Homophobic Violence from A Legal Perspective

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Every human being is an “embodied and bounded self” having thus the right to bodily autonomy and integrity.  The naturalistic view of the person renders individuals as rational human beings who are endorsed with the capability of bodily autonomy and in need of protection of their bodily integrity, described as the “essential right to physical self-government.”(J. Jones, A. Grear, R.A. Fenton and K. Stevenson (eds), 'Gender, Sexualities and the Law' (Routledge, 2011)) The role of the law is therefore to preserve that right instead of trying to control or scrutinise the sexual experience and behaviour of either homosexual, in particular, or heterosexual people.

Homophobic violence, at its barest essentials, is a crime committed on the basis of discrimination and prejudice of sexual orientation.  Homophobia has been described as a “psychological condition that is involuntary and irrational but denies a role for wider societal causes for the bias-related harassment faced by gay men and lesbians” and is motivated by fear, prejudice and hatred.

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Violent acts motivated by heterosexism or homophobia reflect “the hatred and stigma felt towards women and men whose sexuality falls outside of acceptable boundaries.”(Stephen Tomsen and Gail Mason, “Endangering Homophobia: Violence, Sexuality and Gender Conformity” (2001) 37 Journal of Sociology)  The perspective of society and the legislation regulating homophobic violence acts had been dealing with this aspect of sexual preference with a discriminatory and harsh manner.

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Historically, the hostility and prejudice towards homosexuality emanated from the narrow-minded patriarchal views about the stereotypical roles of gender, that is the male domination over other secondary forms of sexual identity.  One of the factors that presumably conformed such hostile behaviour was the assertion that diseases, such as AIDS, were originally created by homosexual acts. They even advocated that homosexuality itself was a mental condition that needed treatment. However, such assumptions were not based on empirical evidence, making it objectionable to justify homophobic hostility on these grounds.

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Research studies analysed the behaviour of and the impact on homosexual people who have been subjected to harassment. They argue that LGBT people display a lack of confidence and trust in police services in reporting violent attacks. This may be due to a sense of social scrutiny and invasion of the private life of individuals.

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The historical development of the law regarding homosexuality reveals some improvement towards the acceptance of different sexual identities. The Committee of the Home Office and Scottish Home Department, chaired by Sir John Wolfenden, recommended the decriminalisation of homosexual acts in public and in private. Their aim was the fundamental freedom of sexuality "to the degree that was politically realistic or generally desirable" at the time (Wolfenden report 1957).

With the introduction of section 146 of the Criminal Justice Act 2005, courts have a statutory obligation to take into account whether the perpetrator demonstrated or was motivated by hostility towards their victims on the basis of their sexual orientation. In addition, the Criminal Justice and Immigration Act 2008 with section 74, amended Part 3A of the Public Order Act 1986 to include a similar provision for hatred against people based upon their sexual orientation. The Sexual Offences Act 2003 reflects a milestone which effectively ended discriminatory law punishing certain homosexual activities.

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Nevertheless, despite the legislative improvements that generated through the battle of homosexuality to be treated equally with heterosexuality, the various social perspectives have not achieved this goal yet and made minimal efforts to promote gender equality and multi-sexuality conformity.

In conclusion, the motion of homophobic or anti-homosexual violence is enrooted in the patriarchal, religious and other narrow-minded values of excluding the diversity of sexualities. The concept of homophobic violence goes beyond aggressive and hostile behaviour towards another person. It expands to affect the true identity of the person while aiming at setting boundaries on what is acceptable conduct in one’s personal life and what is prohibited. The need for homosexual people to enjoy their preferences with others is as humanly essential as the right to privacy, the right to freedom of expression or even the right to life; rights which have been recognised years ago to be enjoyed by all human beings.

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