As a lawyer I can't see how the Sam Kerr race charges could hold up
Opinion
They are the racial harassment allegations that have seen soccer fans across Australia, the UK, and around the world, lose their collective mind.
A London police officer alleges that the hugely popular Chelsea and Matildas striker Sam Kerr called them a “stupid white bastard” following a dispute over a taxi fare in Twickenham, south-west London, on January 30, 2023. She has been charged with intentionally causing racially aggravated harassment, alarm or distress to the officer under section 31(1)(b) of the Crime and Disorder Act 1998. The matter is due to go to trial to February 2025, if it is not dismissed earlier as an abuse of process.
Sam KerrCredit: AP
Yet, while the huge reaction to the charges against Kerr is understandable, as they do contain a reference to race, it’s worth looking at how they actually stack up.
First, calling a white person a “stupid white bastard” is not the same as calling a black person a “stupid black bastard”. As the Alberta Civil Liberties Research Centre explains, racial prejudice may be directed towards white people (e.g. as in “white people can’t dance” or “all white people are racists”) but it is not racism because the comment is not ingrained with a systematic abuse of power. That is, expressions of racial prejudice against a white person may hurt that person’s feelings, and are not to be condoned, but they do not have the power to affect the white person’s social, economic or political privileges.
As Tim Wise has explained, “If [Indigenous people] say whites are mayonnaise-eating Amway salespeople, who the hell is going to care? If anything, whites will simply turn it into a marketing opportunity. When you have the power, you can afford to be self-deprecating, after all.”
Second, to prove the charge against Kerr, the police will have to show (beyond a reasonable doubt) that Kerr: intentionally caused the police officer harassment, alarm or distress; did this by using threatening, abusive or insulting words or disorderly behaviour; and this conduct was racially aggravated. That is, around the time of the offence, Kerr demonstrated hostility towards the police officer based on his membership of a racial group (ie being white).
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One may seriously doubt whether Kerr intentionally caused the police officer harassment, alarm or distress and whether a police officer would usually feel harassed or distressed by such a comment. I suspect that many police officers would hear much worse on a daily basis.
The need to prove intention is also important. The relevant UK act contains a similar prohibition but without the need to prove intention. However, in that case, the police would have to prove that they warned Kerr to stop and she did not. In this instance, they do not allege any warning being given.
Of greater immediate importance, however, is the allegation that Kerr demonstrated hostility towards the PC based on the fact that he was white. Owing to the complete lack of historical or systematic disempowerment of white people, it is not self-evident that Kerr’s comment (if she did, in fact, say it) demonstrates a hostility towards the police officer because they were white. It is hard to imagine, given her position and her partially English background, that Kerr bears hostility towards white people generally. It seems more likely that Kerr felt she was being harassed based on her colour (she has Indian ancestry also) and responded in kind.
And yet the fact that Kerr is still facing this charge demonstrates one of the difficulties with the UK law: section 31 of the Crime and Disorder Act 1998 can potentially be used against the very people it is primarily designed to protect. The charges can be brought easily – including by the very police constable who claims to have been racially harassed. There is no legal requirement for those charges to be approved by the constable’s superiors or by the Crown Prosecution Service. Given the entrenched power imbalances even when (and perhaps because) the accused is a highly paid and well-known athlete, it means a white, male police officer can accuse a woman of Indian ancestry of racially motivated harassment. The world truly has been flipped on its head when this can occur.
If Kerr had engaged in this conduct in Australia it would have not constituted a criminal offence. Under section 18C of the Racial Discrimination Act 1975 it is unlawful to offend or insult a person (other than in private) because of the person’s race, colour or ethnic origin. However, infringement of this section may result in a complaint to the Australian Human Rights Commission, not a criminal charge.
I am Australian and a soccer fan. By definition, that means I am a Sam Kerr fan. Regardless, I do not think it is my prejudices speaking when I say that the charges against her say more about the UK system of justice than it says about whether Sam Kerr is a racist.
Marcus Hoyne is a barrister specialising in media and defamation law.
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