Submission in response to Te Aka Matua o te Ture | The Law Commission Hate Crime Consultation Paper

Thank you for the opportunity to make a written submission on the Law Commission Hate Crime Consultation Paper along with the opportunity to dialogue directly with the Women’s Rights Party on 11 March.

The Women’s Rights Party is a registered political party focused on issues that directly impact women, girls, and children. We advocate for women’s sex-based rights, so that these rights are respected and extended, and not eroded.

The Women’s Rights Party contested the 2023 General Election with a List of 12 exceptional women from all walks of life across New Zealand raising issues that included women’s sex-based rights, women’s healthcare and wellbeing, our children’s education, and the irreversible harm being done to our young people experiencing gender distress through medical interventions.

Many Women’s Rights Party members have been instrumental in advocating for women’s sex-based rights since the 1970s and 1980s within the women’s movement, gay rights movement, and their unions.

A number of members contributed to the consultation and written submission on the issue of so-called “hate crimes”. We reject use of the word “hate” which is emotionally loaded, and note that in other jurisdictions the term used to describe crimes motivated by hostility towards a particular group is referred to as “bias crime” in the US, or crimes motivated by “malice and ill-will” in Scotland. In our view, neither of these terms captures the misogyny that lies behind most sex-based crimes. Our preferential language would be crimes motivated by “malice and/or prejudice” or “hostility”.

We have incorporated the policies of the Women’s Rights Party which reaffirm women’s and girls’ sex-based rights, and challenge the discrimination women are currently experiencing from the replacement of the category of “sex” with that of “gender” in our laws and policies. “Gender” is not interchangeable with “sex”. Gender is an imprecise concept that refers to sex-based stereotypes and social expectations; i.e. what is considered feminine and masculine.

Unlike biological sex, such stereotypes and social norms are not enduring – they change over time and vary within different cultural contexts. “Gender identity” refers to the identification with, and expression of these stereotypes.”¹

The Women’s Rights Party has been asked to comment in particular on the following clauses as to whether “sex” should be included as a specific “hate crime” or as an aggravating factor in the Sentencing Act section 9(1)(h). We address questions raised in the Law Commission Consultation Paper in clauses 3.51 to 3.58, 5.46 to 5.47, and 7.34. In addition, we address wider issues.

We do not support specific “hate crimes” to be included in the Crimes Act. Our preference is to stay with the status quo, where the law treats hostility as an aggravating factor in sentencing. Our instincts tell us that if we have new “hate crime” legislation, it will be used against sex-realist people, and it will not be used to help women who are victims of misogyny.

Misogynistic behaviour, harassment and abuse significantly constrain the choices and freedom of women and girls, while violating their human rights. These types of behaviour, along with all other forms of violence against women and girls (VAWG), continue to occur at endemic levels in New Zealand.

Instead of so-called “hate crimes” we prefer standalone, sex-based laws with higher penalties as is the case with sexual assault and rape. We have specific crimes in relation to family violence, including higher penalties for assault in a family relationship.

In addition, non-fatal strangulation and suffocation is now a crime attracting up to seven years in prison. The proposed Bill will add stalking and harassment to our tools to combat violence against women. Banning the defence of “rough sex” in murder trials is another example of a specific sex-based provision advocated by the Women’s Rights Party.

Engender, a Scottish feminist and advocacy group, has worked alongside other Scottish women’s organisations, to support the need for a separate approach to misogyny within criminal law, rather than including sex-based violence against women in the model of hate crime². The Scottish hate crime model aims to provide protection of women who experience crimes motivated by hatred towards them because of their membership of a minority group such as lesbians, women of colour, and women with a disability, but not specifically because they are women.

The Scottish Misogyny Report makes clear that to address misogyny, there is a need for “a suite of solutions; legislation, public awareness raising, and education to provide the backbone for efforts to implement wider cultural change”³.

By relying on “hate crime” legislation, we risk creating unhelpful inconsistencies in how sex-based crimes are dealt with by the justice system. It would, for example, leave it up to judges to determine whether an individual case of non-consensual sexual violation meets the threshold for a sex-based hate crime when in reality, these crimes against women are always inherently forms of violence against women, the result of unequal power relations between women and men in society.

Although we support the addition of “sex” in section 9(1)(h) of the Sentencing Act, we recognise that adding sex to the aggravating factors will not on its own prevent the hostility and misogyny that lies behind much of the violence perpetrated against women by men.

The maximum sentence for rape and other forms of non-consensual sexual violation is already 20 years in New Zealand, but the problem seems to be that women are discouraged from reporting assaults, that the prosecution process is traumatic for women, and that judges choose to hand down light sentences. Judges and police already have powers to crack down much harder on violence against women than they do.

