Recording sex in the criminal justice system: MBM letter to the National Advisory Council on Women & Girls

As part of the current NACWG spotlight on justice, we would like to draw your attention to a recent case which we think raises questions about how sex and gender are recorded within the criminal justice system, and reported by the media.

In this case, a ten-year-old girl was physically assaulted by a seventeen-year-old [at the time of offence] in a supermarket toilet. In a separate incident, the same person followed a twelve-year-old girl into public toilets at a different supermarket, and attempted to film her urinating. The accused received a community sentence and tagging order at Kirkcaldy Sherriff court, to the distress and anger of the child’s family. A press report on the case is here:

Dundee Courier Mum of supermarket toilet sex assault victim warns freed attacker could strike again 2 February 2019.

A subsequent press report stated that Fife Council placed the offender in a women-only hostel:

Dundee Courier Warning after transgender sex offender placed in women’s hostel

The original press report (2 February) refers to the offender as ‘she’ and ‘her’, except when quoting the victim’s mother. It relies on the victim’s family to strongly assert the sex of the offender: ‘Dolatowski, who identifies as a woman but was believed by her victim’s family to be a man’ The paper appears to have felt unable to state the offender’s sex directly, although it should be noted that Dolatowski was under the minimum age for obtaining a Gender Recognition Certificate at the time of the offence and could not have undergone any change of legal sex, and therefore the confidentiality provisions of the GRA 2004 would not apply.

The use of pronouns in both reports implies that COPFS may have recorded the offences as if committed by a female, although we would stress this need to be clarified. Police Scotland state that they record crime incidents on the basis of self-declaration, ‘unless it is pertinent to any criminal investigation with which they are linked and it is evidentially critical that we legally require this proof’ (see: Police Scotland IM-FOI-2018-1789 27 August 2018).

Council members will be aware that sexual assaults by women on unknown girls in public places are exceptionally rare. This means that recording based on gender identity rather than biological or legal sex in this case alone could skew official statistics on such incidents. More generally, small numbers of males identifying as women amongst those committing sexual or violent offences could damage our ability to properly document, analyse and understand such behaviours. To the best of our knowledge, there has been no democratic debate or oversight of the introduction of unregulated self-identification principles into the criminal justice system.

For the purposes of accuracy and understanding offending behaviours, we would like to suggest that Council members discuss the implications of crimes and offences no longer being reliably recorded according to legal sex, especially sexual and violent crimes and offences, as well as other crime types where there are established sex-based differences in offending patterns.

Further, Council members might consider how the introduction by criminal justice agencies of a separate additional data field for gender identity, which would not need to be limited to the sex categories recognised in law, could help provide a better evidence base for analytical purposes. research and policy.

We would further like to suggest that there is a strong public interest argument for the media being able to report on legal sex in relation to sexual or violent offending without any constraint, and that Council members should consider this issue.

The case also raises serious questions about the placement of the offender in a women’s hostel, and the decision of Fife Council not to apply the single-sex exemptions provided for in the Equality Act 2010. We would however suggest that the practical operation of the Equality Act in relation to the protected characteristic of sex needs separate and detailed consideration in its own right.

27 February 2019