The 'Newlove Amendment' in the Governments Police Crime, Courts and Sentencing Bill is hailed as making misogyny a hate crime, but is that really the case? Joan Smith discusses what the real consequences of this becoming law are, and how in fact, it could harmful to women and used against them.

Joan Smith is a journalist, novelist, Human Rights advocate and author of books including Misogynies and Home Grown: How Domestic Violence Turns Men Into Terrorists. Joan was co-chair of the Mayor of London’s Violence Against Women and Girls Panel until last year, and a former Chair of the English PEN Writers in Prison Committee. She chaired our panel on the Domestic Abuse Act at FiLiA 2021 .

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Transcript:

Sally Jackson in conversation with Joan Smith

SJ – I am joined today by Joan Smith, columnist, activist, all-round violence against women and girls warrior, to talk about something that is in the news so much recently: misogyny as a hate crime. We asked to have a chat with you because we did talk about this briefly at conference but things have happened since then and we thought we should go into more detail. I think there is a little confusion about what would happen if misogyny did become a hate crime. Can we start with the very basics? What is the difference between something becoming a hate crime on top of what other offences are available? What is a hate crime?

JS – You’re right, there is a lot of confusion about this. If you say you are opposed to misogyny becoming a hate crime, people often behave as though you are saying you hate motherhood and apple pie or something like that. I have two problems. First of all, I have a problem with the hate crimes category and specifically about misogyny becoming a hate crime.

Hate crimes at the moment do not include misogyny. So, if a crime is classed as a hate crime, it attracts an aggravated sentence i.e. the sentence becomes heavier because the crime is perceived by the victim as being motivated by hostility to one of the protected characteristics. At the moment, there are five: disability, sexual orientation and so on. Sex was never included and, on the face of it, it doesn’t make any sense that sex isn’t included because we know that misogyny is rife and affects half the population. The people who are proposing, mostly for good reasons, that misogyny should become a hate crime, are saying it is illogical to leave it out. There is some force in that argument but it does not deal with the objections which are firstly, that making something a crime doesn’t actually stop it and there are better ways of dealing with misogyny and, secondly, that there are unintended consequences.

SJ – This debate about whether misogyny should be a hate crime is nothing new, it has been going on for quite some time now.

JS – It has gone on for a very long time. It came out of the Macpherson Inquiry where people were rightly concerned that some crimes were motivated by racism, like Stephen Lawrence’s horrible murder. Hate crime developed from that, the idea that if someone perceives that a crime is motivated by hate against one of the protected characteristics that it should be treated as such. You immediately get into some difficulty because it is defined as a crime motivated by hostility towards one of the protected characteristics but how do you define hostility? If you actually look at the Crown Prosecution Service guidance on this, it says there is no clear definition of hostility so it lists a lot of things that might constitute hostility. I’m afraid one of them is unfriendliness and another is resentment or spite. I’m sure lots of people exhibit those characteristics or behaviour on many occasions. But should it lead to a criminal prosecution and possibly even a prison sentence? That’s one problem with it.

The fact that this is based on perception is unusual in law because you don’t usually take someone’s word for the fact. And actually that person, I’m afraid, might not be genuinely motivated by the feeling that might have been discriminated against. They could be motivated by malice, they could be narcissistic and deem almost anything to be a hate crime. I think there are dangers with hate crime legislation anyway but now the idea to extend to include misogyny brings in all kinds of problems.

Let’s be clear, the amendment we are talking about which was brought by Baroness Newlove, a crossbench peer in the House of Lords, and was debated last week, people talk about it as making misogyny a hate crime but that is not what the amendment says. The amendment says hostility on the basis of sex and/or gender so it doesn’t specifically include misogyny, it actually includes misandry as well. So that would allow men who feel peeved about something a feminist has tweeted online to complain to the police that it is a hate crime. We have to be clear that this isn’t just protecting women. But also, the fact that something is enshrined in law doesn’t mean that the law will be enforced. My fear is that this one will be because the police quite like hate crime. They have a very high conviction rate of 85 or 90 per cent.

