms. We are also disappointed that there is no reform of the incitement to hatred offence, particularly given the scale of vitriol that is directed particularly at women and LGBT people in public life.

I will focus briefly on the addition of transgender identity as a protected characteristic. Colleagues will go into other issues as well. Transphobic hate crime is covered by hate crime legislation in England, Scotland, Wales and the Republic of Ireland. Data on transphobic hate crime levels has been collected by the PSNI since 2012. There is a clear evidential basis for the inclusion of transgender identity as a protected characteristic in the Bill, which was recommended by the judge and accepted by DOJ. We were disappointed and, frankly, a bit baffled that it was not included in the Criminal Justice (Sentencing etc) Bill that was agreed by the Executive and made its way into the Assembly. Some reporting suggested that that was the result of the Bill's being blocked at the Executive and not approved until transphobic hate crime was removed from it. If true, we find that deeply troubling. It sends a message to trans people in Northern Ireland that the Executive do not take seriously the often extremely regular abuse and violence that we receive while simply going about our lives. Whatever your opinion on trans people and whether you respect how we live or not, I hope that we can all agree that we should not be harassed, abused or assaulted simply for who we are. Whatever your opinion on trans people, I hope that we can all agree that, when such offences occur, they should be dealt with using the full extent of the law, recognising not just the impact that those crimes have on individual victims but the signal that they send to everyone who shares that characteristic.

We wanted to come together here to send the very clear message that granting rights and protections for trans people and for women is not mutually exclusive. In fact, we believe that addressing transphobia and misogyny in the Bill would send a clear message that rights are not a zero-sum game, that everyone deserves to be protected from violence and hate and that the Assembly takes seriously the abuse that those two groups face in our society.

I am delighted to pass over to Elaine Crory from WRDA, who will say more on the misogyny aggravator.

Ms Elaine Crory (Women’s Resource and Development Agency): Thank you, Alexa. Thank you, Chair and members, for having us here today. WRDA, alongside our colleagues sitting next to me and beyond, have long campaigned for misogyny to be recognised as a motivation for hate crime that occurs here in Northern Ireland and in other jurisdictions. For instance, in 2020 and 2021, the Raise Your Voice project that we run, which is now part of the ending violence against women and girls (EVAWG) programme, successfully achieved cross-party support for a motion across several councils in Northern Ireland that called for misogyny to be recognised as a statutory aggravator in our hate crime legislation. Further to that, we worked with some of our MLAs following a motion that was unanimously passed in the Assembly on 23 March 2021. It stated:

That is a big motion, but it has three key elements. A lot of progress has been made on one of those, and some progress has been made on another. The third is the outstanding issue about which we are here today. We recognise the work that the Assembly has done since passing that motion, but, in line with the support shown across councils and by the Northern Ireland Assembly for misogyny to be recognised as an aggravator, we support the opportunity that the Bill presents to change the law regarding misogyny as a statutory aggravator. We have consistently engaged with the process from the outset, including through the hate crime legislation independent review, under Judge Marrinan, which included learning from the misogyny and criminal justice in Scotland working group. That working group, under Baroness Helena Kennedy, produced a valuable report called 'Misogyny – A Human Rights Issue'. The group defined misogyny as:

and said that that definition more accurately reflects the motivation behind misogynistic crimes than the word "hate" on its own. That is consistent with Judge Marrinan's recommendation that the attitudes of "bias, prejudice, bigotry and contempt" be included as indicators of hate. The Scottish working group recommended that the new aggravator not apply to crimes that are already considered inherently misogynistic, such as domestic abuse and especially rape, sexual assault and other sexual offences, because those types of offences need separate consideration when it comes to sentencing. The group argued that we should apply the aggravator to all other crimes, including assault, criminal damage and offences such as threatening behaviour, as long as there is evidence of misogyny. To demonstrate that, they provided an example of a road rage offence against a woman driver in which there is a high level of sexist abuse against her and during which she locks herself in her car for safety. Instances in which a man has committed a crime against a woman and there is no evidence of misogyny would not fall under the new statutory misogyny aggravator. There is an opportunity before us to update our legislation to include crimes motivated by misogynistic hate attracting appropriate probationary conditions, interventions and sentencing. Scotland did not take the opportunity when it had it and may now have lost it, which is a great shame. My colleague Sophie will lay out some of the reasons why that is so important.

Before that, I will briefly address the question of whether there is a need for such legislation. That issue was raised in the Assembly during the Second Stage debate on the Bill, and the Minister indicated that there was no robust evidence to support it. We disagree, and, over the past six years, we have engaged with the Department at every opportunity to explain why. First, one of the reasons why we do not have solid numbers for this, despite having the numbers for other motivations, is that the PSNI does not record that — it is as simple as that. It is difficult to provide official numbers when the system does not gather them. We know that those types of crimes take place. For example, there is the case of a man who cycled around the university area and city centre of Belfast attacking women with a knife and who later told a court that he did so because a woman had rejected his romantic intentions. That is as clear-cut a case as could exist, but our data does not reflect that. That means, in turn, that appropriate interventions will not be tailored to address that man's underlying prejudice as part of his probationary conditions. Since then, as recently as last week, there have been cases before the court regularly in which the judge's remarks have recognised and made clear that a crime was motivated by misogyny, but those remarks are not being collated, and the justice system is not empowered to take them seriously. The Bill can change that.

I will hand over to Sophie.

Ms Sophie Nelson (HERe NI): Thanks, Elaine. Similarly to the WRDA and the Rainbow Project, HERe NI, which works to support LGBT women and their families, supports the Department bringing forward the two additions to the statutory aggravator model: transgender identity groups and misogyny. I will talk about why we believe that it is so important to reform hate crime legislation and why those aggravators should be brought forward separately rather than under sex or gender more generally.

