‘Women’, wrote Germaine Greer in 1970, ‘have very little idea how much men hate them’. Fifty years later, it seems we have woken up. The problem of woman-hatred is now widely acknowledged and discussed; in Britain there’s growing pressure for misogyny to be legally recognised as a form of hate. Campaigners have presented this as a question of parity, saying that the law should ‘treat misogyny like racism or homophobia‘ (which are already covered, along with religious hatred, transphobia and hostility to people with disabilities). It’s an argument that has resonated with many feminists, and it’s now under serious consideration. Though the Scottish Parliament recently rejected a proposal to include women in new hate crime legislation, a working party has been set up to examine the issue further. Meanwhile in England and Wales, the Law Commission issued a consultation paper last year which did recommend that the law should be extended. Since the outcry that followed the murder of Sarah Everard this proposal has attracted more mainstream political support.
So, it looks as if change is coming; but will that be a step forward for women? On reflection I have my doubts, and in this post I’m going to try to explain them.
In England and Wales currently there isn’t a specific hate crime law, but rather a patchwork of provisions threaded through other laws. One key provision is in the Criminal Justice Act 2003, which says that if someone who committed a criminal offence ‘demonstrated, or was motivated by, hostility on the grounds of race, religion, sexual orientation, disability or transgender identity’, the court should treat that as an aggravating factor and consider whether to impose a harsher penalty. This also indirectly brings what is popularly known as ‘hate speech’ into the picture (though the term itself has no status in English law), in that the language someone used may be treated as evidence of hostile motivation. Other legal provisions target verbal behaviour more directly. The Public Order Act 1986 includes an offence of ‘stirring up hatred’, which will often be done by way of language (one recent case involved a series of anti-Muslim posts on Gab), and also one of using ‘threatening words and behaviour with intent to cause harassment and distress’.
The Law Commission has recommended that these provisions should be extended to cover hostility on the grounds of sex, or hostility to women (which of these options to prefer is one of the questions posed in the consultation). To reach that conclusion, it explains that it applied three tests:
- Demonstrable need: whether there is evidence that crimes against women are (a) prevalent and (b) linked to hostility and prejudice;
- Additional harm: whether women victims are more severely impacted by crimes which are motivated by hostility/prejudice, and whether these also cause harm to other members of the target group (‘secondary victims’);
- Suitability: whether an extension of the hate crime framework to crimes against women would be workable in practice and compatible with the rights of other groups.
The Commission concluded that the first two tests were met. Crimes which disproportionately target women (e.g. rape and sexual assault, domestic violence, forced marriage, FGM, street harassment, online abuse) are prevalent, rooted in prejudice, and have an impact on women in general. But some questions remain unresolved. One is the practical feasibility of extending the law, given the high number of crimes against women and the fact that the justice system is already overstretched. Another concerns the status of domestic violence/abuse, which some argue should be excluded because it isn’t motivated by hostility to women as a group; rather it arises within specific intimate relationships, which could be same-sex partnerships, or heterosexual ones where the abusive partner is the woman. The consultation paper does suggest that sex (more specifically, femaleness) should become ‘a protected characteristic for the purposes of hate crime law’, but it asks if there should be a ‘carve out’ for domestic violence.
This is one reason why some feminists are concerned about the Commission’s proposals. They fear the effect will be to create a new hierarchy of crimes against women, taking us back to the days when attacks carried out by strangers were seen as ‘worse’ than violence perpetrated by someone the victim knew. Feminists have also drawn attention to an even more basic problem, namely the failure of the criminal justice system to enforce the laws we already have. What good, they ask, is creating new offences, or giving the courts power to impose harsher penalties, when most of the crimes women currently report do not lead to a prosecution, let alone a conviction? And that’s not only because the system is under-resourced. Women are also denied justice because of longstanding biases, both in the system and in the surrounding culture. How can we trust institutions which are themselves riddled with misogyny to enforce new anti-misogyny laws effectively and fairly?
Campaigners for new legislation often argue that it will help to drive institutional and cultural change, by sending the message that ‘this is serious and will no longer be tolerated’. But in the case of crimes against women, this message often turns out to be no match for the prejudice it was meant to shift. For instance, this month the media reported on a school in Liverpool where girls had been told to wear shorts under their uniform skirts after several of them were ‘upskirted’ (i.e., boys took pictures of their underwear) on a transparent staircase in the sixth-form building. This story caught my eye because upskirting was recently the subject of a successful campaign to make it a criminal offence (it became one in 2019). The Liverpool boys, who were over 16, could in theory have been reported to the police. I’m not saying that would necessarily have been the right thing to do. I’m sympathetic to the argument that where possible we should try to educate young people rather than criminalising them. But it’s telling that this school did neither. Instead it chose to punish the girls, by imposing a dress-rule that would make them feel uncomfortable, undignified and as if they were the ones at fault.
