Official Report: Minutes of Evidence

The Chairperson (Mr Frew): I welcome to the Committee Patricia McKeown, co-convener of the Equality Coalition and regional secretary of UNISON; and Daniel Holder, co-convener of the Equality Coalition and director of the Committee on the Administration of Justice (CAJ). Without further ado, I ask you to give your presentation.

Ms Patricia McKeown (Equality Coalition): Thank you very much, Chair. We thank the Committee for the opportunity to address it. We have already submitted some written evidence.

I will start by saying a little bit about the Equality Coalition. We are a coalition that is co-convened by the Committee on the Administration of Justice and the public service union UNISON. We are a network of over 100 non-governmental organisations and have been around for a long time. We work cumulatively and collectively across all nine categories in section 75 of the Northern Ireland Act 1998 and, indeed, on other protected equality grounds. We provide a forum for unity among multiple sectors when campaigning on equality and rights. The coalition has a body of work on hate crimes and misogynistic crimes. As the Chair mentioned, Daniel Holder and I operate as co-conveners. We have, in fact, just left one of our main coalition meetings.

The coalition and the Women's Policy Group (WPG) came together to discuss the Criminal Justice (Sentencing etc) Bill, and there is a common desire to augment Part 6 of the Bill to include a misogyny aggravator, following the Scottish model. Given the levels of acute misogynistic violence against women and girls in Northern Ireland, which is most gravely measured by, as you know, 30 murders in recent years, we urge the Committee to recommend the addition of a misogyny aggravator to Part 6.

We have been engaging on that matter for a long time. Judge Marrinan's review subsequently consulted on additional protected grounds, and, in early 2022, the Department of Justice specifically consulted on including misogyny in hate crimes.

At that stage, considerable work led by Baroness Helena Kennedy had been undertaken in Scotland on criminal law measures to tackle misogyny. The 2022 report 'Misogyny — A Human Rights Issue' made a recommendation for a statutory misogyny aggravator. In response to that, the Equality Coalition held a seminar on the proposed provisions in the Senate Chamber at Stormont in December 2022 that was addressed by Baroness Kennedy. The event was sponsored by Naomi Long MLA of the Alliance Party, Diane Forsythe MLA of the DUP and Sinéad Ennis MLA for Sinn Féin. The seminar took place at a time when Ministers were not in post here. There was strong support for the proposed misogyny aggravator and other provisions to counter misogyny through criminal law. The Bill presents the opportunity to take forward some of those provisions in Northern Ireland.

I will now hand over to my colleague and co-convener, Daniel Holder, who will focus on the model as an aggravator.

Mr Daniel Holder (Equality Coalition): I am a member of CAJ and co-convener of the Equality Coalition. I was also a member of the expert working group on the Judge Marrinan review of hate crime legislation in Northern Ireland. We discussed and deliberated on the issue but did so at that point without having a codified blueprint for dealing with it. We therefore discussed how best to include protections against misogynistic crime, but, shortly thereafter, along came the work of the Scottish working group, which gave us that codified blueprint. The Scottish working group had put a lot of thought into the matter and done a lot of work, and its report was published in early 2022. There was some consultation done on that by DOJ post Marrinan.

The Scottish working group concluded that adding sex as a protected characteristic would be insufficient and that, instead, a much more tailored and codified approach was needed. One of the provisions was a new statutory misogyny aggravator, along with three other recommended provisions. The first was to add an offence of stirring up hatred against women and girls; the second was a new offence of public misogynistic harassment; and the third was a new offence of issuing threats of or invoking rape, sexual assault or disfigurement of women and girls online and offline. A number of offences were therefore recommended, but the question to ask about the Criminal Justice (Sentencing etc) Bill, because of the Part 6 provisions, is whether a misogyny aggravator could fit alongside some of the other proposed aggravated offences.

In our written evidence, we have set out a legislative formulation for how that could be done. It is taken from the draft Scottish legislation, which sets out a framework for a misogyny aggravator that involves looking at demonstration or motivation — the same sorts of tests as for other aggravators — but that is based wholly or partly on contempt, malice or ill will towards women and girls. I am aware that clause 35 of the Bill provides the Minister with the power to add further protected characteristics through regulations. While that offers some flexibility, it seems to be a way of adding a generic protected ground, such as sex. The clause does not seem to be designed in a way that would allow the incorporation of a more complex, codified legislative vehicle such as a misogyny aggravator.