We need actions that will not only send a clear message to victims that the judiciary take hate crime seriously but build confidence in reporting. Currently, less than 3% of hate crime advocacy cases that go through the advocacy service, which is headed up by Victim Support, reach trial, and less than 1% of those have a hate-sentencing conviction. We know that most victims do not even get to the initial stage of reporting. For example, among HERe NI's service users, in the past year, 75 women were a victim of or witnessed a homophobic or transphobic hate crime or incident, and only 23 of those 75 reported that to the PSNI. We believe that it is also really important for improving data collection. Having the aggravator recorded at offence stage is not only good practice but would help us as support organisations to understand the scale of the problem so that we can provide tailored support and improve training and education on the motivation behind such hate crimes. As Alexa said, the PSNI already records transgender identity-motivated crimes, so that should be reflected in the aggravation model as well.

We are also pleased that the Bill recognises a range of identities and protected groups. The understanding of intersectionality in the Bill would support wider efforts to see those common intersecting areas of prejudice. In his review, Judge Marrinan highlighted the point that that would enable identification of those who may be "particularly vulnerable" to abuse. HERe NI works with women who come from a range of backgrounds, including refugee and asylum-seeking women and disabled women, all of whom use our services and may face hostility on multiple grounds if they experience a hate crime, due to their race, disability or sexual orientation, for example. That is what we call "combined discrimination ", and it can put certain individuals at greater risk of harm. We believe that there is an opportunity in the Bill to recognise combined discrimination by allowing multiple hostility aggravators to be attached to the offence.

We are also clear that bringing forward those aggravators would go a long way towards addressing one of the Executive’s top priorities: ending violence against women and girls. The addition of a misogyny aggravator would recognise where misogyny exists and how prevalent it is. The reason why we want that as an additional aggravator, rather than there being just gender, is that there is widespread evidence that misogynistic views permeate our society and no real evidence base to suggest that men who are a victim of hate crime are motivated by an attack on their gender specifically.

Spotting the existence of misogyny earlier in a perpetrator's journey may also help to drive down rates of femicide by identifying the risk before behaviour escalates to the point of murder. I think particularly of someone such as Jonathan Creswell, who had committed previous offences before he went on to murder Katie Simpson. Having that aggravator would put on record that the person's hostility was motivated by misogyny. We believe that, legally, it should also appear on domestic and sexual violence disclosure records and be accessible to women on request.

Finally — Alexa has already touched on this — the introduction of the transgender identity aggravator in particular is so important to improve equity across the four nations. In England and Wales, there is already an enhanced sentencing model in which transgender identity is covered. In Scotland, the aggravation model covers transgender identity and variations in sex characteristics. We know that that is being used in practice. In Scotland, during the previous financial year, there were 104 charges reported with an aggravator of transgender identity. It is really important to capture that in a society in which, for many people, it is becoming increasingly hard to be LGBTQIA+.

We take this opportunity to thank the Committee for hearing from our organisations. We look forward to taking any questions on our work and on Part 6 in particular.

The Chairperson (Mr Frew): Thank you very much, and thank you for being so concise. I really appreciate it.

Ms Sheerin: Thanks to you all for coming in, for your really good submissions and for your concise verbal presentations.

Alexa, my first question is for you. I agree with you that not including transphobic hate crimes as a statutory aggravator is a missed opportunity. You identified that that was blocked. Have you had conversations with the Department or the Minister about that?

Ms Moore: Yes. We engaged with the Department and the Minister pretty consistently while the hate crime elements of the Bill were in development. We talked about the language that would be used in the Bill and how things would be defined. All the soundings that we got from the Department and what had previously been said publicly indicated that transgender identity should be included and that the Department had plans to bring it forward as part of the Bill. Obviously, when the Bill was published and it was not included, that was really disappointing. There are lots of different views on issues affecting transgender people, but we can all agree that violence and abuse based on a person's identity should not be tolerated.

Ms Sheerin: Yes. I agree with that, and you were diplomatic in how you put it. To me, some of the views about other people's identity dehumanise them. We are seeing a rise in that, and I wonder whether you agree that that is leading to the normalisation of physical manifestations of hatred towards a section of our community.

Ms Moore: It is difficult to say. There are not many trans people in the public eye in Northern Ireland. I am one of probably very few. I get a lot of abuse for that, you know. I am thankful not to have been subjected to physical violence, but the rhetoric and language that we hear in our politics and our media set a tone. There has been a bit of an emboldening of people to take that violence on to the streets against their neighbour or whomever. Unfortunately, in our services, we see a lot of trans people who experience daily abuse when walking down the street or whatever the case may be in the areas where they live. It is pretty much daily abuse, and they have stopped reporting it. They have got sick of it and have stopped reporting it, because, every time that they report it, they go through the whole process with the PSNI, and the PSNI looks into it and decides that there is not enough evidence or that the legislation is not tight enough to take a prosecution forward. Even in the event of a physical assault, the assault is taken forward but the transphobic motivation is lost, because it is not covered under our current legislation. Even where it is covered, for instance in homophobic hate crimes, we often see that the PSNI does not gather the evidence that it and the Public Prosecution Service (PPS) need to take the charge forward.

Sorry, I have gotten away from your question. I would say that ,yes, the tenor and tone of the public discourse on trans people emboldens people. There are hundreds of comments on all the articles about conversion practices this week that I spoke about, in which people just call me a man. That is their view, and that is fine, but when people hear that coming from politicians in this place, it emboldens them. I want to take the opportunity to encourage people to please be mindful of that. We have to set an example and a tone here. There are real people at the nub of this issue.

Ms Sheerin: Thanks. You have answered my question, and you have also expressed the real-life risk of not including transphobia as an aggravator just by stating the fact that it is not being recorded. If we do not record something, we cannot deal with it, so that is helpful.

