Scottish Government consultation on ending conversion practices in Scotland response
Do you support our approach to defining conversion practices which focuses on behaviour motivated by the intention to change or suppress a person’s sexual orientation or gender identity?
Yes
No
Don’t know
Please give the reason for your answer to Question 1.
SASW strongly believes that the term “conversion therapy” is misleading and inaccurate considering the harm involved. We support that the term “conversion practices” be used as an umbrella term to capture a multitude of harmful practices with the aim to change or supress and individual’s sexuality or gender identity. However, we recommend the term “conversion abuse” which covers all harmful practices and sends a clear message to everyone that any practices relating to conversion are harmful and unlawful. Conversion practices must be criminalised. We recognise that conversion practices come in many forms with varying acts which may include assault, rape, abduction and other already criminalised acts, however, many conversion practices do not currently fall under legislation, which these proposals aim to address. We support this.
Do you think that legislation should cover acts or courses of behaviour intended to ‘suppress’ another person’s sexual orientation or gender identity?
It should be covered
It should not be covered
Don’t know
Please give reasons for your answer to Question 3.
The social work profession believes in supporting and defending the right for individuals to express their sexuality and gender identity in a way that is authentic and consistent with the person they know themselves to be. Supressing or attempting to supress another’s sexuality or gender identity is abusive, it perpetrates stigma and shame, such practices that would supress another’s identity should be included in any legislative approach to end conversion practices.
Do you support or not support an approach which uses a package of both criminal and civil measures to address conversion practices in legislation?
Support
Do not support
Don’t know
Please give reasons for your answer to Question 5.
Criminalising abusive conversion practices gives a clear message that behaviour intended to harm or control others is unacceptable in civilised society. Criminalisation also allows a route to social justice for victims, which research indicates can support recovering and healing post trauma.
We also support the introduction of civil protection orders for those at risk from conversion practices, giving a civil route to protection consistent with the approach for other offences such as FGM and forced marriage.
What are your views on the proposal that the offence will address the provision of a service?
Support
Do not support
Don’t know
Please give reasons for your answer to Question 7.
Conversion practices can occur in a wide range of settings and contexts, formal and informal. We support the proposal that conversion practices offered in formal settings, with a degree of professionalism with or without a fee attached, should become a criminal offence. Conversion practices are abusive and harmful, and victims of such actions should be able to seek remedy through the criminal justice system.
What are your views on the proposal that the offence will address a coercive course of behaviour?
Support
Do not support
Don’t know
Please give reasons for your answer to Question 9.
While some conversion practices take the form of single or distinct episodes with significant impact, many members of the LGBTWIA+ community with lived experience of conversion practices report a pattern of coercive and controlling behaviour over a period of time.
Coercion can be difficult to identify and to evidence, however, the Domestic Abuse (Scotland) Act 2018 has brought a clear understanding of patterns of behaviour in intimate partner relationships which can be described as coercive and controlling. We welcome the intention to learn from this approach when denoting behaviours that might be considered coercive and controlling relating to conversion practices.
What are your views on the requirement that the conduct of the perpetrator must have caused the victim to suffer physical or psychological harm (including fear, alarm or distress)?
Agree
Do not agree
Don’t know
Please give reasons for your answer to Question 11.
We broadly support the requirement that the conduct of the perpetrator must have caused physical or psychological harm including fear or alarm. Principles of fear or alarm are well established in legislation within the Criminal Justice and Licensing (Scotland) Act 2010 in relation to stalking and threatening and abusive behaviour.
The inclusion of distress as a marker of harm, however, is more difficult to establish. In the context of family life, it is reasonable to consider that parents will at times place restrictions or sanctions on children and young people in the course of fulling their parental responsibilities that might cause distress. Whether distress reaches a threshold of causing harm is complex and may lead to subjective assessments based on the presentation of a child or young person at a particular moment in time.
We would also question who would make an assessment of distress reaching the threshold of causing harm. Social workers are very well equipped to make complex assessments taking account of wider context of a child or young person’s life however professional involvement in family life is often stressful and traumatic for families. Legislation relating to conversion practices should strike a balance in providing strong support for children and young people who identify as part of the LGBTQIA+ community while supporting parents to fulfil their parental responsibilities without fear of being criminalised.
Do you agree with the inclusion of a defence of reasonableness?
Agree
Do not agree
Don’t know
Please give reasons for your answer to Question 13.
The proposed legislation includes a wide range of activities which could be considered conversion practices.
We consider it essential to include a defence of reasonableness to ensure people are not criminalised when acting in the best interests of the person subject to behaviours which could be considered conversion practices. This might arise where a parent places restrictions on their child for their safety and protection, or where the parent considers their child may not understand the long term implications of a course of action. It may also relate to people living in culturally conservative communities where openly expressing their sexuality or gender identity may place them at risk of harm.
The defence of reasonableness gives space for consideration of the unique context, circumstances and motivations of the individual suspected of conversion practices.
Do you agree with the proposed penalties for the offence of engaging in conversion practices?
Agree
Do not agree
Don’t know
Please give reasons for your answer to Question 15.
While SASW cannot comment on the appropriateness of proposed penalties, we would support the principle of penalties for engaging in conversion practices being consistent with other areas of criminal law in Scotland.
Do you agree that there should be no defence of consent for conversion practices?
Yes
No
Don’t know
Please give reasons for your answer to Question 17.
For consent to be valid it has to be fully informed and freely given. The majority of conversion practices take place within religious and faith-based settings and in relationships where there is a perceived or actual imbalance of power. This can lead to people agreeing to activities that they would not otherwise consent to to gain support, care, approval or acceptance within a group or individual relationship, or to avoid judgement, exclusion or harm within the same. Consent which is coerced, manipulated or demanded is not consent.