The Scottish working group ultimately recommended that, ideally, the aggravator would be contained in a stand-alone Bill containing all the offences rather than added to hate crime legislation. At this juncture, our concern with that is that there is an opportunity here to plug a gap. If we do not do it now, it will not happen either at all or at any point in the foreseeable future. There are no plans for a stand-alone misogyny Bill, and, even if that were to happen in a few years' time, it might only incorporate a provision such as a misogyny aggravator. There is an opportunity here to bring it in now. We do not believe that further consultation is required, because that would just delay things that have already been consulted on twice. The Bill provides an opportunity to get ahead of the issue rather than be behind on it.

The Chairperson (Mr Frew): Thank you both for being concise. I remind Committee members to ask questions and not to go into deep philosophy at this stage.

Ms Sheerin: Thanks to you both for coming to the Committee and for your really helpful presentation, which clearly sets out your position. We have had a couple of conversations with witnesses about adding misogyny as a stand-alone aggravator: our party is supportive of that. I feel that it is necessary to get to the root of the problem. Will you speak to the perceived benefit of adding misogyny as an aggravator? If we were to add sex or gender more broadly, would we miss an opportunity?

Mr Holder: That was certainly the Scottish working group's conclusion. It looked at the issue in detail. In essence, doing it that way would disguise the problem. The problem is misogyny. If we just stick in sex and gender as a protected characteristic, that would be out of kilter with human rights standards, such as those in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and those in the Istanbul convention, to which the UK is party, which deals specifically with violence against women and girls. The Scottish working group's conclusion was:

Essentially, if you keep it, in the working group's word, "neutral" and add sex and gender as a protected characteristic, that disguises the reality that there are particular behaviours that target women. This is very much about dealing with the problem that exists rather than taking an approach that would downplay or disguise it.

Ms McKeown: Everything that we have heard over the years from the United Nations, particularly through CEDAW, is clear: we are dealing with systemic discrimination, unequal power relationships and structural social issues. On the level of violence against women around the planet, it is estimated that 840 million women experience violence in their lifetime. There are bad statistics here. The Executive Office report, with which you will be familiar, found that 98% of women in Northern Ireland had experienced at least one form of violence or abuse, half of them before the age of 11. That is symptomatic of something that is driven by ideologies of male supremacy and privilege and a perceived need to assert dominance over women. The work on that covers so many decades. We now have an opportunity to do something to address the 98%, plus that critical figure of 30 murdered women.

Ms Sheerin: In your evidence, you refer to the definition of "misogyny" that the Scottish working group provided. We have had some conversations about how exactly "misogyny" should be defined. People use the term "hatred": I am probably of the view that that does not capture it properly. Do you think that:

is a proper definition that we could apply in law here? Would that work?

Mr Holder: Yes, that is what the Scottish working group landed on, and I think that it is workable. Its view was that, yes, there are instances in which it is hatred, but it is a lot broader than that. The working group's definition brings in some of those broader concepts. Of course, it still relies on the same types of tests as some of the other provisions, such as demonstration and motivation, but it is broader in order to capture that type of behaviour — that demonstration and motivation — when it is targeted at women and girls.

Ms Sheerin: We have had conversations in which people have suggested that "females" or "women" be added to the clause dealing with aggravation by reason of vulnerability, which is clause 36. I have an issue with that, because assuming that all women are vulnerable is misogynistic in itself. I wonder whether you have an opinion on that.

Ms McKeown: I have strong views on it. That is absolutely not the category in which women should land. Hostility is the category for that. It is not a coincidence that women are more than half the human race yet suffer widespread oppression. That is not about being vulnerable but about our relationship to power structures that are patriarchal and dominated by men. The evidence is in front of us all. It is a fact of life.

Mr Holder: To deal with it as a vulnerability is to take the wrong approach, because it removes the ideological element. It removes the misogynistic element. There were discussions around that in the expert working group, on which there was a divergence of views even on things such as age. In essence, age is different. Attacks on the elderly tend to be about vulnerability; it does not tend to be that there is an ideology of hatred towards older persons that is the reason why they are attacked. Being subject to that sort of crime has more to do with vulnerability. That is not really the case with women and girls, where it is about the misogynistic ideology that is in people's heads. Those thoughts can turn into crimes. That is what motivates an attack, and that is why, in the Marrinan review and in the Scottish working group, it very much lands within aggravated offences motivated by that. In the same way as racism or sectarianism is a motivating ideology, this is about misogyny rather than vulnerability.