I have one other question. Again, you probably covered it in your presentation. We have had a number of presentations about the benefit of adding misogyny as a statutory aggravator and conversations about whether to add "misogyny" or "gender/sex". In my view, by not adding misogyny and by leaving it vague, as gender/sex, we miss the reality that we have a problem here. In your presentation, Elaine, you referred to crimes that may be man-on-woman but are not motivated directly by misogyny. In earlier sessions, we have had conversations about the fact that, if an incident occurs in a domestic situation and is covered by the domestic abuse aggravator, there is no need to capture its misogynistic nature. I understand the rationale for that, but I am concerned that, if it were not the case that such things were driven by misogyny, we would have equal levels of female-on-male violence.

Ms Crory: And we do not.

Ms Sheerin: Yes. It is about how we capture that fully. I do not know whether you caught any of Karen Sweeney's presentation, but she eloquently put the point that there is a need to capture low-level harm as misogynistic in order to prevent further harm, which I totally understand, but, even within the home, it still needs to be captured.

Ms Crory: It is a tricky one. Those crimes are built on misogyny. Without the misogyny, they would not have the manifestation that they do. We are talking about more than a quarter of the crimes that are reported to the PSNI, let alone the ones that happen and do not get reported. A huge proportion of the work of our criminal justice system is about prosecuting crimes that are misogynistic, although that is not how they are labelled. Why would we ask for this and then ask for it not to be applied to those crimes? We need a deeper piece of work on misogyny and the types of crime that it drives. The Scottish working group that I mentioned recommended legislating for several offences. The offence that the Bill presents an opportunity to add misogyny to as an aggravator is only one of a suite of offences that include driving misogynistic hate, online or in person, through rhetoric — what might be called hate speech — and other things.

I am often heard on the radio saying, though not in so many words, that there is a need for us to look carefully at our sentencing guidelines, which often strike the public as intuitively wrong: how could that sentence be so low for a crime so affecting to other people, never mind the victim? The answer is that our sentencing structure is built on an old legal system, which has enormous benefits in its centuries of precedent but lacks benefit when it comes to misogyny. Women were barely people when most of the crimes were conceived of, so we were grafted on at the end. I was a teenager — I am not young, but I am not that old — when the law changed on whether it was possible for a man to rape his wife. When we think about how recent those crimes are, it is not surprising to us that our legal system has struggled to get its head fully around what it means to be raped by your husband, a man whom you are supposed to be able to trust all the time. In fact, he will end up with a lower sentence than if he had been a stranger on the street.

There is deeper work to be done. That was also the conclusion of the Scottish group, and we endorse that completely. The difference here is in the types of crime that would be captured by the Bill. Number one, they are similar to the types of crime for which there are other hate motivations, and, number two, they are the types of crime that are not recognised as being motivated by misogyny. On an emotional and a social level, we already know that a lot of those crimes are inherently misogynistic. I hope that I am answering your question properly.

Ms Sheerin: You are.

I will ask just one more, if I may, Chair. You have covered that really well.

Sophie, you touched on the fact that intersectionality needs to be reflected, so we need a way of ensuring that, if somebody is attacked because of three characteristics, although only one aggravator might be applied, the other factors will be recorded. Likewise, Alexa, your presentation touched on the incitement to hatred aspect. I want clarity from you on one last thing. In the earlier session, we talked about the potential to add an aggravator for misandry. Would doing so take anything away from misogyny on the basis that that would be to equate the two things when, in reality, they are not equal?

Ms Crory: Going by raw numbers, men experience hate crime more often than women, but that is not because they are men. It is because of their race, their religion — sectarian hate crime is a huge thing — and all those kinds of thing; it is not because they are men. The reason for that is simple. Racism happens on top of a structure of centuries of racism; misogynistic incidents happen on top of a structure of centuries of misogyny when women were property. That structure does not exist for men. There has never been a set of laws that discriminated against men because they were men. While there may be individual women, or men, who feel strongly negative about men and treat them poorly, that treatment is not built on systemic inequality. I understand that the Bill proposes to be able to add characteristics if there is an evidence base for them in the future. I do not believe that there is anything like an evidence base that men are experiencing hate crimes driven by misandry. An enormous amount of hate crime against men is based on their religion, race and other such things but not on the basis of their gender. That is really not the case, and to create such a hate crime just because you have to balance against misogyny would actually diminish misogyny.

Ms Sheerin: Thank you.

Ms Egan: I thank all of you for coming to address the Committee. I am interested, Elaine, in what you have been saying about the Scottish model. Is that the preferred way to insert the misogyny aggravator into our law? Is that the best practice or can we learn from other areas?

Ms Crory: At the moment, the Scottish model is theory rather than practice. Baroness Kennedy went off with a group of legal experts, judges and so forth and worked up a detailed proposal that was supposed to be covered by a misogyny Bill. For various reasons to do with the collapse of the shared Government in Scotland — the Government became single-party and then came another election — it has fallen off the agenda or may not be happening at all. It is difficult to read the situation at the moment. It does not appear in Scotland's new Programme for Government, I will put it that way, which is fairly detailed.

We are six months out from purdah and an election — all being well, we will last another six months

— sorry. Let us assume that we have an election next May when we are meant to, we are really looking at it being the start of September next year before you would even begin to bring in a new Bill, assuming that the Justice Minister does not have 50 other things on their desk when they walk in, and they probably will have because so many things are supposed to get through in this mandate that may or may not get through. If it meant putting it on the very long finger as opposed to getting one part of it through today, I say that we revisit the Scottish model and do a Northern Ireland-specific version of it when there is time and the next Justice Minister has their feet under the desk. We can do this bit now. We can get it done and dusted before the end of the mandate, and it would be to fail women not to.

Ms Egan: I appreciate that. A good way to go about it was creating a working group bespoke to that region. I would like to see that happen in Northern Ireland, but I am conscious that, if we do that, it will not go into this Bill with the time that we have. I wanted to know about learnings from other places, including Scotland.

I met Alexa about this recently, and I appreciate that you have all come, especially with the same message. You have provided us with a number of recommendations, but is it fair to say that the two priorities for your organisations are the additional aggravators of misogyny and transgender?

