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Hostility to Sex or Gender: a new aggravating factor for sentencing?


This week the House of Lords voted in favour of an amendment to the Police, Crime, Sentencing and Courts Bill, which is currently working its way through Parliament. The amendment, clause 73, would make hostility or prejudice towards sex or gender an aggravating factor when determining sentence.


The Police, Crime, Sentencing and Courts Bill is, in many respects, a troubling piece of legislation. But this addition by the House of Lords is a welcome improvement to a flawed piece of legislation. It closes an otherwise unjustifiable gap in the law of sentencing.


To understand this gap, it is necessary to first explain how sentencing works under the Sentencing Code (implemented by the Sentencing Act 2020). The judge reaches the final sentence by way of a series of steps. The first step involves reaching a provisional sentence based on factors such as the culpability of the offender and the harm to the victim.


The second step is where this amendment would come into play. At the second step, the judge is required to consider the ‘seriousness’ of the offence. To do this, the judge must consider aggravating and mitigating factors. One aggravating factor to be considered by the judge is hostility to one of the characteristics listed in section 66 of the Sentencing Act 2020. An offence aggravated by hostility to one or more of these characteristics is to be treated as a more serious crime for the purpose of sentencing.


The types of hostility listed in section 66 are: racial hostility; religious hostility; hostility related to disability; hostility related to sexual orientation; and/or hostility related to transgender identity.


This policy of treating offences aggravated by hostility reflects the state’s interest in protecting individuals who possess characteristics that have historically been victimised. It is a manifestation of the modern democratic values of the country.


The absence of sex and gender from that list is unjustifiable and, bluntly, bizarre. Of course, the amendment would also make crimes aggravated by hostility to men aggravated offences for the purpose of sentencing. This is understandable, both from the perspective of making the legislation flexible but conceptually clear, as well as for equality purposes. But the practical, everyday application of this amendment will be in tackling crimes motivated by misogyny.


Society appears to be beginning to wake up to the issue of endemic misogyny. The high-profile murders of Sarah Everard and Sabina Nessa put the issue firmly at the centre of public discourse. Society is beginning to have a more serious conversation about the chronic issue of women’s safety and the feeling of being unsafe, from road-side harassment to spiking and injecting ‘date rape’ drugs, to physical violence and sexual assault.


None of this is to say that the criminal justice system, as it is currently constituted, is fit for dealing with offenders. Prison is too often the answer, and our prisons are overcrowded as a result. We need a sensible conversation about criminal justice policy in this country, one that moves away from tabloid sensationalism about offenders. But treating offences as more serious based on hostility to certain characteristics is not inconsistent with that position. It means society deems such conduct more repugnant for the fact of hostility and/or prejudice. If we are to have a policy of treating offences as more serious based on hostility to certain characteristics, it is only right that sex and gender are also included in the list of characteristics protected by the Sentencing Act 2020.

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