Response to the Law Commission’s hate crime consultation

The UK Law Commission is running a consultation on “reforms to hate crime laws to make them fairer, and to protect women for the first time.” It also includes a question about whether the hate crime legislation should be extended to include “sex workers” as a protected characteristic.

There are two versions of the consultation: a full version that has 62 detailed questions, and a summary version that has 20 broader and higher-level questions.

Nordic Model Now! responded to the summary consultation but not to all of the questions. You can find our responses below. If you are responding to the consultation, you are welcome to use this as inspiration and/or to copy and paste from our responses.

The consultation closes on Thursday 24 December 2020.

Note: There is some repetition in our responses because we understand that all the responses to each question are analysed separately rather than with the same respondent’s responses to the other questions.

You can download this paper as a PDF that is formatted with references suitable for copying into the consultation form rather than hyperlinks.


Summary Consultation Question 1

We provisionally propose that the criteria that should be considered for the addition of any further characteristics into hate crime laws should be:

  • Demonstrable need: evidence that criminal targeting based on prejudice or hostility towards the group is prevalent.
  • Additional Harm: evidence that criminal targeting based on hostility or prejudice towards the characteristic causes additional harm to the victim, members of the targeted group, and society more widely.
  • Suitability: protection of the characteristic would fit logically within the broader offences and sentencing framework, prove workable in practice, represent an efficient use of resources, and is consistent with the rights of others.

Do you agree?

No. While these criteria have some merit, we do not accept them because they suggest that hate crime is underpinned by free-floating, irrational hatred of another group divorced from historical power structures in society.

Hate crime legislation has its roots in the fight of historically disadvantaged groups to end the official sanctioning of discriminatory behaviour and to bring about change and a more egalitarian society.

For example, Black activists showed how racist jokes and behaviour are a social mechanism that implicitly defines Black people as outsiders or ‘other’ and maintains their subordinate position and explicitly or implicitly justifies their systematic exclusion from the institutions of power.

Feminists have similarly shown that male violence, abuse and harassment of women and girls serves to not only confirm men’s individual and collective superior position but also puts women under continuous threat and reduces their ability to participate on equal terms in public and economic life.

For this reason, sexist and racist acts are not isolated incidents but are part of a pattern of behaviour that collectively serves to oppress, subordinate and exclude whole groups and classes of people, namely women, and Black and Asian people and members of other minority ethnic groups.

The individual acts of racism and sexism combine to maintain the status quo in which people who are Black or female are systematically subordinated and excluded from their fair share of and participation in the common good, thus ensuring that white men continue to dominate political, cultural, economic and academic institutions. The behaviour should therefore be seen as discrimination. When society condones such individual acts, it is implicitly condoning the sexist and racist systems of which they are an intrinsic part and the discrimination that maintains those sexist and racist systems.

That women have not already been protected under the law against hate crime, while the evidence shows that they are one of the prime target groups for such behaviour, indicates how far women are from achieving equity with men in the UK. It also highlights the very issue of systemic discrimination and oppression that women and girls face.

The characteristics of Black and female are not ephemeral identities but rather are fundamental and core aspects of the human being that it is not possible to change and that usually are clearly visible for everyone to see.

This is quite different from attacks and harassment based on more ephemeral characteristics which have not formed the basis of centuries or millennia of systemic oppression. We are concerned that if more superficial or transient characteristics are included in the hate crime legislation, it will trivialise and obscure the original purpose of the legislation.

We therefore do not believe the characteristics protected under hate crime legislation should be extended beyond the protected characteristics defined in the Equality Act 2010. For this reason, we oppose the proposed redefinition of the ‘transgender identity’ characteristic to include people who “cross dress.”

Targeting individuals who are vulnerable in other ways (for example, because they are homeless) but where the Equality Act protected characteristics are not relevant is particularly egregious. However, we believe this should be dealt with through sentencing guidelines outside the hate crime legislation – and we understand this is already the case.

Summary Consultation Question 2

Should the characteristic of “sex or gender” be added to the characteristics protected by hate crime laws?