Ms Crory: Yes.

Ms Nelson: Yes.

Ms Moore: Yes.

Ms Egan: OK. Thank you.

Mr Kingston: Thank you all for attending. Alexa, whatever anyone's view on transgenderism, nobody should suffer violence, abuse, intimidation or harassment because of their identity or how they choose to live their life. It is utterly wrong that that has happened to you and to others from your community. I want to put that on the record, and I say that sincerely.

In your experience, in the way in which crime against trans people is dealt with by the police and the courts, is that factored into sentencing, which is what the Bill is about?

Ms Moore: The short answer is no. As Sophie said, in less than 1% of cases that go to the hate crime advocacy service for support, when people have been the victim of a hate crime, is hostility on the sentencing charge. We have the enhanced sentencing model, and the problem with that model is that the hostility or hate motivation is just tacked on at the end rather than its being considered throughout. When the police are gathering evidence, they are not thinking about the hostility motivator. They are thinking, "How do I gather the evidence that this assault happened?" and not necessarily that it happened and was motivated by transphobia, homophobia, racism or whatever.

I have my phone open because our hate crime advocate sent me some anecdotal information about what we have seen through the service. Sometimes, when the police refer someone to us, saying that there was a homophobic hate crime, it has actually been a transphobic hate crime, and the police did not really pick up on that. We have also heard about instances where the victim has not had their identity respected by the police officers in charge or an officer has not had the training to recognise what transphobia might look like as it pertains to an assault.

Beyond the legislative framework, which, fundamentally, does not allow for transphobia to enhance a sentence, because it is not included in existing legislation, the structure around it does not function as it is meant to.

Mr Kingston: We all talk about "hate crime", and we had the police in to talk about it, but it is not an offence. They talk about "an offence aggravated by hate". People think that hate crime is an actual offence, but it is not. I am sure that you are aware of that. It is assault aggravated by hate. Some of those might exist currently. I must check about racial hostility, but I presume that it would be factored into a sentence. A lot of it is about trying to put things together formally to have a sentencing system that captures things.

Ms Moore: In theory, racial hostility and motivation can be captured. In practice, the court often does not consider those things. The way that the model works now is that it covers sectarian hate crimes, racial hate crimes, homophobic hate crimes and disability hate crimes. As you said, for something to be a hate crime, it has to be a crime first, so it has to be an assault or other form of crime. We are not just plucking new offences out of the air. The problem, which we outlined in our submission — Judge Marrinan outlined it as well — is that, when you do not consider the hate motivation through the whole process, it falls away. It becomes very hard to prove hate motivation if it has not been considered throughout; in the PPS charging someone, the police gathering evidence and the case being presented against that individual. If it is not included the whole way through, it usually falls away at the end.

Mr Kingston: OK.

I am thinking about where misogyny should sit in the Bill or whether it should be in the Bill. First, it is important that every crime is dealt with on its own merits. The criminal justice system should be fair to everyone, and people should not feel that it is biased against them. The wording in the Bill is gender neutral. We have had a discussion with other witnesses regarding, in particular, clauses 33 and 36, which class together aggravators as relating to "hostility" and "vulnerability". I understand that many will feel that including the female gender as a vulnerability is a bit insulting, as if to say that women are somehow vulnerable because they are women. The vulnerability factors recognise where someone is generally physically weaker. They include young age — a person under the age of 18 — old age and disability. That means that, if a person was attacked in a bullying style because the perpetrator thought that they could dominate that person as they were physically stronger, that could be factored into the sentencing. If the victim had been someone of equal strength to the perpetrator, for example where it had been a man attacking another man, the perpetrator may not have done what they did. The perpetrator may have taken advantage of the victim because they perceived that person to be vulnerable, physically, in comparison with them. That is probably easier to prove. The Chair made this point on clause 33. To prove aggravation by hostility, you are saying that the perpetrator hates all women, effectively.

Ms Crory: There is a higher bar.

Mr Kingston: It is a much higher bar to prove that. The perpetrator will say, "I do not hate women; I love women". I do not mean to be flippant, but they will say, "My mother is a woman. I have sisters, I have children". They will say that it was just that the person made them so angry or that she attacked him. It makes it much more difficult in practice. Most men will say that they do not hate women. I know that there is a whole argument about having equal respect and about the whole history of how women have been treated. A vulnerability aggravator might be an easier one to make effective, where you would be saying that the crime was about taking advantage of someone who, in that moment, they thought that they could dominate physically.

Ms Crory: I completely hear what you are saying, and I understand where you are coming from. There are three reasons why we do not think that it belongs there. First, being a women or a girl is not inherently a vulnerability unless we live in a world that is shot through with misogyny, which we do.

Secondly, the fact that it is easier to prove ends up flattening what misogyny really is. Misogyny is understood to be not just hate but bias, prejudice, bigotry and contempt. It means something, and I do not think that it is a word that we should be throwing around. I think that it should be attached to crimes where it is motivated genuinely by misogyny, even if that is a little more difficult to prove. Alexa was making the point at the start that what we want to be doing is charging a person with, for example, assault aggravated by misogyny or whatever the aggravating factor is. That is then carried all the way through in the work of the police investigation, the PPS charges and so on. It may not be easy, but, when a conviction happens, it means something. Judges are already able to factor in and do factor in to sentencing the relative vulnerability of a victim without being told that they have to. They will add in considerations such as, "The person was reliant on you, and you knew that that person could not run away or escape". That factor is already built in and does not carry the implication of saying that, because you are a women or a girl, you need to be protected and looked after.

That is the third point. One step after saying that women and girls are inherently vulnerable because they are women and girls is saying that, therefore, they need curtailments on their lives, on their freedom and on their expression. I am not suggesting that you are suggesting that at all. What I am saying is that the sinister voices outside of this room who make their living on the internet and wherever else would immediately seize upon such an opportunity, a well-meaning opportunity, that hands them the ammunition they need to say, "It just goes to show that they should not be outside of the home and should not be in the workplace etc".

