Sam Kerr, captain of the Australian Women’s Soccer team, has been found not guilty of racially aggravated harassment of a London Metropolitan police officer after calling him “stupid” and “white”. Despite the acquittal, this case has drawn significant attention to whether seemingly unfavourable treatment towards white people can constitute racism and how similar incidents would be handled in Australia.
Background
On 30 January 2023, Sam Kerr and her partner hailed a taxi to take them home after a night out. Both women were allegedly drunk and during that cab ride, Ms Kerr was sick in the taxi. The driver then locked the doors and windows and drove them to the nearest police station on advice of police but without informing the women. Ms Kerr and her partner told the court they feared they were being taken hostage, and shortly before arriving Ms Kerr’s partner smashed one of the taxi windows in an attempt to escape.
Police body camera footage showed police requesting the pair to pay for the damaged window and fare and cleaning fee. During the recorded conversation, Ms Kerr called the officers “f***ing stupid and white”.
The prosecution argued that Ms Kerr’s comments were a deliberate attempt to harm the police officer, were racially motivated and that the police officer felt “humiliated”, “shocked” and “belittled”.
Ms Kerr did not deny calling the police officer “stupid’ or “white”, but told the court she was trying to make a comment about “power” and “privilege” and believed that the officers were treating her differently because of her skin colour on the night of the incident. Ms Kerr is of Indian descent.
The jury unanimously found Ms Kerr not guilty of the charge.
“Reverse racism” – fact or fiction?
While Ms Kerr has been found not guilty of racially aggravated harassment rather than discrimination, her case has prompted widespread conversation about the myth or existence of “reverse racism”, and whether racism or racial discrimination against white people is permissible under legislation or more socially acceptable.
“Reverse racism” is sometimes used to describe situations where white people believe they are discriminated against or negatively stereotyped because of their whiteness or treated less favourably than people of colour. It is an idea focused on prejudiced attitudes towards a certain racial group or groups, or unequal treatment – namely, discrimination. But it overlooks that power is one of racism’s central indicators.
The Oxford English Dictionary defines racism as “prejudice, discrimination, or antagonism directed against someone of a different race based on the belief that one’s own race is superior.” According to Mario Peucker, Associate Professor and Principal Research Fellow at Victoria University, the concept of “reverse racism” doesn’t work because racism is more than just prejudice. Prejudice and discrimination are inextricably linked with historically entrenched and institutionalised forms of systemic racism and racial hierarchies, injustices and power imbalance1.
Racial discrimination and harassment protections in Australia
State and federal anti-discrimination laws prohibit discrimination and harassment on the grounds of certain protected attributes in certain areas of public life, and in public with respect to vilification. The Racial Discrimination Act 1975 (Cth) (RDA) broadly prohibits discrimination on the basis of race, colour, descent, national or ethnic origin, as well as acts of racial hatred. Acts of racial hatred include public acts that are reasonably likely to offend, insult, humiliate or intimidate a person or group because of their race, colour, or national or ethnic origin. Similar protections exist under state and territory anti-discrimination laws. In Victoria, reforms have been proposed to strengthen anti-vilification laws, which are currently limited to protection from “behaviour that incites hatred, serious contempt, revulsion or severe ridicule for a person or group of people, because of their race or religion”.
White people can be called derogatory names that reference their whiteness. Given this, whiteness may technically be protected from anti-discrimination and anti-vilification laws, and it may be possible for a white person to face discrimination or vilification by people of colour on the basis of their whiteness.
However, while white people may be covered by protections against racial hatred or vilification, there is still a requirement to establish that the alleged conduct was reasonably likely to offend, insult, humiliate or intimidate the complainant. In circumstances where whiteness has existed as the dominant race in Australia and positions of leadership and authority continue to be dominated by white people, this aspect of the legislation is likely to be extremely difficult to substantiate.
Further, there are exceptions under the RDA and state anti-discrimination laws that make otherwise discriminatory conduct lawful, in particular, special measures. Special measures are lawful discriminatory acts aimed at reducing historically entrenched, intergenerational and systemic inequalities. Affirmative action programs are direct responses to structural inequality and an attempt to level the playing field. Positive racial discrimination is based on amelioration, not racial superiority. According to Peucker, regardless of whether positive or affirmative action is lawful or not, the term racism or “reverse racism” would not apply.
While the limits of protection from racial harassment, discrimination and vilification have not been comprehensively tested in Australia’s current social climate, Ms Kerr’s case demonstrates that such claims need to be considered in the context of social, cultural and historical factors that shape individual experiences and responses, not just the letter of the law.
In Ms Kerr’s case, the words were said in the context of:
- Ms Kerr’s experiences as a person of Indian descent;
- evidence that the London Metropolitan Police were institutionally racist, misogynistic and homophobic, and the historical role police have had in UK to use public order offences in discriminatory ways to target particular groups within society; and
- the ways in which race intersects with gender when understanding actual or perceived instances of gender-related harm.
In both the UK and Australia, legal claims do not exist within a vacuum and as shown in Ms Kerr’s case, these sociopolitical factors can be pivotal in determining the outcome of the case.
Key takeaways
- In the broader context of discussions about diversity, equity and inclusion, it is important for organisations to have a clear approach to managing complaints raised by staff, students, service users or other members of the community.
- In the current political climate with diversity, equity and inclusion initiatives being rolled back in the US, Ms Kerr’s case may act as a catalyst for groups with power (such as white people, men, and non-disabled individuals) to push for the erosion of protections afforded to groups that have been traditionally marginalised, including special measures.
- Organisations should establish clear standards for the conduct and behaviour of staff, students, volunteers and other service users, which prioritise safety, respect and inclusion for all groups, including those that form the majority within your organisation and community.
- While it may be reasonable to set clear expectations for conduct and behaviour, Ms Kerr’s case demonstrates that organisations need to be cognisant of the additional social, structural and intersectional factors that may shape individual experiences and responses. In this case, Ms Kerr’s experience was shaped by her gender and skin colour. It is important for organisations to be responsive to intersectionality when responding to incidents.
- Recognising these intersecting factors may prompt organisations to consider implementing special measures to offset disadvantage or inequity experienced by certain groups in the context of employment, education or access to goods and services. However, any potential strategies should be carefully considered in the context of relevant discrimination laws.
How we can help
Our Safeguarding and Discrimination Team has extensive experience supporting organisations to create safe and inclusive environments for all individuals, as well as navigating complaints and disputes if they arise. We can assist with tailored advice on your discrimination and safeguarding obligations to diverse groups, as well as development and delivery of policies and training to proactively address these issues.
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.