The terms ‘sex’ and ‘gender’ have become confused. ‘Gender’ is sometimes used as a synonym for ‘sex’ and sometimes to mean a self-chosen ‘gender identity.’ This can obscure the sociological meaning of ‘gender’ which refers to the social roles and behaviours that are assigned to and considered appropriate for members of the two sexes.

We therefore do not support basing a new hate crime characteristic on “sex or gender.” We do support, however, the inclusion of the characteristic of ‘sex’ but, like disability and transgender identity, we believe it should be one-way and should protect women and not men – in recognition of the ongoing and historical subordination of women as a group based on their sex, and their continuing exclusion from a fair share of political, social, economic and cultural power and resources, and their disproportionate targeting for violence and abuse as set out so clearly in the consultation paper.

We do not believe that there is evidence or justification for protecting men from hate crime based on their sex, and there is a real risk that if they were, it would be used as yet another state sanctioned tool to oppress women.

For example, we frequently see women and women’s groups being banned from social media when they share a feminist analysis or post well-researched statistics on male violence against women and girls – on the basis that it’s hate speech against men; while men and men’s rights activist groups that post rape and murder threats against individual women or violent and misogynistic pornographic material are allowed to continue uninterrupted.

In fact, men (and their female allies) often report feminists and feminist groups to the social media companies en masse, leading to those feminists and groups getting banned, restricted or closed down. An example of this was Facebook closing down the feminist discussion group, “Refuse to date men who use porn,” which had approximately 27,000 members and was focused on discussing how pornography was affecting the lives of women and girls on a daily basis. After the group was closed many of these members were left isolated and without an alternative forum to safely discuss their real and genuine concerns.

Men’s mass reporting of feminist women on social media with the aim of getting them banned is organised harassment of women and should be understood as hate crime. It silences women and, like harassment in physical spaces, stops women engaging fully in political and cultural life, and makes it hard, if not impossible, for women to organise politically. This means that women’s voices, needs and analysis of their experiences are erased from the public sphere while men’s voices, needs and analysis continue to dominate and be prioritised.

The case example on page 83 of the consultation paper provides an excellent example of what we consider to be a similar misuse of the hate crime legislation. The case involves an Iraqi asylum seeker whose behaviour, rather than being based on race hatred, seems more likely to be caused by post-traumatic stress disorder (PTSD) resulting from witnessing his country being bombed and occupied by British and American forces.

His evident mental disturbance was used as evidence of “hostility based on a police officer’s membership or presumed membership of a particular racial group, namely British.” This is clearly wrong on many levels. It is important that the hate crime and hate speech legislation are amended so that they cannot be used in a similar way in future.

Many women who have survived harassment and sexual and domestic abuse suffer from PTSD and other psychological and emotional disturbances caused by that abuse – including fear of and anger towards men. It would be a disaster for women individually and collectively if police and other authorities were to interpret this response to abuse as hate crime. This would amount to sexist discrimination.

The UK has a binding obligation under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to eliminate all of the forms of discrimination that women suffer because of their sex. There is no such obligation to give equivalent protection to men – because they have not suffered millennia of systemic oppression because they are men. We believe that the characteristic of female sex should therefore be protected under the hate crime legislation.

Summary Consultation Question 4

Should any of the following groups be specifically protected by hate crime laws?:

  • sex workers
  • homeless people
  • alternative subcultures (for example, goths, punks, metallers, emos)
  • philosophical beliefs (for example, humanism)

No.

We explained in our response to Question 1 that we do not believe that the characteristics specifically protected by hate crime laws should extend beyond the protected characteristics defined in the Equality Act 2010 and that crimes against otherwise vulnerable people should be dealt with through sentencing guidelines which we believe already exist. If these are not working, then they need to be strengthened.

It is not necessary for all vulnerable people to be specifically protected under hate crime legislation for them to be treated with respect and be supported by the police and the criminal justice system. The police and criminal justice system should treat all vulnerable people with respect and support as a matter of course.

Similarly, it should be possible for the police to record much richer data about victims of crime, including whether they are homeless, involved in prostitution, or members of alternative subgroups etc. There should be a nationwide mechanism for recording such information in police databases so that it can be easily extracted for data analysis and research purposes and to facilitate investigation of linked crimes. We do not accept that this is not possible without extending the hate crime legislation to these groups.