Ms Nelson: Another point is that it really shows the importance of the education piece on what misogyny actually is. Someone can claim to love their mother and their daughter and still say misogynistic things. There is no denying that those are still influenced by historical biases and the patriarchal society in which we all grow up. There can be comparisons with rape myth education for jurors. There is a similar need for education for judges and jurors around misogyny, and it is important to instil that because most of our institutions, to this day, are inherently misogynistic.

Mr Kingston: In closing, even if it means that there are fewer occasions where that aggravation is applied by being proved, you still prefer that that be classified as a hostility rather than a vulnerability.

Ms Crory: Yes.

Ms Moore: Let us say that it is added as a vulnerability. Would that not make every crime against a woman a misogynistic crime, inherently? It would massively inflate the numbers. What is really important is that, as Sophie touched on in her opening statement, including that aggravator would help us with data collection. It would help with knowing the prevalence of misogyny, knowing where misogyny is happening and knowing, maybe, the backgrounds of the perpetrators of that misogyny so that we can take a whole-society approach in dealing with it.

Mr Kingston: OK. Somebody else might want to ask about men. I will leave that.

The Chairperson (Mr Frew): Before I bring Patsy in, I want to nail something. This is really interesting, by the way, because you were very strong on this, which is exactly what we need to hear. Are you totally opposed to a stand-alone offence of femicide?

Ms Crory: No. "Femicide" is a word that is widely in common usage to describe the murder of a woman anyway. The cat is out of the bag on that one; the genie is out of the bottle, so to speak. People are already using that word as a concept to describe the difference between a murder that takes place because two people are, for example, fighting and something gets out of control or because somebody is seeking financial gain versus a murder that often happens in a domestic setting — "This person is going to leave me; I can't let her leave me" and that kind of thing. There is something different about that that is not currently captured by anything other than the use of the word "femicide" to describe the systemic murder of women. "Systemic" is maybe the wrong word, but that is the common thread that connects the vast majority of murders of women.

We do not have anything in front of us about the offence of femicide because it was not —

The Chairperson (Mr Frew): It is not in the Bill.

Ms Crory: — part of our evidence, but we need to carefully consider what that means and what comes after the labelling. I am not opposed to the labelling at all, but what does that mean? Does it mean something different when it comes to sentencing? Does it mean something different when it comes to what kind of conditions a perpetrator, or an alleged perpetrator, of femicide would be under, whether they are on remand or in prison? It is our view that, in order to help correct their ingrained biases, whatever they may be, we should open up additional training and support through the probationary process for offenders who will come out of prison at some point. Misogyny and transphobia are in front of us, but there are all the other ones too, such as racial prejudice, sectarianism, etc. We should take advantage of the opportunity to do deep work with those people while they are in those conditions. It is not always successful, but we should try to do that.

The Chairperson (Mr Frew): This will be off the top of your head, so I understand if you do not want to give an answer. Do you know of any examples of models across the world that we should look at when it comes to femicide?

Ms Crory: My understanding is that Canada has quite a good one, but I am not sure whether it is the best one or just the first one that popped into my head. I will need to come back on that one.

The Chairperson (Mr Frew): I really appreciate that, Elaine. Thank you.

Mr Kingston: May I come in on that point?

The Chairperson (Mr Frew): A wee snippet, and then I will bring Patsy in.

Mr Kingston: Apologies. I just want to pin this down. If misogyny is recognised as aggravation under hostility, is there any need to have femicide named? It would be murder with an aggravator of misogyny. Femicide is recognised in common parlance, but what would be the purpose of having that in the Bill?

Ms Crory: The way that I see it working is that its main benefit is labelling and understanding what kind of support goes in to intervene regarding that offender when they are in prison. I see misogyny and femicide as two different types of offence. If a person assaults me on the street at night for misogynistic reasons, they will not get charged with femicide because I am alive and well to tell the story. By definition, "femicide" means that the victim is dead. If you are charged with a number of offences all at once, everyone, including the court, will pay attention to the headline offence: the murder, not the fact that, for example, you also broke into somebody's house to commit that murder. The headline offence is the one that takes precedence, because it is the most serious offence with the most serious elements attached to it when it comes to sentencing. I see it being attached to two different types of crime: one is exclusively for murder, and the other is for any other type of crime that can be motivated by misogyny.

Mr Kingston: OK.

Mr McGlone: Tá fáilte romhat, a Elaine, ar an chéad dul síos.

How could the definition of "misogyny", for the purposes of its being a statutory aggravator, be distilled and clarified?

Ms Crory: How distilled can you get without losing the nuance?

Mr McGlone: To ensure that it is precise and that nobody will walk away. To ensure that it will secure a conviction in law, if required.

Ms Crory: OK, I hear you. Judge Marrinan suggested that hate motivations include attitudes of "bias, prejudice, bigotry or contempt" — in this instance, against women or girls. The Scottish definition is "prejudice, malice and/or contempt". They are very similar, and I would not lie awake at night worrying about the difference between the two, as long as the definition includes "contempt" and "prejudice". People often picture hate as being quite vitriolic: for example, someone out on the street shouting about something. However, very often, hate does not manifest itself in that way. It is the feeling that women, or whoever the target is, are lesser beings.

Mr McGlone: I get your thinking there, and it leads to the "malice" aspect.

Ms Crory: Yes

Mr McGlone: How do you define "malice"? How could you define that? Maybe there is a legal definition of "malice"; I do not know.

Ms Crory: I think that there is but that it is for malicious communications and stuff like that. How do you distinguish persistent and annoying communications from malicious communications? I do not have that in front of me, but I believe that there is a definition of "malice" in law.

Mr McGlone: OK. Thank you.

The Chairperson (Mr Frew): It gets to the point where you are trying to define a definition, which makes it very difficult.

Mr McGlone: That is true. Alexa, how should "transgender identity" be defined in legislation to ensure that we have legal certainty?