Ms Sheerin: You have probably answered my question before I ask it, but we have heard suggestions that, if misogyny were to be added as an aggravator, we would have to add misandry.

Ms McKeown: Misandry tends to be a personal sentiment, whereas misogyny is a system of oppression. There is really no comparison. It is not about some kind of balance or equality in that respect, because it is predominantly women who suffer from violence and femicide and other forms of oppression. Again, you do not need to listen to me: the facts are there. They come from UN quarters and from the research that the Executive and Assembly have done. It is testified to by the structures that we have in place to try to eliminate discrimination against women in our society. We have a seriously long way to go.

Mr Holder: We have to be honest: we live in a deeply misogynistic and patriarchal society that is structured by ideologies of contempt for women. We do not live in a misandrist society. There is no way of sustaining that argument. There is no real evidence of any pattern of misandry, and there is no real evidence of misandrist crime. To go back to your first question about whether to add "sex" or "gender" rather than taking a tailored approach, if you take that gender-neutral approach, you create an artificial parity between misogyny, on the one hand, where there are wheelbarrows of evidence of misogynistic crime, and misandry, on the other hand, where there is no evidence. It is a bit like taking another existing hate crime category, that of disability, which expressly covers contempt for people with disabilities and crimes motivated or demonstrated on that basis. There is no mirror image of that to cover crimes against able-bodied people based on hatred of them, because there is no evidence that that exists, so there is no point in doing it. You could say, "Does that matter?", but, going back to the first question, it kind of does matter, because you are not naming or targeting the problem unless you frame it around misogyny. You are changing it into a problem of mutual antagonism between men and women instead of a power ideology that overwhelmingly affects one group and not the other.

Ms Sheerin: Thank you very much.

The Chairperson (Mr Frew): Before I bring Brian in, you talked about misogyny being a system, but we arrest individuals, and individuals are victims. If we had an aggravation of misogyny and it was used 100 times a month and if we had an aggravation of misandry and it was used once in 10 years, would that lessen the offence of misogyny?

Ms McKeown: You would have to have some solid basis for having an offence called "misandry". There is no body of evidence to suggest that it is needed. It is exactly the same as the example that Daniel gave of how you would handle crimes committed on the basis of disability.

Mr Holder: That is an interesting framing, though. In a sense, you are talking about a different way of reaching the same conclusion. If you had both in the legislation and then looked back in five years, you could say, "Told you so. It was one-way", but we know the answer to that question now, and there is a risk that taking that gender-neutral approach would be a statement that we do not know what the problem is and are saying that maybe it is both. I know that is not what you are suggesting, but it —.

The Chairperson (Mr Frew): What about the one man who is a victim of misandry over that 10-year period?

Ms McKeown: He will have been a victim of violence: who says that he is a victim of misandry?

The Chairperson (Mr Frew): That would be the aggravation.

Ms McKeown: It is not a system of oppression by the people who predominantly hold the power, which is what misogyny is.

The Chairperson (Mr Frew): We do not try institutions or systems; we try individuals.

Ms McKeown: Yes, but individuals get to that position because of the society that we live in and the norms —

The Chairperson (Mr Frew): No doubt about it

Ms McKeown: — in that society. Given that, over time, there have been so many pledges by government to get to the root causes of the oppressions and discriminations in our society, that would not be the right way to go. There is no point in pretending that it is equal: it is not an equal situation.

The Chairperson (Mr Frew): Nobody is suggesting that it is equal. Is there not still a need for protection?

Mr Holder: I do not think so, but it is useful to tease out the question in this way. Go back to the general purpose of hate crime legislation. It means looking at the harm that hate crime causes rather than dealing with it as a one-off or rare crime, because it has a broader effect not just on the victim but on the community. That would be the case with a pattern of misogyny but not misandry. There is a symbolic function to the hate crime aggravator: it sends a clear message about criminal behaviour based on bias and inequality to the victim and the group of which the victim is a member in wider society. Those factors make up the rationale behind hate crime legislation. They fit comfortably with the concept of misogyny but not with the concept of misandry.

