Statement to the Legal Affairs Committee of Parliament on the amendment of the Criminal Code of Finland and taking gender into account as grounds for increasing the punishment (HE 7/2021 vp.) (TAS 525/2021, issued on 27 October 2021)
The Ombudsman for Equality was heard by the Legal Affairs Committee of Parliament on 27 October 2021 on an amendment to the Criminal Code of Finland, in which a motive based on the gender of the victim would be added to the grounds for increasing the punishment listed under "Determining the sentence".
The Legal Affairs Committee of Parliament asked the Ombudsman for Equality to issue a statement on the government proposal for an amendment to the Criminal Code of Finland. (HE 7/2021 vp.) In his statement, the Ombudsman for Equality examined the Criminal Code of Finland from the perspective of gender equality.
The proposed amendment is commendable but lacking
Criminality, violence and hate speech are phenomena differentiated by gender. The majority of violent crime consists of violence between men. This is stated in the government proposal as well. Average differences between the genders can be found in the forms, motives and effects of violence when women and men are compared as perpetrators and victims. In the opinion of the Ombudsman for Equality, the gendered nature of violence should be recognised and understood in order to better prevent violence and hate speech and protect victims.
The Ombudsman for Equality is in favour of adding gender to the provisions of the Criminal Code of Finland (39/1889) as proposed. However, the proposed amendment is lacking in certain respects from the perspectives of gender equality and Finland's human rights obligations. As a rule, the Ombudsman for Equality is in favour of the gender-neutral premise of the Criminal Code of Finland, but took notice of the conceptions of gender presented in the rationale for the amendment.
International human rights obligations require a wider examination of gender and the Criminal Code of Finland
Finland's international human rights obligations require combating gendered violence against women, and this perspective should have been consistently included in the rationale for the proposal. International law defines gendered violence against women as violence committed against women based on gender and/or violence the victims of which are typically women.
According to the definition in the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention), for example, 'gender' means the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men. Unlike the government proposal's narrow conception of gender as a personal, externally perceptible characteristic, the concept of gender enshrined in international law makes it easier to define what we are talking about when discussing gender, violence against women and misogyny, as well as gendered violence.
The aim of the proposal is to emphasise the reprehensibility of acts motivated by gender-based hatred. It also aims to achieve stronger intervention in systematic harassment, threats and targeting, which threaten freedom of speech, the activities of the authorities, research and communications. On the other hand, the effects of the amendment are estimated to be mostly limited to influencing attitudes. Furthermore, the proposal states that it is justified to assess gendered hate similarly to racism in legislation. However, the proposal does not address sexism and the historically subordinate status of women as structural social issues like racism and racist offences, which could be taken into account in the assessment of the reprehensibility of offences in the Criminal Code of Finland.
The Istanbul Convention provides for aggravating circumstances in substantive (criminal) law and requires, among other things, that the Parties ensure that an intimate relationship between the perpetrator and victim is taken into account as an aggravating circumstance in their national legislation. However, with regard to intimate partner violence, for example, the government proposal states that, even though women are more typically the victims in intimate partner violence, it is not motivated by gender, but motives such as relationship problems, jealousy and revenge. In a deeper understanding of violence against women and gendered violence, however, the aforementioned motives are considered to be gender-related. The Ombudsman for Equality finds it unfortunate that this view was not taken into account in the preparations of the government proposal and the need for possible dedicated statutory definitions for offences was not considered in this regard.
The proposal states that, as an alternative to amending the grounds for increasing the punishment, gender could have been added to the statutory definition of ethnic agitation. This alternative was nevertheless rejected on the grounds that the provision is intended to protect vulnerable ethnic groups with a minority status or other need of special protection. In this regard, the Ombudsman for Equality would have hoped that the significance of gender as an established and widely prohibited grounds for discrimination would have been taken into account in the assessment of this regulatory alternative. It is now possible that acts to which the proposed grounds for increasing the punishment do not apply may remain entirely outside the scope of punishment.
The protection needs of gender minorities
Because the terms used by people of themselves and their gender identities are fluid, the proposal states that the Criminal Code cannot specifically take into account and define such terms. Therefore, the proposal concludes that motives related to the victim's gender identity, gender expression or being an intersex person would continue to be defined as "another corresponding" motive based on hate. On the other hand, 'gender' refers to men and women in the proposal.
The Ombudsman for Equality finds this premise to be inconsistent and detrimental. Gender identity and gender expression are established concepts in legislation. With regard to these concepts, the government proposal itself refers to the Act on Equality between Women and Men, in which the concepts are defined. The best possible way to take into account the diversity of gender and the protection of gender minorities from discrimination was studied during the preparations for the amendment of the Act on Equality between Women and Men. A specific provision was added to the Act on Equality Between Women and Men as section 6 c, stating that authorities are obliged to take pre-emptive action in a purposeful and systematic manner against all discrimination based on gender identity or gender expression.
Members of gender minorities are especially vulnerable, for example to various forms of discrimination precisely because of their gender minority status, and it would be important to make this visible. The Ombudsman for Equality accordingly considers it important to specifically mention gender identity and gender expression in the provision.