Back in September 2011, the Equality and Human Rights Commission published a very important report, ‘Hidden in Plain Sight‘, which looked into issues of disability-related harassment. The findings of the Report make for disheartening reading. I will not hide the fact that the Report, Part 2 especially, where ten serious cases of disability hate crime are described, gave me – and still does – the howling fantods. The gist of the report for me is that harassment is very common and that something has to be done about it.
But I won’t make the mistake of supporting this claim, without explaining it a bit. I think we cannot understand disability hate crime without some analytical tools, concepts such as the social model of disability and disablism. My understanding of disablism is not very different than that of other writers in disability rights. Disablism is treating someone as inferior because of her disability. However, this is not the complete picture. If I call someone the R-word, am I displaying a disablist sentiment? Undoubtedly, but this conclusion does not follow logically from the definition of disablism I just cited. Disablism has also to be understood in connection with the social model of disability. If I am displaying attitudes , engaging in behaviour, reproducing stereotypes that commonly used to preclude the full and equal participation of persons with disabilities in society, then I am displaying disablist conduct. Calling someone the R-word is not simply about treating someone as inferior, but it also perpetuates a negative stereotype for persons with intellectual disability which reinforces their social exclusion of mainstream society. Therein lies the harm of disablist speech. It is a different matter entirely if we decide that this harm outweighs the right to free speech.
This may sound like hair-splitting. It may also be very obvious to disability activists. Personally, I had to work my head around this in order to construct an argument that involves a more complete understanding of disability hate crime.
Turning to the Law Commission’s Consultation on extending hate crime offences to cover disability, sexual orientation and gender identity, which can be found here, it is important to note that the questions that the Law Commission can look into are rather limited. The question basically boils down to this: English law has created aggravated offences of hate crimes, as well as an offence of incitement to hatred for some protected categories. Should the existing criminal law be extended to cover disability, sexual orientation and gender identity?
The answer, from a legal, disability rights perspective, is unequivocally yes. Despite the problems which have been noted in enforcing existing hate crime legislation, in the limited remit that this Law Commission Consultation has, the message has to be that Parliament should protect persons with disabilities more against hate crime.
I am focusing on disability here, not because I do not think that the other characteristics of sexual orientation and gender identity should not be protected, but because the claim for the fuller protection against disability hate crime is much stronger in legal terms. In moral terms, my deeply held belief is that protection against hate crime is required for any group of persons that is targeted because of its ‘otherness’, because of its difference. But in legal terms, the case of disability is much stronger because there is the Convention on the Rights of Persons with Disabilities.
Consider Art. 16 CRPD: Freedom from exploitation, violence and abuse. Section 5 requires states to adopt effective legislation and policies to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and prosecuted. This legal provision does not leave any room for wishy-washy responses to hate crime.
This point is extremely important for the more controversial offence of incitement to hatred, which is unacceptable for the hard-core liberals among us, who believe that freedom of speech is (near) absolute.
Some analysis of the issue of the right to free speech is required, before I proceed. The hard-core approach to freedom of speech is out of tune with the current legal paradigm of the CRPD. Art. 8 CRPD imposes an obligation on states to encourage all organs of the media to portray persons with disabilities in a manner consistent with the purpose of the CRPD. I am actually very glad to see that this matter is currently taken up by the current Hate Crime Action Plan. Of course,neither the CRPD nor I advocate criminal sanctions in enforcing this obligation. But it goes to show you that freedom of speech has certain limits, and that limit in relation to disability is not portray persons with disabilities in a negative light, inconsistent with the social model of disability and the CRPD. Immediately, we can understand how crucial this provision is in relation to the ‘benefit scroungers’ debate.
Based on Art. 8 CRPD, it simply is not convincing any more to claim that we will be violating the right to free speech by extending the protection of incitement to other categories, such as disability. The limits to free speech are being drawn, indirectly, towards protecting persons with disabilities.
So, my final point is this: the paradigm of protection in international human rights law has changed. The CRPD has ushered in a very different approach to the issue of human rights for persons with disabilities. Art. 16 CRPD demands a very comprehensive and effective protection against abuse and violence for persons with disabilities, whilst Art. 8 CRPD shows, indirectly, that some lines have to be drawn as to what can be contributed in public discourse about disability. This change in how we understand and protect the human rights of persons with disabilities should also benefit persons from other targeted groups, such as sexual orientation and gender identity.