Scots law already recognises the complexities of consent withinThe Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 which recognises grooming behaviours which compromise an individuals’ capacity to consent to sexual activity, even when they themselves believe they have consented. The law also considers issues of undue pressure or influence in relation to vulnerable adults and their capacity to consent. Given this, there is already a framework for understanding that consent does not change the perpetrators’ responsibilities in law to act in a way that does not cause harm. The proposal of no defence is consistent with this existing framework.
Do you have any other comments regarding the criminal offence as set out in Parts 8 and 9?
What are your views on it being a criminal offence to take a person out of Scotland for the purpose of subjecting them to conversion practices?
Support
Do not support
Don’t know
Please give your reasons for your answer to Question 20.
The principle of preventing people being removed from Scotland to be subjected to illegal practices is well established in law. This proposal is consistent with legislation already in place relating to FGM and forced marriage, which provides protection for people who might be removed from Scotland to places with no such protection.
What are your views on the proposed penalties for taking a person outside of Scotland for the purposes of conversion practices?
Support
Do not support
Don’t know
Please explain your answer to Question 22.
While SASW cannot comment on the appropriateness of proposed penalties, we would support the principle of penalties for taking a person outside of Scotland for the purposes of accessing conversion practices being consistent with other areas of criminal law in Scotland for example with forced marriage or FGM.
What are your views on the proposal that conversion practices should be an aggravating factor for existing offences?
Support
Do not support
Don’t know
Please explain your answer to Question 24.
Conversion practices can include activities which are already crime in Scottish law such as, but not limited to, physical and sexual assault, rape, abduction and forced marriage. We support the proposal to introduce conversion practices as an aggravation in existing offences. We understand this will enable prosecutors to make a case that an attempt to change or supress an individual’s sexual orientation or gender identity was a motivating factor in the commission of a crime and to consider this when sentencing. We support this.
Do you have any views on the steps we have taken to ensure the proposals are compatible with rights protected by the European Convention of Human Rights?
The ECHR enshrines the right to privacy, family life and religious expression in law. While the intention is not to criminalise day to day family life, Within the existing proposals, the exercising of parental responsibilities could be considered conversion practice whereby a parent imposes restrictions on their child and those restrictions cause distress.
We would recommend using the existing child protection framework and supporting legislation when considering whether an activity may be considered conversion practice, e.g. forcing a child to wear gendered clothing against their will may be considered emotional abuse, restricting premature sexual activity would not.
What are your views on the purposes of the proposed conversion practices protection order?
Support
Do not support
Don’t know
Please explain your answer to Question 28
In recognising the vulnerability of members of the LGBTQIA+ community, it should be considered that criminal law does not currently offer full protection from risk. The proposed protection orders are consistent with orders available to reduce the risk of domestic abuse, FMG and forced marriage in that they provide a civil route to protection in conjunction with criminal proceedings and where evidence is not sufficient for criminal conviction.
The availability of a protection order is an important measure for the safety of individuals where balance of probability is a more appropriate burden of proof than the criminal threshold of beyond reasonable doubt.
Do you agree or disagree with the proposals for who should be able to apply for a conversion practices civil order?
Agree
Do not agree
Don’t know
Please explain your answer to Question 29.
We agree that the proposals for persons/institutions who may apply for a conversion practices civil order is appropriate. We would seek clarity regarding the inclusion of the Local Authority and whether this specifically refers to social work services, in line with existing public protection duties, or other to services within the local authority.
Do you have any other comments regarding the civil order as set out in Parts 13 - 15?
Do you have any views on the potential impacts of the proposals in this consultation on equality by:
Age
Disability
Gender reassignment
Civil partnership
Pregnancy and maternity
Race
Religion and belief
Sex
Sexual orientation
We would give consideration to how this legislation might impact people with disabilities. Research shows that people with disabilities are often viewed as non-sexual whereby expression of sexuality is considered problematic and inappropriate. People with disabilities are often infantilised and excluded from learning, socialisation and relationships which would prepare them for a full and engaged consensual sexual relationship, with associated impact on their own views of their sexuality and gender identity.
There needs to be provision within the legislation which recognises the role of parents and carers to support and protect vulnerable children and adults, while also ensuring conversion practices are not disguised as care and protection. People with disabilities should be supported to express their sexuality and identity as they choose, with due consideration given to capacity and safety.
We would also consider the impact of this legislation on black and minority ethnic communities. Research shows members of the LGBTQIA+ community who are also part of the BAME community are more likely to be subjected to conversion practices, and also experience racism and prejudice when reporting crime. Proposals must ensure that there are no additional barriers to protection for members of the BAME community who also identify as LGBTQIA+, with anti-racism a key consideration.
Do you have any views on the potential impacts of the proposals in this consultation on children and young people, as set out in the UN Convention on the Rights of the Child?
Children and young people are considered vulnerable by virtue of their developing capacity and as such have a right to care and protection. We support the rights of children and young people to develop and express their sexuality and gender identity in a way consistent with their sense of self. We also recognise that children and young people undergo a process of growth and development and that exploring their gender identity, sexuality and relationships is an essential part of the process of human development. As such we support proposals that reinforce the rights of children to self-expression and identity.
Parental responsibilities provide a legislative framework for the support, protection and guidance of children and young people, with the understanding that parental guidance changes as children mature and develop. The proposals currently suggest that parents may be considered to undertake conversion practices if they place restrictions on their child which are thought to supress their child’s sexual or gender identity which cause the child distress. We would suggest the need for clarity which reflects principles of proportionality e.g. activity which restricts a child’s sexual expression aged 12 is very different to the same activity with an older teenager. The latter may be considered a conversion practice while the former may not.