We will now provide a detailed explanation of why we do not believe that specific protection under the hate crime should be extended to “sex workers.”

Firstly, we reject the terms “sex work” and “sex worker” because they are euphemisms that sanitise the reality of prostitution, obscure its harms and confuse the narrative. These terms position prostitution as a form or normal work or labour and therefore imply that it is benign and harmless – when nothing could be further from the truth.

Furthermore, the “sex work” term is used to cover a range of activities from webcamming and phone line work, to the intimate contact, penetration and exchange of body fluids that are core to prostitution. The term is sometimes even used to cover pimping and facilitating other people’s prostitution. Using one term for all these different activities introduces confusion and obscures their distinctive nature and the harms of actual prostitution.

Secondly, although the consultation paper briefly recognises that there is more than one way of viewing prostitution, it appears that the Law Commissioners did not consult fully – or perhaps even at all – with those who view prostitution to be a fundamental infringement of the inalienable human rights of the person and who understand it as both a cause and consequence of women’s inequality and subordinate social, cultural and economic position and as a key part of the ongoing and historic systemic oppression and subordination of women both individually and collectively.

Those who support this view usually also support what is known as the Nordic Model approach and are sometimes referred to as abolitionists. The Nordic Model decriminalises those who are prostituted, provides support services to help them exit, and makes buying people for sex a criminal offence, in order to reduce the demand that drives sex trafficking. The Nordic Model was approved as the best model to address prostitution by the European Parliament and the Council of Europe in 2014.

This apparent lack of consultation with those who are critical of the sex trade as an institution is in stark contrast with the clear wide consultation on homelessness. For example, on page 337, the consultation paper says:

“When we met with Crisis, they expressed reservations about creating a protected category centred around homelessness. Whilst Crisis emphasised that they want people experiencing homelessness to be better protected from violence, they also believe that homelessness should not exist in society at all, nor should it be considered inevitable. Indeed, Crisis’s long-term aim is to secure legal and policy change that ends homelessness. As a result, they were concerned that including homelessness in law as a protected characteristic alongside immutable characteristics such as race, could affirm its position as a permanent feature of society.”

This mirrors our position about prostitution. We believe that people involved in prostitution should be better protected, that prostitution is not inevitable, and that it would not exist in a society that embodied true equality between the sexes. We are concerned that including “sex workers” as a protected characteristic under hate crime law alongside immutable characteristics such as race would legitimise and normalise prostitution and position it as a form of normal work and that this would affirm its position as a neutral and permanent feature of society and would therefore inevitably lead to an increase in vulnerable people being drawn into it and of men buying sex.

Prostitution is a profoundly gendered phenomenon. The vast majority of those involved in prostitution are female and almost all sex buyers are male.

There is a well-funded lobby advocating the view that prostitution is a form of normal work, that it is not inherently harmful, that it is completely separate from sex trafficking, and that women freely choose it. However, the facts do not bear this out.

Prostitution and sex trafficking cannot be separated in practice. There is no separate market for trafficked women and girls. They are on the same street corners and in the same brothels and ‘massage parlours’ and are bought by the same men as women who may have made some kind of choice to be there. But of the women who do make some kind of choice to be there, most do not make the choice out of a range of viable options but rather to escape poverty or homelessness, to feed a drug habit, under the coercion of someone who feeds off her prostitution, or because she has been groomed by our sexist culture to accept a life of objectification and service to men’s needs rather than her own.

The Women’s Budget Group has shown that every budget since 2010 has impacted unfairly on women, particularly lone mothers, and migrant and disabled women, and has therefore deepened the inequality between the sexes. As a result, large numbers of women are in desperate poverty and increasing numbers of women are turning to prostitution as a last resort against destitution and this has got worse as a result of the economic fallout of the measures taken against COVID 19. The same forces are making it increasingly difficult for women to leave prostitution.

This is a catastrophe for women and is the result of sexist policies and a failure of the mechanisms (such as the public sector equality duty) that are supposed to promote equality between the sexes in this country.