Ultimately, we need a legal framework and system that recognises the impact of sexism, misogyny and violence against women. While a sex-based aggravating factor that is “added on” to existing sentencing factors will not do this on its own, it will address what we see as a misguided omission of “sex” from the list when section 9(1)(h) was introduced 20 years ago.

Publicity around the addition of “sex” to the list of aggravating factors will help educate the public about misogyny and about crimes against women. As Charlotte Brown said in her 2004 paper “Legislating Against Hate Crime in New Zealand: The Need to Recognise Gender-Based Violence”: “Only by making gender-based violence an issue, by articulating, understanding and condemning the motivations that drive it, can Parliament and the courts hope to begin to counter its high incidence⁴.

So-called “hate crimes” are crimes where the victim is targeted as a member of an identifiable group where hostility or prejudice is a motivating factor. When women’s rights activist Kelly-Jay Keen visited New Zealand, she was targeted by trans rights allies, politicians and the media who whipped up hostility against her in the week before she came here. Much of what was said about her was not true, e.g. that she was a Nazi. Kelly-Jay Keen feared for her life as she fled New Zealand and she has vowed never to return.

A feature of “hate crimes” is that those who knew victims of the crime, but were not victims themselves also had increased feelings of vulnerability, anxiety and anger. This happened at Auckland’s Albert Park in relation to Kelly-Jay Keen’s Let Women Speak event, and included those who were watching what was happening via the live streaming. Hate crimes send a message to the victim’s community who may also feel threatened or intimidated, as happened after Albert Park. Many women are still afraid to attend events to defend women’s rights.

We agree that actions motivated by hostility divide communities and reinforce barriers between groups. This is happening with Man Up members associated with the homophobic Destiny Church performing haka at Pride parades in both Auckland and Wellington. On the other hand, it must be said that it was provocative of the Pride organisers to hold a parade on International Women’s Day and run an event in a public venue that said “No TERFS allowed”. We are not defending Destiny Church in their actions, but provocative actions can be on both sides.

As one of our members said: “I am not a fan of Destiny Church’s views on gay and lesbian people – and I definitely don’t support all the things that they do. But I’m really wary of the way that their actions are being categorised as ‘motivated by hatred and hostility’. With the drag king protest, for example, some people could say that they are motivated by concern for protecting children, while other people could say that they are motivated by hate.”

Our concern is that specifying new “hate crimes” in the Crimes Act would probably crack down hard on organisations like Destiny Church, and would impose stronger penalties for actions like painting over rainbow crossings and protesting against drag queens in libraries, which we in the Women’s Rights Party might think is appropriate, but there is the risk of a slippery slope there. If it is a “hate crime” to protest drag queen story time, then it could be a “hate crime” to protest men in women’s sports, including in online posts. This has happened in Australia where a woman called Kirralie Smith was recently served with two apprehended violence orders (AVOs) because of social media posts that she made about transgender-identified male soccer players who were playing in women’s soccer teams. Kirralie Smith has never met either of the two males who brought the action.

Police data has been flagging perceived hate crimes since 2021. Although these perceived crimes have gone from 3464 to 5654, they are still less than 1% of total reported offences. Such crimes include disorderly behaviour, damage to property, or acts intended to cause injury, which are already crimes under the Crimes Act.

By far the majority (79%) relate to race/ethnicity (mostly Asian or Indian), 4% to gender identity, and 10% to sexual orientation. “Sex” is not included, despite the fact that it is mostly men committing the acts and women are likely to be most often the victims. We can’t tell from the data as to whether Asian or Indian women are being victimised, or lesbians who are victimised because of their sexual orientation and because they are women.

The Police data is based on a police officer’s perception that the crime was motivated by hostility or prejudice. Since 2022 Police have been trained to assess a hate crime, using posters on how to recognise hate crimes. One of these portrays women holding up a placard saying, “There are only two genders”.

Quite apart from the obvious stupidity in that sex-realists know there are many gender identities, but only two sexes, the training reinforces what we know of Police bias as evident in the recently released IPCA report on the Police response at Albert Park on 25 March 2023. Police dismissed calls by the Let Women Speak chief marshal to rescue women trapped on the band rotunda, saying the marshal was “in a flap”.

Police officers report all possible “hate crimes” (even though there is currently no such thing in law) and these are recorded in the National Intelligence Application using a perceived “hate” flag, whether or not a crime is prosecuted.

Under our current sentencing model, a crime must have been committed in the first place, but it should be noted that Police have included “non-criminal hate incidents” in their data – 1763 in 2023 and 834 from January to June 2024. These are incidents recorded by police officers into the national database that do not meet the threshold of a specific crime.