Even if I had more faith in legislation as a remedy for social ills, I would still want to ask whether extending hate crime laws sends the right message about misogyny. My doubts on that score reflect my interest in language–in words and meanings and what might be called ‘discursive framing’. Treating misogyny ‘like racism and homophobia’ means slotting women into a pre-existing frame which was not originally designed for them. And that raises the question of how well the frame fits.
Categories have their prototypical members, the examples that spring to mind first when we encounter their generic label. Our prototype for the category ‘bird’, for instance, the kind of bird we’ll draw if we’re instructed simply to ‘draw a bird’, is something that looks like a robin or a sparrow, not an ostrich or a penguin. In the case of hate crime/hate speech the prototype is hatred of a racial or ethnic Other. This is where it began in the UK, with the outlawing of ‘incitement to racial hatred’ in the 1960s. Later religious hatred was added, and this was not a big stretch because it’s close to the prototype: often it’s as much about race/ethnicity as religious belief per se. The other types of hatred now covered by the law—homophobia, transphobia, hostility to disabled people—share some features with the prototype, in that they target minorities who are perceived as ‘different’, as outsiders. And there’s another thing these target groups have in common. Hatred of them is linked, historically and in our minds, to right-wing extremism. The prototypical (western) right-wing extremists, the Nazis, regarded Jews, homosexuals and disabled people as inferior and impure, and they did their best to exterminate them.
But this prototypical form of hate, the kind that motivates genocides and pogroms, that calls for the ‘repatriation’ of Black British people to ancestral homelands they have never set foot in or advocates the involuntary sterilisation of the ‘unfit’, is not what (most) misogyny is about. Though misogynists do see women as Other and lesser beings, who exist only in relation to men and for men’s benefit, few of them wish for a world in which women are not available to meet their emotional, domestic, sexual and reproductive needs. What they want is not to eliminate women, or to live entirely apart from them, but to exploit, dominate and control them. Misogyny, in short (as the philosopher Kate Manne has argued), is not a generalised hatred of women, but rather the punishment of women who refuse to stay in their subordinate place or to meet what men regard as their obligations. The extreme right has no monopoly on that kind of punishment, nor on the belief system which justifies it. Some forms of misogyny are so common and unremarkable, it hardly makes sense to label them ‘extreme’.
Because misogyny is so different from the prototype which hate crime laws were designed for, it’s difficult to just ‘add women and stir’. The Law Commission’s question about whether there should be a ‘carve out’ for domestic violence is one illustration of this difficulty: violence against an intimate partner is commonly understood as the consequence not of hate, but of its opposite, love, ‘gone wrong’. Murderers and family annihilators are said to have killed their ex-partners and sometimes their children because they couldn’t bear the pain of separation, rejection or ‘betrayal’.
I would have no hesitation in calling this behaviour misogyny, but I think what’s behind it is less a hatred of women than a sense of entitlement in relation to women. I would apply the same reasoning to, for instance, child abuse and elder abuse: what motivates these forms of violence is surely not a generalised hatred of children or old people, but rather a feeling of entitlement to use and abuse them, to exploit their relative powerlessness for your own gratification, or to punish them for making what you see as unreasonable demands. We should be able to recognise the seriousness of these forms of abuse, and to punish them as they deserve, without having to put them into a frame that doesn’t fit.
The notion of misogynist hate speech raises similar questions. According to the philosopher Alexander Brown, a typical legal definition of hate speech looks something like this:
(1) Speech [or other expressive conduct] (2) concerning one or more members of a protected group or class (3) that involves [expresses, incites, justifies] feelings of hatred toward group members.
