The covid-19 pandemic has led to a raft of unprecedented legal and regulatory ramifications for the UK and other nations. One aspect of the crisis, the fuelling of hate crime, has received heightened attention following outrage at US President Donald Trump’s dubbing of the virus as the “Chinese coronavirus”. However, unlike other, novel components of the covid-19 crisis, hate crime has been firmly on the legal reform agenda for some time. Indeed, the recent prevalence of hate crime reports has highlighted the scale of this issue, and coincided with efforts by the Law Commission to lead reform of the legal framework in England and Wales.
Covid-19 and hate crime
In an article in The New Yorker on 17 March 2020, Mike Ainsworth – the director of London services at Stop Hate UK – advised that his organisation had observed a spike in hate crimes and incidents reported by Asian communities and individuals in the UK.
“There has been, for our helpline, a significant increase in calls from the Chinese community,” he said. “The incidents range from name calling, through to spitting, through to someone having been pushed in the road in the path of oncoming vehicles.”
Historically, pandemics have been associated with intensifying fears of “the other” and escalating racist myths about foreigners and discrimination against minorities. Danielle Olson of the Wellcome Trust said that covid-19 had given rise to “these kinds of informal ideas that it’s anything to do with your race rather than where you happen to have travelled from.” She added that this “inflammatory language, or alarmist rhetoric, happens so quickly, and is not based on any facts.”
Hate crime incidents connected with the covid-19 crisis have also transpired overseas. On 24 March 2020, Time reported that in New York, a man on the subway had sprayed an Asian passenger with Febreze and verbally abused him. Moreover, the Anti-Defamation League, which tracks hate groups, was noted to have blamed the virus for increasing racist and anti-Semitic messages, including suggesting that Jews are somehow responsible for the pandemic. In New York, as part of the response to the pandemic, State Attorney General Letitia James has set up a hotline for people to report hate crimes.
In this context, Trump’s dubbing of the virus as the “Chinese coronavirus” - even as scientists say the disease has nothing to do with Asian ethnicity - is not only racist but highly inflammatory, dangerous and irresponsible. However, the Associated Press reported that when asked whether the term put Asian Americans at risk: “no, not at all. Not at all. I think they probably would agree with it 100%. It comes from China.”
The hate crime framework in England and Wales
In England and Wales, the approach to developing a hate crime framework – dating back to original reforms in 1986 – has been very piecemeal. The current legislation encompasses 5 protected characteristics – race, religion, sexual orientation, disability and transgender identity. However, the framework has been described as a “hierarchy of hate”, because the characteristics have varying degrees of protection afforded across the three main forms of hate crime laws – aggravated offences (Crime and Disorder Act 1998); stirring up hatred offences (Public Order Act 1986) and enhanced sentences (Criminal Justice Act 2003).
For example, 11 offences can be charged as separate racially or religiously aggravated offences, with a higher maximum penalty than the baseline offence. However, these offences cannot be aggravated by hostility on the grounds of sexual orientation, transgender identity and disability. Moreover, for stirring up hatred offences, transgender identity and disability are – again – not captured. Whereas the offence of stirring up racial hatred is satisfied by conduct that is “threatening, abusive or insulting” and “intended to or likely to stir up hatred”, stirring up religious or sexual-orientation based hatred has a higher threshold, as it must be “threatening” and “intended to stir up hatred”. In addition, the religious and sexual-orientation based stirring up hatred offences are subject to freedom of expression exemptions – which the race-based provisions are not.
The Law Commission is currently undertaking a wide-ranging review of hate crime laws in England and Wales, and a consultation paper is due out later in 2020. Key considerations will undoubtedly relate to the different treatment of protected characteristics, as well as the structure of the hate crime-focused laws and how they fit together. However, the longer-term impact of the covid-19 pandemic on the occurrence of hate crime and suggested reforms remains to be seen.
Rebecca Cohen is a pupil barrister at chambers and was formerly a research assistant at the Law Commission. For further information about the hate crime framework and potential reforms, please see an earlier article, co-written with Martin Wimpole and published in the Archbold Review: “Reforming Hate Crime Legislation - The Law Commission’s Current Review”.