Prostitution can never meet even the most basic workplace health and safety standards. A study conducted by the UCL Institute of Health found that violence is a prominent feature in the lives of women involved in prostitution regardless of setting; a single year of engagement is likely to have the same impact on mental health as an entire life of experiences prior to involvement; and social exclusion is the leading cause of entrance and is often deepened as a result of engaging in it. This is borne out by testimony from survivors and support workers.

A US study found that prostituted individuals face a murder rate 18 times higher than non-prostituted individuals and a study in Canada estimated that their mortality rate was 40 times higher than the national average.

It is clear to us that prostitution is intrinsically violent and can never be made safe. Creating a new protected characteristic of “sex worker” for the hate crime legislation would therefore be like treating syphilitic lesions with Elastoplast.

Instead, public policy and legislation should focus on providing women with real alternatives, cracking down on pimps and traffickers, and making it clear to men that buying sexual access to women has no place in a modern democratic society that strives for equality between women and men.

There is a considerable body of research that shows that prostitution serves to strengthen men’s entitlement and all the other attitudes that underpin male violence against women and children – so anything that normalizes prostitution would not only lead to an increase in prostitution and therefore more harm to the women involved, but would also indirectly lead to an increase in male violence against women and children in the general population.

This understanding can only lead to the view that prostitution is a form of gender-based violence and is both a cause and a consequence of women’s persisting inequality.

This understanding has substantial mainstream support and is implicit in a number of human rights instruments, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the 1949 United Nations Convention on the Suppression of the Trafficking in Persons and of the Exploitation of the Prostitution of Others, and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (the Palermo Protocol).

The Scottish, Welsh and Northern Ireland governments all implicitly or explicitly recognise prostitution as a form of gender-based violence and on 9 December 2020 Dame Diana Johnson MP introduced a Nordic Model-style Sexual Exploitation Bill into Parliament with considerable cross-party support.

It would be unconscionable therefore that prostitution should be officially sanctioned as a form of normal work and an acceptable solution to women’s poverty, which would be the practical implication of making “sex workers” an explicitly protected characteristic under the hate crime legislation.

Instead violence and abuse against those involved in prostitution should be treated as an extreme form of misogynistic, racist, homophobic or transphobic hate crime where appropriate and the victims treated as particularly vulnerable – while the Government’s focus should be on reducing the size and legitimacy of the system of prostitution while providing support and alternatives to those caught up in it, and on addressing all the factors that drive vulnerable people, particularly women, into it.

Summary Consultation Question 5

We provisionally propose that the current legal position – where the commission of a hate crime can be satisfied through proof that the defendant demonstrated hostility towards a protected characteristic of the victim – should be maintained.

Do you agree?

No.

Misogyny, sexist and racist attitudes are so embedded in our culture that they can seem normal and so would not necessarily appear to be ‘hostile.’

Hostility is a feeling that can be justified in certain circumstances – for example, it is normal for people who have been subject to abusive treatment to express hostility and related emotions, such as anger and resentment, towards the perpetrators. Many women and girls who have been subject to serious or persistent male violence may feel angry towards men. It would be wrong to interpret this as hate crime and penalise them for it through a hate crime conviction.

Furthermore, we do not believe that people’s thoughts and feelings should be policed. What is important is how people behave.

As we have mentioned in our answers to earlier questions, we believe that the focus of the hate crime legislation should be on ending the impunity for behaviour that serves to maintain the exclusion and subordination of groups based on immutable characteristics (such as women, Black, Jewish and minority ethnic groups) that have historically been subject to systemic discrimination, exclusion and oppression.

The test should be whether the behaviour serves to keep members of these groups excluded and subordinated; whether the behaviour serves to uphold the perpetrator’s relatively privileged position; whether the behaviour is exploiting the historical disadvantage of the victim (as a member of a protected group) to further the perpetrator’s own individual and collective position; and whether it is conceivable that the perpetrator would have treated someone they considered an equal in that way.

Such considerations would recognise that behaviour towards individuals with protected characteristics has an impact that goes beyond that individual and it would cover, for example, members of one disadvantaged ethnic group using racist behaviour against another disadvantaged ethnic group, and indeed, women against women.

