Law-mophobia

The murder of a Ugandan activist, the trial of a teenage girl in London and leaflets outside a mosque in Derby… On the face of it, these three stories don’t seem to have much in common.

But when you look more closely at the circumstances of each of them, it’s a different story altogether…

In Uganda, a man was beaten to death with a hammer in front of his doorstep. What would be a gruesome murder anyway takes a different dimension when you know that the victim, David Kato, was an activist campaigning for gay rights in Uganda, and who had become famous after he sued a paper for outing him.

In London, a teenage girl was sentenced for the manslaughter of a 62 year-old man, along with her boyfriend. The incident happened in central London on a Friday night after the two had been drinking and the girl shouted at the man that he was a ‘fucking faggot’ before they attacked him. They were both convicted of manslaughter, and she was sentenced to an extra year in prison because the court decided the attack was homophobic.

In Derby, men were in court last week over leaflets they distributed outside their local mosque. An innocent enough activity, except for the fact that the leaflets were entitled “The death penalty?”  and called for the execution of homosexuals. They were charged with inciting hatred on the grounds of sexual orientation and will be tried next week by Derby’s Magistrates’ Court.

The link is hopefully (and sadly) obvious by now, and the interesting question in relation to the criminal law is this: how does the criminal law deal with intolerant and homophobic people?


One of the founding principles of criminal responsibility is that you can’t be found guilty of a crime just because of what you might think. You can think about murdering people as much as you want (although you might want to consult a doctor if that happens too often…) but it’s only if you start acting on it that it becomes a problem for the law.

Stirring up hatred…

One limit to that principle is when you are not only thinking but also speaking and promoting opinions which are intolerant of others and might encourage violence. Since 1965, offences have existed to punish inciting ‘racial hatred’, which is defined as hatred of a group of people defined by reference to their “colour, race, nationality or ethnic or national origins”. it also became an offence to stir up  “hatred against a group of persons defined by reference to religious belief or lack of religious belief”.

However, it took over 20 years before inciting hatred based on religion or sexual orientation became a criminal offence too. So, since 2008, the communication or publication of homophobic ideas (the law recognises hatred against heterosexuals too but it’s an unfortunate reality that most of it will be directed towards lesbian, gay and bisexual people…) can be a criminal offence, just like stirring up racial and religious hatred. The Derby leaflet case is the first time that this new offence has been used and five men will be tried for it later this month.

The only difference is that behaviour or comments about sexual orientation have to be threatening, whereas for racial and religious hatred, it doesn’t have to be threatening but can be abusive or insulting. So an insult about being gay or catholic is not a crime, but an insult about being jewish or black could be.

Aggravation?

Another way homophobia can be punished is when the judge decides on a sentence. This was the case for Ms Thomas, the young woman who was convicted of manslaughter in the second example above. In all offences, the judge has the power to increase a sentence if the person found guilty of a crime either:

  • showed hostility towards the victim because of his sexual orientation at the time of the act, or
  • the act was motivated partly or wholly by a hostility towards people with a particular sexual orientation.

Here the judge decided that Ms Thomas’ attitude and her words of ‘fucking faggots’ showed hostility towards the Mr Bainham because of his sexual orientation and that it had caused her to act as she did when she kicked the victim.

But her lawyer and her mother say that she didn’t have any hostility towards gay people. According to them the insults she used were only because the men paid no attention to her drunken attempt at seduction and she just meant that they must be ‘faggots’ if they weren’t interested in her.

Which brings us back to the problem of making thoughts criminal and to one of the biggest problems in criminal trials in general: how can you tell what someone think, let alone whether it’s criminal or not?

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