The Law Commission of England and Wales considers sex or gender should not be a characteristic for defining hate crime. The commission report proposes more legal protections to the LGBT+ community.
On December 7, the Law Commission announced recommendations to reform hate crime legislation.
The Law Commission of England and Wales reviews the law to make sure it is “fair, modern“, spots “anomalies” to remove and recommends reforms to the government.
Criminal offenses in England and Wales are considered as hate crimes when the victim is targeted because of one of these five characteristics: race, religion, disability, sexual orientation, transgender identity. In 2020/21 there were 9,236 convictions for hate crime.
But among hate crimes, only racial or religious hostility can carry higher maximum penalties for an aggravated offense. So the commission proposes that crimes on the ground of sexual orientation, disability and transgender identity can receive the same maximum sentences.
The commission also recommends that sexual orientation include people who consider themselves as asexual and that the term “transgender identity” be replaced by “transgender or gender diverse identity“.
Criminal offenses with sex or gender-based hostility should not be hate crimes
But the report considers that sex or gender should not be added as a protected characteristic in hate crime laws. “Simply adding sex or gender to hate crime laws is unlikely to capture much public sexual harassment”, the commission justified.
The commission further explained that distinguishing sexual offenses or domestic abuse cases with an additional element of misogyny was not necessarily helpful.
It also expressed concern that classifying some of the sexual offenses as misogynistic could create hierarchy among victims of these offenses and “reinforce certain rape myths“. It also found that adding a layer of proof would make the prosecution even more difficult than it is today.
In that sense, the recommendation is close to the prime minister’s opinion. In early October, Boris Johnson considered misogyny should not be a hate crime because “we should prosecute people for the crime that we have on the statute book […] There is abundant statute that is not being properly enforced and that is what we need to focus on“.
Nevertheless, the law commission suggested a new offense for public sexual harassment which would be easier to prosecute.
The matter has been debated for some time in the English society. Calls for change even grew louder since the recent murder of Sarah Everard.
Sarah Everard was a 33-year-old woman kidnapped as she was walking home by a police officer arguing she didn’t respect Covid-19 restrictions in March 2021. She was raped and murdered by strangulation.
Campaign groups advocating for the consideration of misogyny as a hate crime were angered by the commission recommendations.
Sex and gender hostility should be considered in stirring up hatred offenses
However, stirring up hatred should be extended to cover speech on grounds of sex or gender.
The commission reacts to the growing threat of Incel ideology and “its potential to lead to serious criminal offending“. Incels, for involuntary celibates, are mostly men who consider themselves as unable to find love or sexual partners and blame women for it.
Stirring up hatred applies when speeches target groups in general but not individuals. It only has a dozen cases a year right now.
At the moment, hate speech only applies to racial and religious hostility but the commission also recommends to extend these considerations to disability, sexual orientation, and transgender identity. This recommendation differs from their report in 2014 when they “found insufficient evidence” to add characteristics of disability and transgender identity when considering hate speech at that time.
However, the commission recommends that having gender critical views, such as sex is binary and immutable, should be protected under the rights of free speech.
In regards to homophobic chants in football stadiums, the commission considers public order offenses already cover them. As such, there would be no need for a bespoke chanting offense. A law defining hate speech exists for racialist chanting at a football match in the Football (Offences) Act 1991.