Mr Kingston: We have had a lot of discussions on that topic with witnesses and among Committee members. It is an important one that we want to get right. With the aggravations, there has to be another offence. An aggravation is basically an additional sentence. Although we use the term "hate crime", that does not exist in law; it is a recognition that there is a hostility or vulnerability — well, particularly a hostility. We understand it best in terms of race, religion and sexual orientation, which are seen as being particular motivations in how a crime is targeted.

My current thinking on the vulnerability aggravator is that, if sex was a vulnerability, there are more cases in which it could apply. Women are quite often in a vulnerable position — situations of domestic violence or when a woman is in a place where a man has taken advantage of her. The Bill talks about vulnerability in terms of somebody "whose ability to protect" themselves "is significantly impaired", which applies particularly to an older person or someone with a physical or mental disability. I understand the reluctance to include sex or gender as a vulnerability. The clauses dealing with the hostility aggravator state that a person has to prove that:

of that group. Others have said to us that, even if it meant that it was applied less often, they would prefer it to be included in the hostility aggravators.

We also had a representative from Men's Alliance Northern Ireland, who highlighted the fact that domestic violence or other offences against men by their female partners are taken less seriously by society. That is not to discount the fact that the majority of domestic assaults are against women, as that happens much more often. The Executive have made ending violence against women and girls a priority in the Programme for Government. It is just so that we are not dismissing something that is already not taken seriously. We are not talking about correcting society or putting society on trial; we are talking about individuals who have suffered a criminal offence and about recognising where their sex or gender was a factor in that.

I accept that sex or gender belong better in hostility than in vulnerability, but I am concerned for men. It was highlighted to us what they would consider to be coercive control, particularly where children are involved or accusations are made. They would feel vulnerable to accusations and trying to disprove them in situations where they are almost assumed to be guilty and their gender is, therefore, used against them. Even though it might occur less often, it is just so that we are not discounting a reality as some people experience it.

Ms McKeown: My first job in the public sector was for the newly formed Equal Opportunities Commission, which was set up to enforce the Sex Discrimination (Northern Ireland) Order 1976. In those days, people argued that women could not be soldiers, bear arms in the police service or be firefighters or ambulance personnel. The arguments centred on vulnerability, weakness, "the gentle sex" and all that. It took some time to contest that, but we live in a different world now where it is recognised that that was nonsense. It was just that the rules were wrong, so we changed the rules to make sure that the rules opened the door to equality of opportunity and equality of outcome. That is in general terms, but the questions that you pose were seriously considered in the Scottish model.

Do you want to take it from there, Daniel?

Mr Holder: There is a lot in what you say. It is certainly important to have that starting point. It is not always understood, even in our sector, that we do not have hate crimes legislation as such at the minute. We have aggravated sentence legislation, which means essentially that it is not investigated or prosecuted as part of or an aggravator of the basic offence; it ends up only at the sentencing stage. The difficulty with that is that there was no proper investigation or inquiry into the aggravating factor on that point. Part 6 switches that model over to an aggravated offences model where someone could be charged with, for example, a sectarian assault rather than just assault, always with the option of falling back on the basic offence if the evidential threshold for sectarianism is not met.

You are right as well that they are all around those categories of motivation or demonstration. There are a lot of examples in the Scottish report about distinguishing crime that would impact on women that is just crime and crime that is misogynistic. That goes to the motivation limb where, for example, there is an assault or a stabbing but the police search the house of the suspect and find incel material or that type of material or, indeed, it is around demonstration of sexist language used at the time of the assault. There are some rather colourful examples in the report that are in unparliamentary language, which I will not read out, but the report is worth reading because it gives a sense of that type of daily experience.

It is right to draw attention to the issues around domestic violence. Although, as you rightly say, men are a minority of victims in domestic violence and women are the majority, it is still there. That is a much broader concept, however, than stuff that is motivated by hate or misogyny. Not all domestic violence is. It is a much broader concept, and, when men are attacked in that context, it is not necessarily and usually is not due to an ideology of hatred of men per se. That is what distinguishes it from this type of aggravated offence model. There is, however, a lot to discuss and get to the bottom of.