What bothers me is why people aren’t making a fuss about enforcing the laws we already have. Rape is against the law in this country and always has been for many centuries. Sexual assault is a criminal offence. Threatening to kill is a criminal offence. A lot of these things are not actually enforced. I think the latest figures are something like 65,000 rapes are reported to the police in England and Wales in the latest period we know about and that resulted in, off the top of my head, no more than 1500 convictions or guilty pleas. So the vast majority of women who report a rape will not see their attacker convicted and probably not see their attacker prosecuted either. We know that vastly more rapes happen than are reported to the police. If you say, for example, that the 65,000 figure represents a quarter of the rapes that actually happen, which is reasonable going by the women who report to Rape Crisis Centres and hotlines and so on, then we are actually talking about a quarter of a million rapes in England and Wales each year and about 1200/1500 convictions. This is what we ought to be concentrating on; the laws that are not being enforced. There are laws that should protect women and they are not being enforced. I fear that this is perceived as an easy win: “Isn’t misogyny awful? Let’s do something about it!” “Okay, let’s make it a hate crime”. And the question is, what then? Is this the most effective way we have of protecting women? I don’t think it is.

SJ – It seems to me that, when you see it as a newspaper headline or a Chief Constable saying that they are taking violence against women and girls seriously and support making misogyny a hate crime, it is a good headline, a good click bait and virtue signalling that they are taking it importantly. One of the things that comes up is discussion around the Nottinghamshire pilot and that being shown to be a huge success. The reality is that we haven’t seen murders and rapes diminish in that area. We haven’t seen the very serious crimes that women are unfortunately subjected to on a daily basis being affected by some crimes being labelled and targeted as misogynist.

JS – If you look at what has happened in London since the rape and murder of Sarah Everard, she was attacked and abducted at the beginning of March last year, by the end of that month the reported rapes in London had reached at ten year high. We had gone from about 640 rapes reported each month to about 800. We know that the actual rape prosecution and conviction rate is down to about 1.4%. I see domestic violence going down the same route as rape. You get a huge push from Ministers and senior police officers saying we really care about this, women must come forward, they must trust us, they must tell us about these crimes. That has been very successful. There are many more rapes being reported in this country than there were even 20 years ago. Something similar is happening with domestic violence and that prosecution and conviction rate is going down as well. So women are being told to trust the police and use existing laws and it is not happening. They are being let down on a massive scale. I would much rather concentrate on forcing the police and Crown Prosecution Service to make sure that men are prosecuted for these very serious crimes rather than something as nebulous as misogyny as a hate crime.

SJ – There is a key phrase that you said there that women are being told to trust the police. Just saying those words at the moment, with everything we became aware of last year although nothing new, some reports have come to light. You mentioned Sarah Everard and Wayne Couzens finally being held to account for that. I think it was about 300 police officers who were currently under investigation for some kind of domestic or sexual violence offence. Recently we heard the awful behaviour that a woman was subjected to because she queried a Stop and Search and tried to support a young Black man who was being Stop and Searched by the police. It seems to me that we are being asked to trust people that we are seeing day on day different reports about the misogynist attitudes and actions of people within that very force.

JS – That is absolutely right. I couldn’t agree with you more. Last year, in the summer, I wrote a piece calling for a Macpherson style inquiry into misogyny in the police. I know a lot about the Met because I used to chair the Mayor of London’s Violence Against Women and Girls Board but there are examples up and down the country. I think that there is a huge problem of a misogynist culture in police forces but also a failure to tackle it.

We know that predatory men are attracted to jobs that give them uniform, status and power over people. It is going to happen in the armed forces, it is going to happen in the police. There really needs to be a clear mechanism for dealing with that so that the women who worked with Wayne Couzens, long before he attacked Sarah Everard, knew who they could complain to and knew that it would be dealt with. Some former police officers, some women have said that they were afraid to report misogynist behaviour by their colleagues because they were afraid that if they found themselves alone in a difficult situation, their colleagues would not come to their aid. There absolutely has to be mandatory reporting in the police of misogynist behaviour. If someone finds out their colleagues are in a misogynist WhatsApp group, for example, sharing pornography and things like that, there should be a legal obligation that should be reported and disciplinary action should be taken. There was something like 600 Metropolitan Police employees, including serving officers, had complaints against them up to and including rape, in a period of about five years and very few were dealt with. Women in relationships with cops, who complain about domestic violence, say they are often investigated by friends of their partner. The idea that we would put an organisation like the police, in its present incarnation, in charge of deciding what is a misogynist hate crime is actually bizarre.

What we need is an inquiry into misogyny in the police. I think that is urgent. Last summer I asked the Chief Executive of the Mayor’s Office for Policing and Crime and the Deputy Mayor for Policing and Crime if they would support me in calling for that inquiry and they did not get back to me. I think that is urgent.