It would make it clear that men calling out sexist slogans at a passing young woman in the street or rubbing up against her on the train is unacceptable and has a chilling effect on all women – whereas women discussing how to bring about change to the patriarchal system that so disadvantages them would not be considered hate crime or speech regardless how angry and hostile some of those women might be at men.

It would mean that the hate crime legislation could no longer be used against a traumatised asylum seeker as in the appalling and disturbing case example set out on page 83 of the consultation paper.

Similarly, such an approach would make it clear that someone refusing to stand aside on a bus to make room for a wheelchair is quite different from a wheelchair user displacing a standing passenger – regardless of the feelings of the individuals involved and whether those feelings include “hostility” at the other.

This approach would also cover the criminal exploitation of disabled people or of women and girls based on a fundamental disregard for them as full human beings and members of the community.

Summary Consultation Question 6

We invite consultees’ views as to whether the current motivation test should be amended so that it asks whether the crime was motivated by hostility or prejudice towards the protected characteristic.

As we explained in the answer to the previous questions, we do not believe that people’s thoughts and feelings should be policed. And we believe that the focus of the hate crime legislation should be on ending the impunity for behaviour that serves to maintain the exclusion and subordination of groups (based on immutable characteristics) that have historically been subject to systemic discrimination, exclusion and subordination.

The test should be whether the behaviour serves to keep members of these groups excluded and subordinated; whether the behaviour serves to uphold the perpetrator’s relatively privileged position; whether the behaviour is exploiting the historical disadvantage of the victim (as a member of a protected group) to further the perpetrator’s own individual and collective position; and whether it is conceivable that the perpetrator would have treated someone they considered an equal in that way.

Such considerations would recognise that behaviour towards individuals with protected characteristics has an impact that goes beyond that individual and it would cover, for example, members of one disadvantaged ethnic group using racist behaviour against another disadvantaged ethnic group.

It would make it clear that men calling out sexist slogans at a passing young woman in the street or rubbing up against her on the train is unacceptable and has a chilling effect on all women – whereas women discussing how to bring about change to the patriarchal system that so disadvantages them would not be considered hate crime or speech regardless how angry and hostile some of those women might be at men.

It would mean that the hate crime legislation could no longer be used against a traumatised asylum seeker as in the appalling and disturbing case example set out on page 83 of the consultation paper.

Similarly, such an approach would make it clear that someone refusing to stand aside on a bus to make room for a wheelchair is quite different from a wheelchair user displacing a standing passenger – regardless of the feelings of the individuals involved and whether those feelings include “hostility” at the other.

This approach would also cover the criminal exploitation of disabled people and women and girls based on a fundamental disregard for them as full human beings and members of the community.

Summary Consultation Question 11

Do you think that a wider group of characteristics should be protected through the process of sentencing? If yes, should this be achieved by:

  • A residual characteristic in statutory enhanced sentencing; or
  • Sentencing guidelines?

We think that any crime against a vulnerable person is particularly egregious and this should be reflected in sentencing guidelines. Who counts as a vulnerable person should include but not be limited to homeless people, those involved in prostitution, and members of minority groups.

We very strongly recommend that the term “sex worker” is not used for all the reasons that we explain in our answer to question 4.

Summary Consultation Question 13

Where it cannot be shown that the defendant intended to stir up hatred, we provisionally propose that the offences should cover only “threatening or abusive” (but not “insulting”) words or behaviour likely to stir up hatred.

Do you agree?

We do not believe that trivial words and behaviour should be criminalised. However, misogyny, and sexist and racist attitudes are so embedded in our culture that they can seem normal and even trivial, and we are not sure that words and behaviour that should be covered by the legislation would necessarily appear to be ‘threatening and abusive.’

For example, until relatively recently, male MPs would frequently gesture like they were weighing their breasts when women spoke in Parliament. Thankfully, things have changed as more women have entered Parliament and it seems that this no longer happens. However, similar examples are likely to persist elsewhere.

Is this type of behaviour likely to be deemed “threatening or abusive”? Perhaps not.

However, it is a form of serious harassment that is targeted at women because they are women and it would have the effect of reducing the credibility not only of the woman standing to speak but of all women. It would strike terror into the hearts of women watching as they saw how men at the centre of power so deeply disrespected them and their needs and opinions and would inevitably lead to fewer women stepping forward for public office. And it would legitimise the exclusion of women from an equal share of power and public resources. We therefore believe it should be covered by the hate crime legislation.