When the Ministry of Justice looked at crimes motivated by offenders’ attitudes towards a particular characteristic in the NZ Crime and Victims Survey, these were identified in 78% of sexual assaults, and 33% of threats and property damage.

There is an argument that conduct that is already an offence should not be further criminalised unless it would serve an additional purpose, e.g. deterrence, publicly denouncing conduct that is blameworthy and harmful. A problem with the current sentencing model is that aggravating factors are not normally covered by media, and are not regarded as being particularly effective as a deterrent. Further the current model does not denounce hostility as a motivation as this is not included in conviction history and not recorded in the sentencing notes (see 7.9-7.10). We think this is wrong and could be addressed by making it mandatory.

“Hate crimes” are certainly guaranteed a higher media profile, though may actually encourage copy-cat crimes as happened in the Isla Vista killings and subsequent Toronto Van Attack⁵.

There is concern about infringing freedom of thought because “hate crime” laws punish the offender’s beliefs and motives behind the offending. The fact that prosecutors rarely claim hostility as an aggravating factor to influence the court in sentencing reflects the difficulty in providing evidence of what an offender was thinking. It helps if the offender uploaded a video as in the Isla Vista case (see notes).

On the other hand, when it comes to rights to freedom of expression and association, the prosecution may introduce evidence of the offender’s speech, e.g. social media posts, or prior association with other people or groups. What can be missed in this approach is the effect of prejudice against women as a motivator in the commission of a crime. For example, although evidence was found that the Southport killer had accessed extremist Islamic content online, the fact is he attacked and killed little girls at a Taylor Swift dance class; he did not attack a boy scouts meeting.

If someone was being accused of an “anti-transgender hate crime” under some future hate crime legislation in New Zealand, then it is not too much of a stretch to imagine that the Court could see prior involvement with the Women’s Rights Party as evidence of “hate”, given that Wikipedia labels the Women’s Rights Party as anti-transgender or transphobic. This is despite the fact that the Women’s Rights Party is avowedly pro-women’s rights and our members do not “hate” transpeople. It is disturbing to think there could be women, and men, who are at risk of being accused of a “hate crime” by association with the Women’s Rights Party!

One of the arguments against singling out offenders for so-called “hate crimes” is the right to equality before the law. Hate crimes single out some victims more than others, creating a hierarchy of victimhood, i.e. victims that are more worthy of protection than others. This can also apply with the sentencing model as we found with Eli Rubashkyn, who was found guilty of throwing a substance we now know as tomato juice over Kelly-Jay Keen and her supporter Tania Sturt at Albert Park on 25 March 2023. Rubashkyn ‘s lawyer claimed his client was being victimised because he was transgender, but what about the actual victims, both of whom are women? Rubashkyn’s claim that he was the one being victimised resulted in a conviction and discharge without a penalty.

The current hate crime law lists examples in the Sentencing Act of “enduring common characteristics – race, colour, nationality, religion, gender identity, sexual orientation, age, or disability” but NO mention of sex.

Charlotte Brown outlines how section 9(1)(h) was developed in response to a single submission by a gay rights activist which focussed almost entirely on crimes perpetrated against members of the gay, bisexual and transgender communities.

At the Select Committee stage the focus was on incidents targeting homosexuals, people identifying as transsexual or transgender, and racial minorities. There was no mention of crimes committed against women. Phil Goff, who chaired the Justice and Electoral Committee at the time, thought that “gender”, i.e. “sex” was covered by the inclusion of “gender identity”, one reason why we prefer to use the term “sex” than “gender”.

In fact “sex” is the term used in the Human Rights Act, the NZ Bill of Rights Act, and the Employment Relations Act as a separate ground for discrimination and it is because of just such confusion that we strongly advocate for continuing use of the word “sex” in legislation.

We argue that there is a demonstrated need for “sex” to be included in the list of potential aggravating factors to be taken into account in sentencing (see 3.53). We saw a man get discharge without conviction in an assault case where he repeatedly punched a 70-year-old woman in the face at Albert Park after he and other protestors burst through the barriers separating them from Kelly-Jay Keen’s supporters. In applying aggravating factors, the Judge noted the offender was neurodiverse and if sentenced, he would find it difficult to find employment. The violence of the offender’s unprovoked attack on the women and the lack of consideration of the role of misogyny as a motivator sent a chilling effect to women all over New Zealand. It is no wonder that many women do not report assaults against them.

Charlotte Brown has provided several examples of where the courts have passed up the opportunity to denounce misogynistic attitudes and have gone so far as to pity “women-hating” defendants in stark contrast to offenders in racially-motivated crimes.

