Muslims, the LGBT community and anti-hatred laws

Homophobic sticker Tower Hamlets2Julie Bindel, Paul Burston and the other signatories to the statement reported in today’s Guardian start from a position of understandable resentment that Mohammed Hasnath, who was convicted last week of posting up “gay free zone” stickers in Tower Hamlets, received such a light sentence, but they wilfully misrepresent the reasons for this.

They write: “There is a strong feeling that homophobia is being covered up, or ignored, in order not to ‘endanger community relations’. The paltry fine issued by the court lends weight to this fear.” The suggestion here is that it would have antagonised Muslims in Tower Hamlets if Hasnath had received a heavier sentence, and that the police and Crown Prosecution Service decided to charge him with a minor offence out of concern for the feelings of the Muslim community. No evidence is offered for either claim, because none exists.

The statement then goes on to argue, contradictorily, that the real problem is that existing laws are inadequate to protect the LGBT community against incitement to hatred. This is in fact true. So how could the police and CPS have charged Hasnath with a more serious offence if no effective legal sanction against homophobic hatred exists? Concern about “endangering community relations” obviously had nothing to do with it.

Hasnath was charged under Section 5 of the Public Order Act, which criminalises the display of “any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby”. This is indeed a minor offence that only carries a fine. Rainbow Hamlets LGBT community forum urged the police and CPS to charge Hasnath under Section 4A, which criminalises “intentional harassment, alarm or distress” and carries a possible six-month prison sentence. However, 4A requires the prosecution to prove intent, which is almost impossible to establish in the absence of a confession by the accused. So the CPS evidently concluded that a prosecution under 4A would be likely to fail and charged Hasnath under Section 5 instead. They were concerned about securing a conviction, not about sparing the supposed feelings of Muslims.

Some critics within the LGBT community have asked why Hasnath was not charged with inciting hatred on the grounds of sexual orientation, an offence that was added to Section 29 of the Public Order Act by the Criminal Justice and Immigration Act 2008. This is an even more serious offence than 4A and carries a possible seven-year prison sentence. But to secure a conviction under the homophobic hatred law it is necessarily to prove not only intent, as in 4A, but also that the words or actions were “threatening”. The “gay free zone” stickers contained no actual threats, so a prosecution of Hasnath under that section of the Public Order Act would have failed too. Again, the CPS were constrained by their concern that they could not secure a conviction.

The statement’s signatories are therefore justified in demanding a change in the law so that the LGBT community receives the protection it is entitled to. But they can’t even get that right. In connection with Hasnath’s sentence they write: “Such a light penalty would be unthinkable if we were considering groups operating across UK to create Jew-free, Black-free, Muslim-free or Christian-free zones.” Bindel, Burston and their friends really need to do some basic research into existing anti-hatred law before they put out inflammatory public statements like this.

If stickers were posted up calling for a “Jew free” or “Black free” zone, then the response of the police and CPS would indeed be different, because it would be possible to prosecute the perpetrators under Section 19 of the Public Order Act, which states: “A person who publishes or distributes written material which is threatening, abusive or insulting is guilty of an offence if … having regard to all the circumstances racial hatred is likely to be stirred up thereby.”

Unlike the homophobic hatred law, as can be seen, the racial hatred law requires neither that the prosecution should prove intent (it only has to be shown that “racial hatred is likely to be stirred up”) nor that the written material that incites hatred should be threatening (it is enough that it should be “abusive or insulting”). The Jewish and Black communities do therefore have protection under the law that is denied to the LGBT community. So Bindel et al are partially correct here.

But what of the Muslim community, who are not covered by the racial hatred law (because Islam is held to be a multi-ethnic faith) and have to rely on the law against incitement to religious hatred? The reality is that the law against homophobic hatred is modelled on the earlier religious hatred law, which also requires proof of intent and that the defendant’s words or actions should have been threatening. This renders it largely useless as a means of protecting the Muslim community. Since it came into force in 2007 there has been one prosecution under the religious hatred law, of a BNP activist who distributed a leaflet accusing the Muslim community of responsibility for the heroin trade, and the defendant was acquitted because he denied his intention was to incite hatred and the leaflet did not include any explicit threats.

If an individual were caught posting up “Muslim free zone” stickers they would almost certainly be prosecuted under the same section of the Public Order Act as Mohammed Hasnath. The only difference would be that they could be charged with a “religiously aggravated” offence, which would at most result in a rather larger fine.

As for the claim that “a light penalty would be unthinkable if we were considering groups operating across UK to create … Muslim-free … zones”, what planet do these people live on? It seems to have escaped their attention that there is indeed an organisation, much larger and more vicious than any Islamist groupuscule to which Hasnath may have belonged, that has publicly campaigned for Muslim-free zones across the UK. It is called the English Defence League and its supporters have been allowed to carry out their hate-filled propaganda against the Muslim community largely with impunity.

The EDL have taken to the streets in their thousands brandishing placards with such slogans as “Every new mosque is a nail in Britain’s coffin”, “Britain does not welcome the religion of hatred” and “We will never submit to Islam” – yet no action has been taken against them, because this is held to be a legitimate exercise of free speech. Perhaps Bindel and her fellow signatories should ask themselves how they would feel if a mob of thuggish homophobes were allowed to organise demonstrations up and down the country with similar slogans directed against the LGBT community.

The fact is that the Muslim and LGBT communities have a common interest in campaigning for the law to be reformed so they have the same protection against incitement to hatred on the basis of religious affiliation or sexual orientation as those minority communities who are covered by the racial hatred law. Instead, Bindel and her friends are trying to set the LGBT community against the Muslim community by falsely claiming that the law discriminates in favour of the latter, thereby echoing the EDL’s own anti-Muslim propaganda. In short, they undermine the prospect of achieving any real change in the law while at the same time they give credibility to the lies of the far right.