Ms Moore: We have recommended a definition. In our submission to the Committee, we said:

"Gender reassignment" is already a characteristic in the law. If you look at the Sex Discrim—.

Mr McGlone: A characteristic or a definition?

Ms Moore: It is defined in the law.

Mr McGlone: OK.

Ms Moore: The Sex Discrimination Order includes "gender reassignment", and it uses roughly the same definition. It is especially important to include non-binary people in the wording. I would not say that there is legal uncertainty, because there have been cases where someone who identifies as neither male nor female has been protected under the "gender reassignment" aspect of the Sex Discrimination Order.

You would not need to be trans to be protected by a "transgender identity" aggravator. We were talking about this example earlier. If you are not gay and you suffer a hate crime when walking out of a gay bar, but the perpetrator has been motivated by homophobia because they saw you coming out of that gay bar, you would still be protected under the legislation and could take that case forward as a homophobic hate crime. It would be the same if we added "transgender identity". There is a lot of discussion about who is allowed access to particular spaces: toilets or whatever. For example, someone who is not trans but is a butch-presenting woman could be harassed or attacked when using the toilet because someone thought that she is trans, and she would also be protected under this legislation.

Mr McGlone: Thinking is one thing, but how the thought is expressed is another.

Ms Moore: That is true.

Mr McGlone: It is about the outward expression of the thought. A person could have a thought that never passes beyond their mouth.

Ms Moore: Absolutely.

Ms Nelson: That is why the basic offence needs to be there, with the aggravator attached to it. As Alexa said, if you are perceived to be transgender, you can still draw on that aggravator, as the perpetrator has committed the offence because they thought you were transgender.

Mr McGlone: I am sorry; I want to go back to "thought you were". If the perpetrator has not expressed that thought, it is very hard to —.

Ms Moore: That is true.

Mr McGlone: Do you get what I am saying? Unless you are a mind reader, how do you determine that a person thought that?

Ms Nelson: That would come about by analysing statements. How is it proved that a crime happened? It is proven through a judge looking at statements, the PSNI looking at recordings, and things like that. If, while you are getting beaten up, someone says, "You're gay: you're disgusting", that is very clearly not just a thought; It has been verbalised, it is a statement, and it can be proven that there was harm because of that.

Ms Moore: It goes back to my earlier point: does the PSNI know how to gather evidence of homophobia, misogyny, racism or whatever? Does the PSNI know what to look out for? Is the PSNI checking, for instance, the social media posts of someone who has attacked a gay person on the street? If you look back a few days later and see that they had previously tweeted homophobic remarks about x, y or z, is that linked, and does that prove a motivation? You are hitting on a really important point about how to prove the motivation. What is the evidence-gathering process for that? Are the police equipped and trained to recognise and gather that evidence?

Mr McGlone: I raised that matter with the police when they were here. I asked whether they look at the case in the round — not just the specific incident, but the motivation and traits exhibited by the person and probably expressed by that person on social media. The police assured us that they do that and would do it.

Ms Crory: I saw a presentation a little while ago — I do not have it with me, but I can easily send it to you — not from this jurisdiction, but from the South. It was an analysis of successful prosecutions under the South's hate crime legislation. It looked at the evidence that got people over the line into accepting the motivation. Overwhelmingly, they were things that were issued forth from a person's mouth while the crime was occurring — slurs and things that were shouted or said. If such evidence was not immediately obvious but was suspected, when they then looked into the person's social media history or even their conduct outside of that particular incident, it was often clear that there was a pattern: perhaps, they had been involved in three homophobic attacks. On the occasions in question, the perpetrator may not have uttered a homophobic slur, but the attacks happened outside a gay bar, and everything added up. Overwhelmingly, however, it was based on things that people said.

Alexa gave the example of people in bathrooms. Quite often, that starts with a verbal challenge of, "You don't belong here", and the response is, "I'm just using the bathroom", and the incident escalates. A person saying, "You don't belong here" can be enough to beg the question as to why they thought that that individual did not belong there, as they are a stranger to that person. When you add in lots of other factors about the person's conduct, a picture can form. I will find that presentation — I have the slides — and send it to you.

Mr McGlone: Go raibh maith agat.

The Chairperson (Mr Frew): To be clear, in clause 33, you first have to prove the hatred, and then you have to prove the motivation, which can be slightly different. You may hate something, someone or some group, but you could get into a fight with somebody where the offence is irrespective of their gender. Do you know what I mean? It works both ways. Are you content with clause 33(2)(b), which states:

Just before that, clause 33(2) states:

as well as all of the other protected groups. The inclusion of "presumed" takes us back to the example of someone coming out of a gay bar. Are you content with that wording? What do you think "immediately before or after" means?

Ms Crory: What is "immediately"? Yes. That is a tricky one. The word "immediately" adds a complicating factor, and it may not be the best use of a word. Is five minutes before "immediately before"? It is within the realms of saying that it is definitely a factor in what just happened, but you can imagine that a clever defence barrister would immediately say — pardon the pun — "That was not immediately before", and they would have grounds to say so. It is an unnecessary qualifier. It could easily be "before, during or after" without the qualifier that makes it just that little bit —. It is already a difficult crime to prove.

Our view is that you will not get a massive influx of those kinds of convictions. That is OK, because the harm caused by those crimes is so enormous that we want our legal system to take them very seriously; to treat them very carefully; and to have the public and the system respect the gravity of that harm, not just to the victim but to the whole community that those crimes affect. If that means slightly fewer convictions, that is fine. We do not need to put in place unnecessary barriers, such as the word "immediately", that will enable people who have done what everyone knows they have done to get away on a technicality.

The Chairperson (Mr Frew): To me, "immediately" means "at the scene".

Ms Moore: Yes.

Ms Crory: Yes.

The Chairperson (Mr Frew): If you were in the house that day at 5.00 pm and tweeted something hateful, and then you went out and assaulted somebody at 8.00 pm, I am not even sure that that could be used.

