Hate Crime or Freedom of Expression?

by | Nov 30 2020 | Discrimination

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Hate Crime | Read Time 5 Minutes. 

Devils in disguise or freedom of speech advocates?

That’s so gay.

Stop acting like such a poof.

Of course she was going to be a lesbian, she was a tom boy at school.

Sound familiar? Unfortunately it probably does. History has a habit of impacting upon the way we think and the things we say. Despite years having passed and acceptance of LGBT people becoming more normal, hate crime still persists on playgrounds and in households and offices across the country.

But do these comments constitute a hate crime? Are they only a hate crime if a person is offended? Or are they examples of free speech at its finest?

Today’s ‘cancel’ culture means it’s all too easy to cause offence, or dish out nasty comments. Just ask Tom Daley who faced hateful comments even from within the LGBT community.

So what exactly is the difference between an angry snub fuelled by hatred, and a polite expression of distaste?

 

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The makings of an LGBT hate crime

Let’s start where all good stories begin: In 1986.

That was the year the Public Order Act was passed in the UK, which stated:

“It is an offence for a person to use threatening, abusive or insulting words or behaviour that causes, or is likely to case, another person harassment, alarm of distress.”

Public Order Act 1986

However, when the Public Order Act was first passed, harassment against individuals on grounds of their sexual orientation wasn’t originally included.

While harassment on grounds of religion and race were introduced in 1988, it wasn’t until 2003, under the Criminal Justice Act 2003, that homophobia, biphobia and transphobia were added to the list.

 

So what constitutes a hate crime?

1. There must be at least ones victim

2. The victim must identify as being LGBT, or the offender through that they were ( even if they were)

3. The offender showed hostility towards the victim based upon the victim’s sexual orientation or presumed sexual orientation: this can be verbal or physical.

4. The hostility must have been shown during or immediately before or after the offence ocurred.

5. If there was more than one offender, there needs to be evidence that each offender demonstrated hostility.

 

But it doesn’t stop there. There are a slew of other laws that have come into force both before and after the Criminal Justice Act was introduced. While not all specifically aimed at protecting the LGBT community from hate speech, their uses have evolved to do so:

  • Human Rights Act 1998. Protected everyone’s rights to be treated as equals.
  • Communication Act 2003. Criminalised the sending of obscene messages online.
  • Gender Recognition Act 2004. Protected the rights of trans people.
  • Terrorism Act 2006. Criminalised the encouragement of all forms of terrorism.
  • Update to the Criminal Justice and Immigration Act. Criminalised the incitement of homophobic hatred.
  • Update to the Public Order Act in 2010. Amended to include hatred on the grounds of sexual orientation.
  • Update to the UK Football Offenses Act 1991. Banned homophobic chanting at football matches.

 

 

Hate Crime: So, When is Freedom of Speech Applicable?

Good question.

The freedom to say what you want, when you want and to who you want was introduced back in 1998 under the aforementioned Human Rights Act.

The act stated that everyone in the UK was to be granted the freedom of expression, however it may be subject to:

“Formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society.
Any restrictions may be in the interest of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Human Rights Act 1998

 

With such an abundance of legal protection in place, how is it possible that hate crimes still happen? The answer is that there’s a huge grey area in what counts as hate speech, and what counts as freedom of speech.

If you believe that you have been the victim of a hate crime, whether LGBT focused or not, we at the LGBT Lawyers are here to support you. If you think a hate crime has occured, but you’re unsure, we can provide you with an untimed consultation where you can tell us all about your case and we can give you some guidance. We also have a legal areas page for information on a large variety of legal areas.

Come to our Brighton and Hove office or check out our contact page for our details.

 

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