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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.
To contact Reuben email firstname.lastname@example.org