Look at what happened after the terrible murders of Bibaa Henry and Nicole Smallman. We have got two cops serving prison sentences for taking pictures and sharing them in a WhatsApp group when they were guarding the perimeter of the murder scene. These are very shocking things for the police to be answering for. Last week, I think it was, there was a former Inspector at Scotland Yard who was convicted for voyeurism, for taking pictures of young women, models and so on. This is happening too often to use that argument of one rotten apple. We are way beyond that and it has to be addressed before asking these forces to police other people’s misogyny when they don’t address their own.

SJ – Absolutely. Thinking of how difficult it would be, speaking for myself as a white woman, to put trust in the police force but then also thinking of the added discrimination faced by our Black, that we know our sisters with disabilities face, that we know our lesbian sisters face, and are even more vulnerable to the power dynamics that play out in that type of relationship and yet are perhaps most in need of that support. How would you put your trust in an organisation where we are not just aware of the bad behaviour but also the cover up of that bad behaviour so that it is not being addressed in a systemic way?

JS – It does trouble me when what we are seeing is a complete failure of the criminal justice system both in terms of investigating serious crimes against women and prosecuting the perpetrators and these allegations of serious bad behaviour within the force, that we are actually talking about making misogyny a hate crime as if that is going to be the answer. To me that is just a sticking plaster. It sounds good and gets good headlines.

There is one more thing that we have to look at, which is that the amendment as it stands says sex and/or gender. So somebody could claim that they were the victim of a hate crime because of their gender identity. That is really difficult because sex is observable. Gender identity isn’t. I don’t know what someone’s gender identity is. It creates the Orwellian situation where a woman might find herself being accused of a hate crime by a man who identifies as a woman because she does not agree that human beings can change sex. Some of the supporters of this amendment are very clear that it is intended to include transwomen i.e. trans identified males. I am absolutely clear on this. I have been writing about misogyny since 1989. I know what misogyny is. It is hatred and fear of women. It is not hated and fear of men who believe they are women. If they want to believe that, fine. But if it encroaches on the rights of natal women then that is a sticking point for me. I think people would be astounded if they understood that this is where this amendment might take us. I don’t think people realise. A lot of those who want misogyny to become a hate crime want it to include transwomen who are still, in terms of sex, male.

SJ – You literally wrote the book on misogyny. I am speaking to the expert here. I know self-ID has not come in by law but we are seeing informally self-ID being accepted in so many different areas. We also have people who are very visibly male looking who may identify as female. If this law goes through, they could then claim that if somebody suggested that they were not female that it was a hate crime, that it was misogyny.

JS – Absolutely. As we said at the beginning of this discussion, hostility is defined so broadly by the Crown Prosecution Service. If unfriendliness or resentment or something like that is all you have to show, it would be far too easy for a man whose gender identity said he was a woman to accuse a natal woman of misogyny if this amendment goes ahead. It is a huge risk for women. It is a risk in two senses. It diverts attention and resources from the failure of the criminal justice system and that is what I want to have addressed. I want the police to have to answer for perpetrators in their ranks. I want them to do a much better job of investigating rape. I want the Crown Prosecution Service to bring many more prosecutions. All of that takes resources and time. Whereas hate crime is a relatively simple crime. There is a very high conviction rate. So, in a way the police quite like hate crime for that reason. The second risk is to women who might face malicious accusations of misogyny towards men who say that they are women. I think the word Orwellian is overused but I think it is the right word for that situation. Men cannot be victims of misogyny. Misogyny is a crime specifically against women. 

SJ – We see a fair bit of police attention being targeted against women who are being very clear that they support women’s sex-based rights, whether by banners, or meetings, or stickers and police investigating what you have written on Twitter. Presumably, if that was felt to be offensive by someone that you were advocating for women’s sex-based rights, could that be considered misogyny? It sounds crazy.

JS – It sounds crazy but that is the route we are going down. I wish people who were supporting the amendment would think about where it might take us. I don’t think it helps things women at all. I think it brings a lot of risks for women and I don’t think people fully understand that.

Why would I oppose making misogyny a hate crime? Surely it’s a good thing? Superficially, it sounds attractive, it sounds like it is fair because there are other hate crimes but I think it is misconceived. People don’t fully understand it and it could take us down the route of a woman who advocates for sex-based rights, for example that a woman’s refuge should not have to admit male-bodied people, that is a hate crime. That is where we are going if this amendment goes ahead.

