By Rebecca Bocchinfuso – Director of Amicus
Imagine a world where love is trumped by hate, what would that look like to you? Perhaps you would imagine a dystopian world in another dimension where everyone is intolerant of one another, where people celebrate their hatred for one another in holy matrimony. However, if you are a member of the LGBTQ+ or the Black, Asian and minority ethnic community, you might not have to use your imagination at all but instead describe a modern 21st century society.
The CPS guidelines indicate that it is in the public interest to prosecute those who have committed an offence who is motivated by a person’s sexual or gender identity, yet there is no aggravated offence for a hate crime committed against the LGBTQ+ community in England and Wales.[1] The criminal law is more than capable of intervening and condemning behaviours which harm a person for who they are or what they personally believe. In fact, it already has been done in the Crime and Disorder Act 1998 s. 28 which stipulates that an aggravated offence is committed when the offender demonstrates hostility or is motivated by hostility towards members of a racial or religious group.
By contrast, the procedure for crimes motivated by hate for the LGBTQ+ community have a much different process in the criminal law. Crimes committed are reported and subsequently flagged by the Crown Prosecution Service (CPS) as being classified as involving homophobic, biphobic or transphobic conduct. Cases identified in this regard puts the CPS on notice that the case has been flagged for having an element of hostility based on sexual orientation or gender identity. In order for this element to be considered as an aggravating factor at sentencing, it must be flagged by the CPS or the prosecutors, and there must be sufficient evidence put forth to substantiate the claim.[2] The Sentencing Act 2020 s. 66 imposes a duty upon the courts when considering the seriousness of an offence to treat the offender’s hostility towards the victim based on sexual orientation or gender identity or where the offender is motivated by hostility towards someone based on their gender identity or sexual orientation as an aggravating factor.
While the law does make a clear point to require the courts to consider homophobic, biphobic and transphobic behaviour in the sentencing of offenders, the lack of an explicit law which discourages such behaviour is concerning. Why is having such a law important? The law shapes the minds of the masses in informing them on what is morally unacceptable, and in failing to have such a law that explicitly condemns such behaviour, it sends a resounding message to society.[3]
A study done in 2018 indicated that 68% of the respondents avoided holding hands in public with their same-sex partner out of fear of the public.[4] Over 50% of trans men and women respondents avoid expressing their gender identity out of fear from the public’s reaction.[5] Additionally, homophobic behaviour has largely gone underreported out of a genuine fear of a lack of concern from the police.[6] This indicates a serious problem, as individual autonomy is being curtailed by the fear of a deficiency in public protection. The result is that LGBTQ+ individuals are not able to enjoy the same freedoms as their heteronormative counterparts.
So, the question remains, why has the British government not taken the step of creating explicit legislation which allows for an aggravated offence for hate crimes against the LGBTQ+ community?
[1] Crown Prosecution Service, ‘Homophobic, Biphobic and Transphobic Hate Crime- Prosecution Guidance’ (CPS, 3 March 2022) <https://www.cps.gov.uk/legal-guidance/homophobic-biphobic-and-transphobic-hate-crime-prosecution-guidance> accessed 30 November 2022. [2] Crown Prosecution Service, ‘Homophobic, Biphobic and Transphobic Hate Crime- Prosecution Guidance’ (CPS, 3 March 2022) <https://www.cps.gov.uk/legal-guidance/homophobic-biphobic-and-transphobic-hate-crime-prosecution-guidance> accessed 30 November 2022.. [3] M.A. Walters, A. Owusu-Bempah and S. Wiedlitzka, ‘Hate Crime And The ‘Justice Gap’: The Case For Law Reform’ [2018] Crim. L.R. 12 at 961, 973. [4] Penny Mordaunt, ‘National LBGT Survey’ (Government Equalities Office, July 2018) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/722314/GEO-LGBT-Survey-Report.pdf> accessed 30 November 2022. [5] Penny Mordaunt, ‘National LBGT Survey’ (Government Equalities Office, July 2018) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/722314/GEO-LGBT-Survey-Report.pdf> accessed 30 November 2022. [6] Penny Mordaunt, ‘National LBGT Survey’ (Government Equalities Office, July 2018) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/722314/GEO-LGBT-Survey-Report.pdf> accessed 30 November 2022.
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