Mr Kingston: I have one last point. Often, when a man assaults a woman, it is bullying and taking advantage of what he perceives as his greater physical strength. Rightly, there is outrage about that, and it should be reflected in the sentencing. If sex and gender are included as a form of hostility, that might make it harder to prove, because it must be demonstrated that the offence of hostility was based on the victim being female. Whereas the vulnerability aggravator is easier to see, and that is how most people will view it. There is, rightly, greater outrage when an elderly or frail person is attacked because somebody has attacked that person because they knew or thought that they could dominate them. I understand the reluctance to see sex and gender as a vulnerability, but my concern is that it will make it harder to apply or prove.

Mr Holder: As things stand, there are already considerations in sentencing about the power dynamic and the vulnerability of all victims, and that will not fall away with the addition of a new aggravator. If you are looking for a misogyny aggravator and an additional sentence and the court is considering that, there is an additional evidential hurdle to reach. If that falls away and the person is charged with the basic offence, for want of a better term, those things can and will be taken into account. They will still be taken into account even with the addition of this, but the benefit is that, when the threshold is met, it sends out a strong signal, as per the purpose of hate crime legislation, about the unacceptability of misogyny and, obviously, of sectarianism and racism in other instances.

Ms Egan: This has been really useful. Misogyny aggravators have been discussed a lot by the Committee, but your evidence has clarified it most in my mind.

I am interested in hearing your views and insights on the transgender aggravator that has been raised with us by the Rainbow Project, which, I think, is a member of the Equality Coalition. What are your thoughts on introducing that?

Mr Holder: It is not a codified aggravator; it is more adding transgender identity as a protected characteristic. It is a completely separate issue, but we support it.

Ms Egan: OK. That is fine. Have you worked with the Rainbow Project? I know that you are on their —.

Ms McKeown: We just had a presentation from the Rainbow Project at the coalition meeting today.

Ms Egan: That is good. The Rainbow Project's evidence has been helpful and has given the Committee something to consider.

Those were all the questions I had.

Mr McGlone: Apologies for missing the early part of the presentation: I was called out to take a call.

On the misogyny aggravator, can you give any examples from Scotland or other jurisdictions of how it adds to the convictions and improves the situation for the victim?

Mr Holder: The model has been drafted by the Scottish working group and has not yet been implemented. It has been well thought through, but this would be an opportunity for this jurisdiction to get ahead on the issue because it has not yet been passed in Scotland, although that may happen in the current mandate. In the next six months, we have an opportunity to build it in.

Mr McGlone: Absolutely. I get that, but I am trying to get the evidence base that was used in Scotland or any other jurisdiction. If you do not have that, it is OK.

Mr Holder: It is a novel, codified solution, but you have the working group report that goes through the large amount of evidence on misogynistic crime and the reasons why this is the best legislative mechanism to deal with it. We have an opportunity to implement it first and then take stock of its success.

Mr McGlone: Thank you.

The Chairperson (Mr Frew): I have a wee question to ask on clause 36, "Aggravation by reason of vulnerability". At the bottom, clause 36(7) says:

which covers children, and

What do you think "any other reason" might be? That is an open question, and you might need time to consider it. If so, would you write to us? We would be much obliged.

The question I have is this: if someone were to add "psychological harm" to that clause, how would you read that in law? So:

psychological harm.

Mr Holder: I think that you can tell that this is the first time that we are looking at this.

The Chairperson (Mr Frew): It is OK if it is the first time. You can take it back.

Mr Holder: We will take you up on the offer to write to you on that point. We will be honest that we have not looked at that in any detail.

The Chairperson (Mr Frew): Someone who is a victim of psychological harm over and over again becomes vulnerable. Are we missing a trick by not having "psychological harm" in the definition of vulnerability? You have:

and the catch-all "for any other reason", but is "psychological harm" missing from that definition of vulnerability? If you could take that back and give me your thoughts, that would be great.

Mr Holder: It might be that someone who is subject to repeated harassment over time could end up in a situation where —.

The Chairperson (Mr Frew): Yes.

Mr Holder: OK. We will write to you.

The Chairperson (Mr Frew): I would be obliged if you could look at that and see what your assessment is. Thank you very much. That is all I have.

No other members have indicated, so thank you for your time. I really appreciate it. It was very interesting.

Ms McKeown: Thank you for giving us time to talk to you, and thank you, Committee members, for your time. Please do what we are telling you to do. [Laughter.]

We can change mindsets and the way that society operates; we really can. We can make it a better place.

Thank you very much. We will come back to you on that issue.

The Chairperson (Mr Frew): Thank you very much.