SJ – At FiLiA, we are aware of that because a session around becoming an activist for misogyny was run by Stella Creasy MP, to learn about it and how they could advocate. We applied for a place and we were refused! So are Women’s Rights charities not allowed to learn about misogyny because it was deemed to be inappropriate?

JS – I had a Twitter exchange with Ms Stella Creasy and she was absolutely clear that transwomen would be covered by this law and transwomen can be victims of  misogyny. I just don’t agree with that. I don’t think human beings can change sex. I think people can live the lives they want to until it begins to encroach on other people’s fundamental rights and that is what we have got here. It is just too dangerous.

SJ – I would like to pick up something you mentioned earlier. It is an area of the debate that doesn’t get heard so often. The issue that it is not misogyny that is the hate crime but that it is something that is something around your sex or gender that has been written in this proposed legislation so this would include misandry. Thinking about the men’s rights movement, there is a huge opportunity for women to be negatively affected by being falsely accused of misandry when what they are doing is standing up for their own rights.

JS – I think that is another huge danger. I am glad you have highlighted that. As a shorthand this has been talked about as making misogyny a hate crime but it is actually making hatred on the basis of sex a hate crime and that does include men. We know there is an imbalance in terms of misogyny and misandry. A few years ago, people didn’t know what misandry was. Men have so much power that women don’t have, in physical terms and in other ways. The fact that there is still so much discrimination against women so misogyny will be much more prevalent and damaging than misandry. You’re right, I think this will be a gift to men’s rights activists. People think they are empowering women by supporting the Newlove amendment. They could actually be supporting men’s rights activists and the most extreme proponents of gender ideology who will use a law that is proposed to help women against us.

SJ – That is the thing about legislation. It is a blunt instrument and you have to be careful about the unintended consequences of any change. I’m hopeful that when we first started talking about misogyny as a hate crime that it was with a good intent to try to protect women. We know that violence against women is steeped in the culture of misogyny. It is one end of the continuum. One thing we are struggling with is not that misogyny isn’t linked to violence against women but that this legislation is not going to achieve what some are hoping it would achieve.

JS – Exactly. I don’t think that it’s going to reduce misogyny and I don’t think it is going to make the criminal justice system deal with misogyny within the police force or its failure to protect women. It may empower completely the wrong people and make women’s lives much more difficult. I think it is mostly well-intentioned but it hasn’t been thought through.

SJ – So what can we do about it? We have just had the vote in the Lords where the Government was defeated on several aspects of the Police and Crime Bill which you probably think is a good thing around the protest aspects that are in the Bill but it did agree with misogyny becoming a hate crime. So, what happens next and is there still time for us to do something about it and, if so, what can we do?

JS – There absolutely is. What happens now is that the Policing and Crime Bill goes back to the House of Commons. I agree that some of the Policing and Crime Bill is terrible and I would support some of the defeats in the Lords. But the Newlove amendment will be included in the Bill as it goes back to the Commons. There is a lot of organising going on. The Fawcett Society for example is calling on women to write their MPs asking them to support the Newlove amendment to make misogyny a hate crime. I think we need to ask women to write their MPs saying the opposite. This might look superficially attractive but it is actually a Trojan Horse and it will have all sorts of unintended consequences. It won’t protect women from the everyday violence of street harassment and all of those things that women face, including rape and murder. So it would be really good if women were able to write to their MPs saying this looks like a good idea but it is actually not, so please, please, please vote against it.

SJ – It is interesting because the Law Commission is not famous for being radical. They looked into this in a detailed way, whether sex, or sex or gender, should become a hate crime. They came back and said “we know this will not be popular but this is not good law, this is not the way to go forward”.

JS – That’s right. Sometimes, something being popular doesn’t make it right. I’m not sure when this goes back to the House of Commons. We do have an opportunity here. MPs do listen so if women write to their MP and say I am absolutely in favour of women’s sex-based rights and very concerned about the levels of violence against women but the Newlove amendment is not the way to deal with this. It will have unintended consequences and it may put women at risk of malicious prosecutions while not dealing with the overwhelming problem which is the failure to address rape. We have lots of existing laws that should be used to protect women. They are not being used. That is what we need, not supporting an amendment that makes everyone feel good.

