“Hate Crimes”: A clumsy way of validating victimhood

This post was written by Reuben on December 23, 2011
Posted Under: Uncategorized

It pains me to admit it, but Damian Thompson – archreactionary at the Telegraph is correct. The recent legislation on Transphobic hate crime is an example of bad law making. His reasoning is of course abhorrent. His suggestion that “transphobia” is a spurious concept will surely be news to many trans people who have to put up with this fairly socially acceptable prejudice. Nonetheless, the law itself has indeed become less than  sensible.

Under new guidelines, murderers who are motivated by transphobia will, as a rule, get a thirty year tariff. This brings transphobic murder  in line with that motivated by  racial and religious hatred. Thus it might be argued that the law  has become more internally consistent. Yet looked at from any wider perspective the law as it stands is fairly barmy. The starting point for a bog standard murder is 15 years. Thus a transphobic murderer who recieves 30 years is, in effect getting 15 years for takng the life of another human being, and exactly the same number of years as punishment for the thoughts in his head.

The nature of Britain’s hate crime legislation owes more to the twists and turns of history, than it does to any abstract logic. Incitement to racial hatred was first criminalised in 1976. Thereafter, incitement  legislation was , for different reasons, beefed up in 1986 and then under new labour – and came to serve as a template for a wider range of “hatreds”.

 

Undoubtedly, such incitement legislation sits uncomfortably with the principle of free speech. Yet In the mid 1970s, the law against inciting hatred was passedagainst the background of a rapidly growing National Front, widespread “paki-bashing”, and  recent history of race riots. As such it may have been justified on pragmatic grounds, a  reasonable fetter on free speech in the face of a pressing public interest. Yet, even if a balance needs to be struck,  the appropriate balance free speech and social welfare will inevitably change over time. What may have been justified in the context of 1970s street violence is arguably less justifiable in 2012. While structural racism remains an enormous problem, the physical threat posed by the likes of the EDL is far smaller  compared with the violent street racism of 40 years ago.

The legislation passed by the New Labour government had a different motivation to the pragmatic legislation of the 1970s. Labour passed thousands upon thousands of laws, and as labour ministers themselves confessed, this government saw legislation primarily as a means of “sending a message”. This whole concept is problematic. A modern govenrment has a great punitive machinery at its disposal. The criminal law code exists not only to tell us what we cannot do, but also to set out the very specific conditions under which the state may punish the individual – in other words as a check on the state. As such, decisions to expand what is criminal should not be taken lightly – and the desire simply to send a message is hardly sufficient justification. Equally, it is crucial for a free society to differentiate between behaviour that is criminal and that which is merely deviant – to say “we don’t like what you are doing, but we are not going to put you behind bars until you materially harm others”. Passing legislation in order to send a message  erodes such a distinction.

What has also marked the past 15 years is a certain “me-too-ism”. Undoubtedly, official opposition to racism came first, while official opposition to homophobia and certain other forms of bigotry took longer. In clambering for the same kind of recognition, lobby groups such as Stonewall took existing hate crime legislation as a template and pushed for it to be extended. Such an approach is understandable, and yet it also precludes any critical approch to hate crime legislation in general, and its problematic relationship with free speech. Peter Tatchell got it right when he addressed the relatively recent legislation against homophobic hatred.

“To be frank, I’d like to see all the incitement to hatred laws repealed. They are unnecessary. There are already enough laws to deal with abusive and threatening words that go beyond reasonable criticism.

Many of the existing laws are already open to police abuse, as in the case of the Bournemouth lay preacher, Harry Hammond, who was unjustly convicted under the public order laws for merely saying that he believed homosexuality is ‘immoral’. Harry was a bit of a bigot, but a fairly gentle one. He should have never been criminalised

It is high time that we took a critical attitude to the legislative complex surrounding hate crimes – not simply because of the importance of free speech, but also because we know that imprisonment is such an expensive and  socially useless enterprise, which, if it is to be used at all, must be reserved for the most serious crimes.

However much we may, for example, dislike Emma West, it is difficult not to see the absurdity of remanding this young mother  in custody for her verbal outburst. Horrible though it was, I’m  sure I speak for many when I say I have encountered  worse behaviour on public transport – for a start she didn’t threaten anyone with violence. Meanwhile the reaction of black and white passengers – and the reaction across society – suggests that such imprisonment constitutes something of a judicial sledgehammer being employed to crack a nut.