Ms Crory: Yes.

Ms Moore: As for the existing model, our internal data — we do what we used to call a "state of the community" survey, which we thought was funny — looks at LGBT people's experiences in different areas of life: housing, health, justice and things like that. In our last survey, over 51% of respondents said that they did not report hate crimes to the PSNI. The key reasons for that are that they thought that it would not be taken seriously, that there was no point and that it would not get anywhere anyway. If we put in onerous conditions such as, "It has to be 'immediately' or 'at the scene'", we almost undermine the offence before we even put it into law.

The Chairperson (Mr Frew): Understood.

Ms Nelson: Another thing about the wording that I will put on record, Paul, is that, where clause 33(2) says:

we adopt an intersectional approach and support multiple aggravators being allowed in that subsection, so that an offence could be aggravated by both racial hostility and religious hostility, for example.

The Chairperson (Mr Frew): Good shout. That is a good one. Thank you.

May I ask you one more question before Ciara, who is sitting there patiently, comes in? Misandry has been talked about. It has been raised a bit, and I raised it in an earlier session, because there is validity in it. If we recognise that there is a need to include "misogyny" as an aggravator, how can you be against "misandry" as an aggravator? It is not a zero-sum game, as you said at the start. It is about protecting victims, no matter how much of a minority or a low percentage those victims are.

Ms Crory: I agree with you: it is not a zero-sum game. I just do not believe that there is any evidence base that men experience hate crime because they are men. Men experience hate crime in huge numbers.

The Chairperson (Mr Frew): Yes, because of all the other factors that you mentioned.

Ms Crory: It is sectarian; it is racist; it is that kind of thing.

The Chairperson (Mr Frew): Yes.

Ms Crory: In fact, probably more young men than young women experience hate crime, with it being heavily motivated by things like race and religion — or perceived religion, especially in Britain. There is no evidence that that hate crime is because of their gender. If, however, an evidence base were to appear that showed that it was because of their gender, that would be different.

Another factor, which I have mentioned before but will reiterate, is that misogyny is built upon centuries of having a system in which women were treated as, at best, second-class citizens and, in some cases, as property. We still have not managed to get rid of some of it. Attitudes about women that we hear now — that they "belong in the home" etc — come from an old set of beliefs that many of our existing systems, including our legal system, are built on — those systems were built while that was the law. My mother had to leave work when she got married. As I said, rape was legal between a man and his wife.

Ms Ferguson: You were not allowed to give off.

Ms Crory: Yes, and we are not talking about a million years ago. Those attitudes are still there. We have never lived in a matriarchy, in which men have been oppressed. It is possible that, at some point in the future, it will be different.

The Chairperson (Mr Frew): Having lived for 50 years on this planet, I recognise the society that you have described. Do you not think that that causes men to under-report some crimes?

Ms Crory: I think that men do under-report some crimes, especially sexual crimes and so forth. I think that men under-report lots of things that happen to them, and that men are harmed enormously by patriarchy. We need to put more work into promoting healthy masculinity. That should happen alongside the work on ending violence against women and girls, because healthy, balanced men are less likely to commit those crimes. However, I do not think that men experience crimes such as domestic abuse and sexual crimes because they are men as much as women do because they are women. Those crimes are not based on misandry; if those crimes are happening to men, there are likely to be other factors involved. That is not to say that, if an evidence base were to be produced at some point in the future that contradicted what I have just said —.

The Chairperson (Mr Frew): Let me take it a step further. You talked about an evidence base. If there is a court case because an offence has been committed and investigated, and there is evidence that, in that one instance, it was misandry but there is no misandry aggravator, we will have failed that victim.

Ms Crory: I struggle to see what the evidence base in that instance might be. The crimes that men under-report to police tend to be very personal ones, such as domestic abuse and sexual violence. Those are the things that we have carved out of this for misogyny, so it would not be a parallel situation. Think about how you would have to evidence that. We have talked about slurs that a person might use while committing a crime etc. When men experience crime, it is overwhelmingly the case that the perpetrator of that crime is another man. For example, men get sexually assaulted and beaten, as a punishment, by men who perceive them to be gay. That is already homophobic in motivation. There is a whole issue of violent crime against men in prison. That may be a vulnerability issue and there may be other factors involved, but it is not because they are men, because the people carrying out that crime are overwhelmingly men.

Back in the 1960s in the United States, Valerie Solanas targeted men because they were men. She violently attacked men, and then was promptly arrested and went to prison. That was before we had the kind of legal framework that we have now anyway, but the argument to change the law in the here and now would need to be more robust than the fact that, once upon a time, 60 years or 70 years ago, one person committed crimes that were genuinely motivated by a hatred of men.

Ms Moore: If we think about this in the context of hate crime, we see that, to go back to Elaine's point, it is also about the power imbalance and structural inequality that exists. It would be like saying, "Well, because we have disability covered, should we not make sure that non-disabled people are covered in case there is a hate crime against a non-disabled person because they are non-disabled?". Those are hypothetical scenarios that almost certainly will not happen. If they were to happen, there would be other ways in which to deal with them, whether it be the "vulnerability" aggravator or other forms of hate crime with which men are overwhelmingly targeted because of their racial identity, sexuality or gender.

The Chairperson (Mr Frew): I have one more question, after which I will hand over to Ciara. Clause 1(4) states:

I am worried about clause 1(4)(b). When you read that line, what does it say to you, and is there a concern there?

Ms Crory: There is a concern in general. There is a wider public conversation about how to assess the character of the offender. We have talked about whether character references can ever come remotely close to capturing the character and circumstances of the offender or whether there is an inherent bias to them. I am not sure how a judge can be confident that they are doing that with a bird's-eye view and taking everything into account. It could be a factor in the opposite way. It goes to what we spoke about: a person may not utter a slur while they commit a crime that is motivated or aggravated by hate, but they may spend all their days and nights online, talking about how much they do not like "insert group here". That goes to the character of that person. In an ideal world, it could take into account someone having a long history of multiple offences. We know that, in some offences, that is weighed and makes a difference to the sentencing but not to anything else.

