A Response to the Law Commission’s Hate Crime Law Final Report

On 16th December 2021 by Mark Walters in Football, Gender critical feminism, Gendered violence, hate crime, Hate crime legislation, Hate Speech, misogyny, Stirring up hatred, transgender hatred

By Jon Garland, Jo Smith, Mark Walters and Irene Zempi

On December 7^th the Law Commission for England and Wales published its long awaited final report on hate crime laws. In 2018 the Government requested that the Commission look into whether the law should be expanded to include new characteristics (including gender or sex) and whether the current framework of legislation required amendment to improve its practical application. Over the past three years, the Commission received almost 2,000 consultation responses and it participated in extensive engagement activities with interest groups and academics.

It is no exaggeration to say that the expectations have been high. In particular, there have been growing calls for the law to include misogyny as a type of hate crime; with increased awareness of this type of prejudice-based conduct following campaigns against online abuse directed at women (including politicians), the #MeToo movement, and more recently the murders of Sabina Nessa and Sarah Everard.

There have also, amongst other issues, been calls for additional characteristics (such as subcultural groups) to be included in hate crime law; for the stirring up offences to cover disability and transgender hatred; and for the football chanting offences to be extended to cover other forms of prejudice (such as homophobic chanting).

We make no bones about the fact that we are disappointed with the results of the Commission’s final report. Although they recommend that all five protected characteristics should be covered within the dual system of aggravated offences and enhanced sentencing regime, and that the stirring up of hatred offences should be expanded to include disability, transgender and gender or sex, beyond that not much will change. The result is a bloated report which circles in on itself recommending little more than what was already suggested by the Commission in its more limited review in 2014.

1. THE REJECTION OF MISOGYNY AS HATE CRIME

During the consultation, the Law Commission considered the case for adding the characteristics of “gender” or “sex” to the list of protected characteristics set out under the Crime and Disorder Act 1998 and the Sentencing Act 2020. The Commission apply three criteria for deciding whether any additional characteristics should be recognised in hate crime laws – need, additional harm, suitability. Based on the evidence of the prevalence and harm caused by crimes that are motivated by or demonstrate hostility towards women, the Law Commission concluded in its consultation paper that there was a strong in-principle case for adding the characteristics of “gender or sex’’ to hate crime laws; with gender-specific carve outs (i.e. exclusions) for sexual offences, forced marriage, FGM and crimes committed in the domestic abuse context (due to suitability issues).

A key benefit of adding the characteristics of gender or sex to hate crime laws would be the symbolic, declaratory impact of recognising gender-based hostility and prejudice in law.  However, just over one month before the Commission published its final report, the Prime Minister announced that misogyny should not be included in law as a hate crime. In line with this, the Law Commission’s final report reversed its initial proposal and recommended that the characteristics of gender or sex be excluded from the list of protected characteristics. This, they argued, was due to practical problems associated with inclusion, including that the law would become overly complex if carve outs were enacted for misogyny hate crime but not for the other types. They go on to recommend that the Government carry out a further review on the possibility of introducing a new offence of public sexual harassment as a means of tackling misogyny-based offences outside of the hate crime framework.

We believe that this is a missed opportunity to create a framework of hate crime laws that operates to prevent all types of prejudice-based criminal conduct; as evidenced under the Commission’s own criteria. The failure to include gender or sex sends out a clear message that prejudice directed towards women is not considered worthy of the specific label of hate crime. It is also a missed opportunity for what some criminal law theorists refer to as educative deterrence.  This is where the law’s expressive function serves to “remoralize” society about the acceptability of  gender-based hostility. Exclusion additionally means that the lack of national data on misogyny-based hate crime will continue.

Conversely, the final report concluded that the provisions that criminalise stirring up hatred be extended to cover all five protected characteristics as well as sex or gender; thereby creating a more equal position in regard to “hate speech” offences. This recommendation came from a recognition of the rise of misogynistic hate speech, and the association between the growing presence of incel ideology online and misogynistic murders. Yet the high bar set for prosecuting stirring up offences means that few incidents of misogynistic abuse and incel ideology will be captured, and anonymity and jurisdictional issues associated with online speech mean that prosecution of such offences will be extremely difficult.

Ultimately the inclusion of gender or sex in the stirring up offences, and its exclusion from general hate crime provisions, will fail to stem the spread of misogynistic views and ideologies. It will also mean that having been tasked with creating “parity” in law for hate crime, the Commission will have created a new hierarchy of protected characteristics. It sends a message that as a society, we do not consider misogynistic hate crime as something we ought specifically to challenge.

2. THE INCLUDING OF A SPECIAL PROTECTION FOR CRITICAL VIEWS OF GENDER IDENTITY

Beyond the expansion of the stirring up hatred offences to cover gender or sex is the scope of the inclusion of transgender identity in the proposed legislation. Within the newly recommended provision, the Law Commission proposes a special protection to prevent prosecution for the view that “sex is binary and immutable, and the use of language which expresses this.” The Law Commission note that gender critical beliefs, expressed in the context of employment, have been held to be “worthy of respect in democratic society” – as per human right protections under Articles 9 and 10 European Convention on Human Rights. They conclude that in the context of hate speech a freedom of expression clause, expressly outlining that this is the case, is required to ensure that the law is not misapplied.