Brown says: “Just as Parliament has neglected to acknowledge gender-based violence in section 9(1)(h), the courts have routinely ignored or failed to give emphasis to misogynistic motivations for crime. In effect the courts are reinforcing the notion that women-hating is distinct from race hating or hating gay people, in that it is somehow more acceptable and less in need of denunciation. Such a limp and uninspired response to gender-based violence demonstrates even greater need to highlight this violence as discriminatory, abnormal and unacceptable⁶.”

The Royal Commission recognised hate crime laws to protect violence against women as an appropriate response; they said all violence against women and girls is closely linked to gender-based prejudice and inequality. (Note the Royal Commission used the term “gender” as interchangeable to “sex”). But the Commission said treating some of these offences as hate crimes could “send the wrong message” and the Royal Commission also pointed out that there are already higher maximum penalties for sexual offences (see 3.55)

Scotland has protected “transgender identity” since 2009, but in Scotland they are looking at including “gender” (by which they mean “sex”) as they acknowledge violence against women as a significant problem (see 3.56). The Scottish Government has undertaken to introduce detailed legislation to improve protections for women before the end of this parliament⁷.

In New Zealand the Court is required to take into account aggravating factors relating to hate motivation where the offender committed the offence against a group of people who have an “enduring common characteristic” such as race, colour, nationality, religion, gender identity, sexual orientation, age or disability, and the hostility is because of the common characteristic and the offender believed that the victim had that common characteristic.

The fact that only two sentencing decisions applied the aggravating factor for offending motivated by hostility towards women, and both were more than 20 years ago before the section 9(1)(h) list was entered into law, indicates that the absence of “sex” has meant that this factor has been overlooked by the courts and that the list is in fact treated as exhaustive. (see 5.47)

As pointed out in 5.44, some characteristics listed in the aggravating factors are not necessarily enduring, e.g. religion and sexual orientation. We bring to your attention that “gender identity” is probably even less enduring, given the increasing number of detransitioners.

We think the omission of “sex” in the list sends the wrong message. Not only is “sex” enduring (i.e. you can’t change your sex), but there are well documented examples of crimes motivated by hostility towards women. New South Wales Police openly said the offender in the Bondi Junction mall attack last year had focused on attacking women and avoided injuring men.

An argument for the sentencing aggravation model is that it is used in Australian, Canadian and Northern Ireland jurisdictions, to which that we tend to compare ourselves. It is also used in England and Wales alongside specific hate crime offences. (see 4.6)

There are 15 other potential aggravating factors that can be used in sentencing, including actual or threatened violence or use of a weapon, unlawful entry, that the victim was particularly vulnerable. (see 4.10) We note that in your example of aggravating factors in the scenario (see 4.11) you have not included the most obvious factor, i.e. that the victim is a girl.

Misogyny is real. English woman Laura Bates, author of “Men Who Hate Women” based on her undercover investigation of the “manosphere”, told Radio NZ’s Nine to Noon that every time she appears in the media or at speaking events, she receives a torrent of abuse and death threats⁸.

Within weeks of starting an “Everyday Sexism” project where women could share their experiences, Laura Bates was receiving around 200 rape and death threats in a single day from men graphically describing the different weapons they would use to disembowel her, and the order they would use them.

In June this year, a UK man was given a suspended prison sentence after he sent audio clips and chilling graphic details of how he wanted to kill author J. K. Rowling with a hammer. The man also threatened to kill UK Labour MP Rosie Duffield with a gun. The magistrate took the threats seriously, saying that while free speech was important, there was a line in the sand and the accused had gone well beyond that line.

1. DO NOT create new “hate crime” laws. Hate crime laws single out some victims more than others, creating a hierarchy of victimhood, i.e. victims who are more worthy of protection than others. The absence of “sex” from section 9(1)(h) suggests that hating women is more acceptable than hating people because of their race or religion, or hating people who identify as the opposite sex or no sex (i.e. non-binary).
2. Standalone, sex-based laws with higher penalties are more appropriate in dealing with violence against women and children.
3. Amend the Sentencing Act to include “sex” in the list of examples in section 9(1)(h).
4. Do not use the word “gender” when what is meant is “sex”. The words are not interchangeable. Gender is an imprecise concept that refers to sex-based stereotypes and social expectations; i.e. what is considered feminine and masculine.
5. “Gender identity” should not be used in law as this is a belief, heavily dependent on sex stereotypes, and contributes to the inequality and subordination of women.
6. The word “hostility” in the Sentencing Act is better than the word “hate”. The word “hate” should not be added to law as it is too subjective, vague, and inflammatory.

Prepared by: Jill Ovens National Secretary Women’s Rights Party