Brown argues that this is too narrow, and that a better definition would reflect the way the term ‘hate speech’ is used/interpreted in ordinary language—which, as he points out, does not always treat ‘feelings of hatred’ as central. He goes on to offer a list of the types of speech (or writing) which in his view would ‘intuitively fall under the ordinary concept [of] hate speech’:
- Slurs, epithets or insults vilifying members of historically victimized groups (e.g. the N-word, ‘dirty Jew/faggot’)
- Forms of speech that assert or imply a group’s inferior or sub-human status (e.g. ‘these people [asylum seekers] are cockroaches’)
- Group defamation or negative stereotyping: the false/overgeneralized attribution of qualities/behaviour to a group (e.g. the blood libel; ‘homosexuals abuse children’)
- Incitement: advocating, justifying or glorifying hatred, violence or discrimination against a group (e.g. ‘kill all Xs’; symbols used to intimidate, e.g. burning crosses/nooses/swastikas)
Although this list makes no explicit reference to women–all the examples relate to race/ethnicity, religion and sexual orientation–it’s not hard to see how the framework might be applied to them. Clearly, there are slurs vilifying women (‘bitch’, ‘cunt’, ‘whore’); assertions of female inferiority and subhumanity are staples of online discussion among incels, MGTOWs et al.; negative stereotyping of women is commonplace; and under the heading of incitement/intimidation we could include the threats with which women are bombarded online, often expressed in the linguistic register to which Emma Jane has given the label ‘rapeglish’. Maybe we could even consider flashing, or sending unsolicited dick pics, as the misogynist analogue of the noose and the swastika. The problem with Brown’s taxonomy, then, isn’t that women can’t be slotted in at all. The problem is how much that leaves out.
One thing it leaves out is a feature of many kinds of misogynist discourse: the use of, specifically, sexualised speech to enact power and domination over women. A great deal of what women experience as intrusive, degrading or intimidating male behaviour is couched not in the language of hate, but ostensibly in the language of desire or sexual interest. Everyday street remarks like ‘nice tits’, or ‘give us a smile’, certainly don’t ‘intuitively fall under the ordinary concept of hate speech’: on the surface they seem appreciative rather than hostile, and men are quick to exploit that if women object (‘what’s the matter, can’t you take a compliment?’) But these comments are not innocent or harmless. As well as underlining women’s status as sexual objects, they are pointed reminders that women in public space are under constant male surveillance and must conduct themselves accordingly.
Other kinds of misogynist speech, like ‘rapeglish’, are closer to the ‘ordinary concept of hate speech’ because they’re explicitly violent and threatening. But even rapeglish tends not to be put in the same conceptual box as, say, racist or anti-semitic rhetoric, because its graphic sexual content prompts people to read it as a display of individual pathology rather than the expression of a hateful ideology. The same is true of indecent exposure, which is viewed more as a compulsion afflicting some (inadequate or disturbed) men than as an intentional form of expressive behaviour which is meant to humiliate and intimidate. Once again, the sexualised nature of the behaviour obscures the political purpose it serves. The philosopher Rae Langton has made a similar point about pornography, arguing that its sexual content tends to disguise its ‘status…as propaganda’. ‘For racial hate speech’, she writes, ‘hierarchy and subordination look like what they are… For pornography [they] look like what they are not–namely, the natural sex difference’.
Our belief in ‘the natural sex difference’ also makes it possible for certain non-pornographic messages that might otherwise be judged as hate speech to escape that categorisation. Consider the greeting card below, which was photographed in a bookshop: the fact that it was openly on display suggests that most people wouldn’t consider it hateful, even if some might find it tasteless.
Why not, though? Because it’s saying you can’t ‘shoot [women] and bury them in the garden’ rather than advocating that course of action? Because it’s clearly meant to be a joke? Maybe; but if the word on the card were not ‘women’ but, say, ‘Jews’ or ‘gays’, neither of those considerations would make it acceptable. Animosity between men and women (aka the eternal ‘battle of the sexes’) is understood to lie beyond the realm of politics and even culture: it’s seen as natural, universal and—crucially—reciprocal (just like the desire which draws the warring parties together). That’s why the one word you could replace ‘women’ with and still have an acceptable product is ‘men’—though you’d be glossing over the fact that in reality women very rarely kill men, whereas (in Britain) men kill women at a rate of 2-3 a week.
I’m not using these examples to argue that more kinds of speech should be legally defined as hate speech. I’m suggesting that ‘hate’ may not be the right frame for understanding or addressing the issue of misogyny. Feminists who favour that frame argue that equality requires inclusion: the exclusion of woman-hatred from existing provisions sends the message that women are less important than other groups, and that misogyny is less serious than other hatreds. But while I agree that misogyny is a real and serious problem, I don’t think that means it is, or should be treated, exactly like racism or homophobia. To me, taking it seriously means considering it on its own terms. Women need to be able to frame a response that begins from our experiences, our needs, and our ideas about what would truly make a difference.