SJ – We have said what should not happen. What can we push for to improve prosecution rates? It is kind of Catch 22 where, if there is no trust in the police, women are less likely to report or may say part of what happened but do not trust the police enough to say “yes, I had taken some drugs beforehand”. Then when that is found out, the police accuse them of not telling the whole story. If there is no trust, how do we increase prosecutions? What do we do to build the trust so that women do feel they can come forward and stay with the criminal justice system? Is it time to start again, to rip it up and say this system does not work?

JS – Women do come forward but what then happens is they drop out of the process because it is so elongated. It take so long for the investigation, then the file has to go to the Crown Prosecution Service for a decision. Women end up feeling like they are on trial. Their trust is undermined by the actual system. There are so many things that would help. First of all, there was a period when the Metropolitan Police were saying if a woman comes forward to say that she had been raped, their initial response was to believe her. That does not mean that you would abandon the investigation process. It simply means, that you treat a rape report the same as somebody reporting a burglary or that a car is stolen. You don’t go into it with scepticism. When Cressida Dick became the Metropolitan Police Commissioner in 2016, she reversed that. The police have to be clear that when a woman reports rape, they will take that at face value, they will conduct a proper investigation and they will concentrate on the alleged perpetrator and not the woman. All this stuff about taking phones and getting women’s school reports; all of that focus should be on the perpetrator and not the woman. Also, the woman needs support. There should be legal advice available to the victim and they should have the support of an Independent Adviser who can actually update them on where the prosecution has got to. All of this takes resources and costs money. But how much has been wasted in pure monetary terms by the number of investigations that start, it drags on for months, the woman can’t face it and so she pulls out. Victim attrition is one of the reasons that rape cases fail. It’s because victims aren’t believed, they aren’t supported, and the longer a case goes on, the more opportunity there is for interference with justice, particularly in a case where the woman knew the perpetrator beforehand. She can be put under pressure by him, his friends, his relatives and so on. There is every reason to argue that rape convictions should be a priority for the police, they should get all the resources they need, they should be relatively swift and they should focus on the perpetrator. I think we would see a very different picture.

SJ – In times when resources are not plentiful, surely we should be making best use of the resources we do have. I wonder how much money is being used to promote misogyny as a hate crime that could actually be put directly into the criminal justice system for schemes around supporting women, believing women.

JS – Yes, when resources are so stretched, if a police officer is investigating a hate crime, that is one less officer available to investigate other crimes. A lot of police officers quite like it because it is a relatively uncomplicated investigation and there is a very high conviction rate compared to something like rape or domestic violence. It is a question of priorities and I think that sexual and domestic violence should be the number one priority for police forces in this country but it never has been. That is what you get, piecemeal investigations, key witnesses not interviewed or the woman feeling like she is not supported and not believed and not able to carry on. It should be at the top of the police agenda, particularly when resources are so stretched.

SJ – Is there any way that a police officer with a history of domestic or sexual violence can work on those cases and be effective?

JS – The answer is obvious; no. That is something that hasn’t been taken into account in terms of when women are thinking about whether to report rape or domestic violence. The fear that the male detective who is assigned to the case might actually have this history and they don’t know about it. Women don’t have trust because we all know that the question of predators in the force has not been dealt with.

SJ – That has to be a priority for the police, to investigate who it is, when you ring 999 and you need help, that are turning up to women in distress.

JS – Absolutely, and also there has to be support within the force for officers who do report misbehaviour because some do; men and women. They fear the impact on their careers apart from anything else, and being isolated by colleagues who are angry with them. I don’t think there is a proper system for reporting misbehaviour within the force and that is an urgent necessity.

SJ – I think we are coming to the end of this discussion. It seems to me what we are asking for is some real action around misogyny and not some window dressing which seems to be what this legislation might provide at best and, at worst, be quite dangerous.

JS – Yes, I think there is a storm of good feelings being created around this. As though, if only this amendment can be passed then everyone will feel that they have done something for women. I don’t think that is the case at all. I think it will make very little difference in terms of positive outcomes and it has some very big risks attached for women. I know it is harder to tackle the problems within the criminal justice system. Women are half the population of this country. One of the first jobs of the state is to protect its own citizens and it is failing women. That is what we need to tackle rather than doing something that after the vote will make a lot of people feel very good about themselves but won’t make much difference.

SJ – As always Joan, it’s an absolute pleasure talking to you. Thank you so much for giving us your time, we really appreciate it. If you want to find out more about misogyny and/or domestic abuse, there are two excellent books that we can recommend and we will provide links.