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To contact Reuben email reuben@thethirdestate.net

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Reader Comments

Hugh

“it is crucial for a free society to differentiate between behaviour that is criminal and that which is merely deviant – to say “we don’t like what you are doing, but we are not going to put you behind bars until you materially harm others”. Passing legislation in order to send a message erodes such a distinction.”
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As I understand it, the purpose of putting someone behind bars is principally deterrent and/or reformative. In other words, we make behaviour criminal so that we can tell them we don’t like them doing it, either by waving a threat or reforming their thoughts inside the prison.
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All law is already a tutor, because the state that enforces it has the primary purpose of being a tutor – historically, usually, primarily of the lesson of ‘stop hurting each other’. If asked why it is acceptable for governments to make and enforce laws (i.e. force or the threat thereof), the classical liberal would have to answer because it maximises the freedom of others to get on with their projects relatively free from the fear of harm from others. If asked why freedom-maximisation legitimated threat of legal punishment, many classical liberals would argue because freedom allows for greater happiness. Press that principle and you get to a basic meta-ethical belief (something like “a good action is that which promotes the greatest degree of happiness for the greatest number”), or ‘prejudice’, since syllogistic or inductive arguments cannot be delivered in support of basic definitions.
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The same problem applies to any political theory: the government exists to teach someone’s moral beliefs (sometimes using force and the threat thereof, but there are other ways of teaching people things, of course). The only proper limit on what we should and should not criminalise is practicality.
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We have government to prevent deviance. Whilst transphobia rather than transexuality is considered deviant, it only makes sense to criminalise it. If be ‘devious’ we mean ‘deviating from the moral purposes of human action’(1) then it could, of course, be the case that transexphobia really is deviant(1), in which case it would be deviant in a metaphysically similar way (i.e. ‘evil’ as opposed to ‘good’) to the way in which physically hurting other people is deviant(1). There would be no reason not to criminalise it.
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If transphobia is ‘devious’ only in the sense that it deviates from current social norms (2), and you think it is a bad idea to criminalise things only because they have this character, then you need to explain the difference in kind, rather than degree, between the criminalisation-worthy deviance(2) of physically hurting each other and the criminalisation-unworthy deviance(2) of transphobia. This is necessary because in the classical-liberal theory of the state given above (and which you have appealed to), I have shown how the purpose of law is ultimately to prevent ‘deviance’(2). That is, the criminalisation of freedom-reducing or pain-inflicting activities are legitimated because these activities conflict with what society(/the liberal statecraftsman) regards as wrong, i.e. ‘doesn’t like’.
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Alternatively, you could insist that transphobia is deviant(2) (perhaps transsexuality was deviant (2)) but that physical harm is deviant(1) – in other words, that we criminalise some things because we *really* disapprove of them, whereas we leave other things legal because we’re not sure.
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I recognise this was a bit dense. To contract it regardless of clunky terminology, that kind of liberalism which attempts to limit legislation on the principle of allowing for any action which does not infringe on anothers’ life or liberty (on the grounds that individuals are entitled as autonomous rational agents to make their own decisions as regards the morality of their actions without being taught by the special powers of the state) is incoherent. It is incoherent because those grounds on which the freedom-maximization principle of law-limitation also provide for those under the law to come to their own decisions about the value of life and liberty without the special powers of the state to teach them. So either government is illegitimate, or we modify the principle and accept that we can, do and should criminalise things because “we don’t like them” – then debate the extents of ‘not liking something’ that incur which punishments. (Thought crimes like transphobia, for example, could have nominal fines purely for the purpose of vindication or ‘sending a message’.)

#1 
Written By Hugh on December 23rd, 2011 @ 11:41 pm
tony moore

Good article. My own perspective is – we ought to have such matters as these placed to the public vote, to decide the outcome. (As Hugh’s reply suggests), there will always be an outcome inconsistent with some tenet or other. However, it is still possible to position the boundary of what constitutes crime, or mere comment, much closer to a place that is both more universally accepted and fair: There are two gaps between State and peoples, I feel – (1) The chasm between definitions of racism (or other isms) used by the State (any act, unwitting or not, that a member could consider offensive on the basis of their colour et al) and those broadly defined by a reasonable member of Joe Public (deliberate acts to insult, abuse or cause intentional disadvantage to someone for their skin colour or gender – and that alone).(2) The second axis is decision to uphold race laws (or other ism laws) in a way that excuses or otherwise favours the minority group, assuming that they are already victims (e.g. the decision to allow Black social/union groups and ban whites; or not prosecute Diane Abbott). At the other end of the spectrum, the option would be to admininster those laws without favour. In this latter point, I sense the public would broadly accept some form of hate law, but would want to see it administered equally. This would mean, say, Diane Abbott would be as guilty as the nutcase in the EDL, or more so. Personally, I think that it would be about right though, if that was the outcome. They are both enemies of harmony – promoting divisive, racist narratives, beyond expressing grounded views (however objectionable) that could ultimately be considered as either ‘true’, ‘honest opinion’ or ‘fair comment’; which should always be immune from prosecution.

#2 
Written By tony moore on January 7th, 2012 @ 6:03 pm

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