As we have mentioned in our answers to earlier questions, we believe that the focus of the hate crime legislation should be on ending the impunity for behaviour that serves to maintain the exclusion and subordination of groups based on immutable characteristics (such as women, Black, Jewish and minority ethnic groups) who have historically been subject to systemic discrimination, exclusion and subordination.

The test should be whether the behaviour serves to keep members of these groups excluded and subordinated; whether the behaviour serves to uphold the perpetrator’s relatively privileged position; whether the behaviour is exploiting the historical disadvantage of the victim (as a member of a protected group) to further the perpetrator’s own individual and collective position; and whether it is conceivable that the perpetrator would have treated someone they considered an equal in that way.

Such considerations would recognise that behaviour towards individuals with protected characteristics has an impact that goes beyond that individual and it would cover, for example, members of one disadvantaged ethnic group using racist behaviour against another disadvantaged ethnic group.

It would make it clear that men calling out sexist slogans at a passing young woman in the street or rubbing up against her on the train is unacceptable and has a chilling effect on all women – whereas women discussing how to bring about change to the patriarchal system that so disadvantages them would not be considered hate crime or speech regardless how angry and hostile some of those women might be at men.

It would mean that the hate crime legislation could no longer be used against a traumatised asylum seeker as in the appalling and disturbing case example set out on page 83 of the consultation paper.

Similarly, such an approach would make it clear that someone refusing to stand aside on a bus to make room for a wheelchair is quite different from a wheelchair user displacing a standing passenger – regardless of the feelings of the individuals involved and whether those feelings include “hostility” at the other.

This approach would also cover the criminal exploitation of disabled people or of women and girls based on a fundamental disregard for them as full human beings and members of the community.

Summary Consultation Question 16

We provisionally propose that:

  • the current protections for discussion of religion and sexual orientation should apply to the new offence of stirring up hatred;
  • similar protections be given in respect of transgender identity, sex/gender and disability.

Do you agree and if so what should these cover?

Yes. Women and people from Black, Asian and other disadvantaged ethnic groups MUST be able to discuss and analyse the ongoing historical and systemic oppression that they have been subjected to without it being interpreted as hate crime against men and white people.

Similarly, there need to be strong and clear legal protections that allow the discussion of gender and the implications of men being able to “self-identify” as women and how this impacts women’s and girls’ rights – without it being interpreted as an attack on transgender people.

For example, a transgender prisoner was accused of sexually assaulting four female inmates and exposing his erect penis within days of arriving at a women’s prison. To frame women’s legitimate concerns about the impact of such situations as transphobia, particularly when they concern women and girls at their most vulnerable, is as inappropriate as framing a sincere critique of transubstantiation or male cultural dominance as religious or sexist hate crime.

Similarly, if the characteristics protected under hate crime legislation are extended to cover homeless people, “sex workers” and members of subgroups etc., strong and clear legal protections must be made to allow discussion of the causes and harms of homelessness and prostitution and their role in the maintenance of the subordination of women and other vulnerable groups, and the philosophy and practices of the protected subgroups etc.

Summary Consultation Question 17

We provisionally propose that racist chanting at football matches should remain a distinct criminal offence.

Do you agree?

Yes

Summary Consultation Question 18

We provisionally propose that the offence in section 3 of the Football (Offences) Act 1991 should be extended to cover chanting based on sexual orientation.

Do you agree?

We also seek consultees’ evidence on the prevalence of discriminatory chanting targeting characteristics other than race and sexual orientation, and would welcome views on whether the offence should be extended to cover all protected characteristics.

Yes. It should also be extended to cover misogynistic chanting. Victoria Beckham talked about this in her autobiography and gave the example of “Posh Spice takes it up the arse” being chanted at football matches when her husband was present.

Such behaviour clearly amounts to discrimination against women and girls and as such the Government must ban it in order to comply with CEDAW. We explain this more in our responses to previous questions.

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Download this paper as a PDF that is formatted with references suitable for copying into the consultation form rather than hyperlinks.

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