The Chairperson (Mr Frew): OK. Ciara, you have been very patient.

Ms Ferguson: I have a general question. We are close to the end of the session anyway. As you said, alarmingly, misogyny is inherent in our society, as it has been for centuries, and it is escalating, as is the huge amount of abuse, particularly of those who are transgender. I want to get a feel from you of the current justice system in general, given the fact that you work with women and those who are transgender and can see the experiences that they go through.

With reference to the form of "hostility" that is in the Bill — we need more — what practical difficulties do victims currently experience? How do they feel, and how could the Bill make a huge difference to them? I refer not only to their reporting crimes — though, as Alexa said, over 51% do not even report such things. Were that to be added to the Bill, how do you think they would feel, based on your conversations with them and on how they feel now?

Ms Nelson: From the victims with whom we have worked, we know that a lot of it is about visibility and representation. They cannot see themselves represented in the courts, because so few of those crimes have had the aggravator attached to them and gone to sentencing. It is important that victims see themselves represented.

As a sector, our funding and ability to provide support to victims is suffering, because we do not have the in-house service provision to do that. All the support that we are able to offer is about signposting, listening to victims' experiences and trying to guide victims as best we can. It really takes those statutory services, such as the PSNI and PPS, to step in and understand the issues and why victims find it hard to come forward. We keep talking about under-reporting, but so much of it is about people coming forward in the first instance. Those bodies need to be equipped to offer the best support to victims and recognise the situation. Services, such as the Hate Crime Advocacy Service and those that are in-house at the Rainbow Project, headed up by Victim Support, help those victims, but, again, it is about restoring their confidence. If victims could see more cases with that hate crime motivation attached to them resulting in convictions, it would restore their confidence.

Ms Crory: We did some research in 2023 on women's experiences of the police and the justice system when reporting all varieties of offences involving violence against women and girls. I will not go into all of it, but people now feel much more comfortable reporting offences to the police. Indeed, our politicians here have done a much better job of legislating on it now. People were saying, "I reported domestic abuse in 2015, and it was awful. The police didn't understand what I was describing, but I went with my daughter to report it last year, and it was like day and night. The police have learned, and they understand. Our legislation is there, and they can do what they are supposed to do". That shows the importance of how this place legislates on women's actual experience.

People were saying that about reporting domestic abuse, but less so about reporting sexual offences. Women still feel that, sometimes, there is difficulty in being open with the police or the police really understanding something that may meet a low bar criminally but is still emotionally devastating, and what that means. Then, it does not appear in the charge, if there is one. Most commonly, they feel disillusioned with the PPS because, they said, the PPS does not really prosecute those crimes so often. The PPS says that there is insufficient evidence. That is when most cases just come to an end — at the PPS stage. People said, "Oh, I just would not go near the police" about exactly the kinds of crimes that would fall into that category: crimes that were experienced by those women because they were women. They would say, "That person assaulted me", "That person spat on my hair on the bus", or, "That person pushed me over in the street", and, "They did that while calling me x, y, and z". Those were the ones who said, "I wouldn't so much as lift the phone". They know — and not just because we have been saying it — that it does not matter how sympathetic the police are: if the charge does not exist, it cannot be brought.

Ms Moore: One of the benefits of the Hate Crime Advocacy Service is that the organisations that are part of it have other services that we can refer people to. We have that relationship with each other. If we are supporting the victim of a homophobic and racist hate crime, we can work together with the Migrant Centre and Victim Support to get them the wrap-around support that they need. We have a new hate crime advocate in post. In cases that have come through to him recently, two clients were referred to Victim Support's emotional support services and two were referred internally to our own counselling services. However, again, those are not replacements for statutory services. Often, someone comes to our counselling service after becoming a victim of crime, whether or not they have reported it, because, a, they cannot access the mental health services that they need through the statutory services that exist or, b, the statutory services that exist are not culturally competent in the way that that victim needs support. They might have to go in and explain what a trans person is, what a gay person is or whatever the case may be. Maybe they do not have to explain it from ground zero, but the counsellor may just not have an understanding of their experience of living life as a trans person, whereas our counselling service, for instance, is run by, and for, LGBT people. That is how we run it.

The question of wrap-around support is really important. The reason that we wanted a stand-alone hate crime Bill is because, first, we wanted hate speech to be in it — it is not in this Bill — and we also wanted the kind of support that people receive to be included and considered under that. I know that it was the Justice Minister's intention to bring forward another Bill after this one. I cannot imagine that it will happen now, given the time that we have left in the mandate. There are other things that are not included in the Bill's ambit when it comes to how victims are supported throughout the criminal justice system.

The Chairperson (Mr Frew): There is the Victims and Witnesses of Crime Bill.

Ms Moore: Yes: there is the Victims and Witnesses of Crime Bill. For instance, we have seen how remote evidence centres (RECs) have been used in sexual violence cases. Is there potential for those to be used in hate crime cases or in cases where a victim feels particularly vulnerable giving evidence in front of someone who has violently assaulted them because of their sexuality or gender? We need a whole gamut of reforms. The Bill is a good start. We need to go further than that, however, and look at wrap-around services, how victims are supported and how police are trained, because, so often, it is that first interaction with the police that determines someone's whole experience of the criminal justice system.

Ms Ferguson: Thank you.

The Chairperson (Mr Frew): Thank you, Ciara. Thank you for waiting patiently.

Thank you very much, Elaine, Sophie and Alexa. That was very interesting and very good session. We seem to have a habit of throwing water over people. [Laughter.]

Thank you very much for your attendance today.

Ms Crory: Thank you so much.

Ms Nelson: Thank you.

Ms Moore: Thanks for having us, folks. All the best.