Freedom of expression is a fundamental right in a liberal democracy. We wholeheartedly agree that it be a protected in human rights law. However, the criminal law is not in the business of prescribing special types of speech for people to engage in. Its role is to proscribe conduct worthy of criminalisation, typically including defences to that proscribed conduct where the behaviour is justified or excused. The protection in law of a type of speech, relating to a specific topic and to a specific identity, reverses the normative position of the criminal law. In so doing, it will have the effect – not of telling the public what they ought not to do – but what they can do. It is an extraordinary recommendation for the Law Commission to make, and inconsistent with the manner in which the criminal law is traditionally structured.

Our concerns here are well expressed by the Gender Identity Research & Education Society in the Law Commission Report:

“We disagree…that people who express insulting or hateful views about trans people should be protected from prosecution under hate crime legislation under sections 29J and 29JA…We think it would be harmful to afford legal protection to people who engage in…the discussion or criticism of gender reassignment; treatment for gender dysphoria; provision of and access to single-sex facilities and activities” because this criticism effectively vilifies and dehumanises transgender people and encourages the public to do the same.” 

The lack of clarity in what is best described as a pre-emptive exemption risks the protection of harmful speech being much broader than simply expressing that ‘sex is binary and immutable’. Providing exemptions which allow the lived realities and rights of trans and non-binary individuals to be questioned and ‘debated’ has the potential to contribute to a climate of intolerance against trans and non-binary individuals. It sends the message, not that we condemn this speech, but that we condone and exceptionally protect it. If enacted we will be left with new criminal offences that not only fail to define what transgender hatred is, but which tell the public they can legitimately engage in offensive commentary that serves to deny the very existence of trans people. This gives rise to the question: will the new stirring up of hatred offences serve to protect or harm transgender people?

3. EXCLUDING OTHER CHARACTERISTICS IN LAW

Another important aspect of the Commission’s work was to examine whether ‘borderline’ types of victimisation – those that appear to resemble the officially recognised hate crimes in nature and impact but aren’t recognised as such – should be included under hate crime legislation. The Commission examined five of these cases, related to age, sex workers, alternative subcultures, homelessness and philosophical beliefs. Despite the Commission’s exhaustive work, and the weight of evidence garnered from the written and verbal testimonies of key stakeholders, none of these suggested ‘new strands’ was recommended to be included under hate legislation. While we do not have the space to debate each of the Commission’s decisions, what did surprise us was how the evidence was utilised to justify the Commission’s conclusions. Nowhere was this more apparent than in the discussion of alternative subcultures. While the Commission appeared to be persuaded by the nature, extent and impact of the problem, it nevertheless rejected the case. The Commission argued that the ‘non exhaustive’ nature of the definition of alternative subcultures may mean that certain ‘groups such as paedophiles or extremist groups could plausibly fall within [it]’ (p. 273), a rather weak argument especially given their willingness to prescribe specific exceptions in the stirring up of hatred offences. If there are concerns about a potentially loose definition of ‘alternative subcultures’, then why not create a workable definition that excludes spurious claims from inclusion?  We have already seen arguments claiming that paedophilia should be included in sexual orientation being quickly excluded by the courts (see e.g. R v B [2013] EWCA Crim 219).  We see no reason why the same would not apply to alternative subcultures. The Commission’s puzzling justification may be an indicator that it was searching for reasons – however tenuous they may be – for minimizing criminalisation.

Another part of the Commission’s remit was to examine the Football (Offences) Act 1991 to see if it should include not just racist chanting at football matches (as it currently does) but the other four recognised hate crime strands too. While there was plenty of evidence presented to the Commission about the levels and trends in abuse across all five hate crime strands at football (see Kick It Out’s 2019/20 annual report, for example, as the Commission did), somewhat surprisingly the Commission decided against including them. It argued that existing legislation, in the form of the 1986 Public Order Act, was sufficient to capture any offences committed under the other four non-included strands. Yet this is an old argument that opponents of hate crime laws have used against the introduction of such legislation for decades, and it seems rather counterintuitive that the Commission would expound it too. After all, as mentioned above, the Commission is recommending that all five characteristics should be covered by a single piece of aggravated offences legislation. It seems, therefore, that on the one hand the Commission is recommending the ‘equalising’ of the strands, yet on the other is maintaining inequalities between them, in the context of football – a rather confusing anomaly.

Conclusion

This blog has not been able to do justice to the vast array of issues that were covered by the Commission’s evaluation of hate crime law. However, it is suffice to say that many of the key changes that campaigners had worked to bring about have not been realised during this protracted review process. Although initially being receptive to the need for change, the Commission has resorted to a conservative vision of reform that focuses very much on maintaining the status quo; and with it a system of law that continues to neglect the harms of misogyny. In doing so, we believe that an important opportunity has been lost to make bold choices about how hate crime law can make an important contribution to addressing the myriad forms of hate that continue to blight communities throughout England and Wales.