On Friday, we reported on the contents of Fianna Fáil’s new Hate Crime Bill, which will be debated in the Seanad this week. Ahead of that debate, it is worth setting out for our readers why we at Gript believe hate crime laws are one of the worst ideas ever introduced by Irish politicians.
Here are ten reasons why they should be opposed, at all cost:
1. They criminalise thought – unlike any other law
Say what you want about hate speech laws, but they don’t criminalise thought. To fall foul of a hate speech law you have to actually say something and be heard say it. There must be actual evidence that you said the criminal thing. The same goes for pretty much every other crime. Not so with hate crime laws. The crime in a hate crime is not what you did, it is what you thought. To successfully prosecute a hate crime, you must prove that the person who committed the crime was motivated by hate. But only a particular kind of hate, because….
2. Only some kinds of hate are illegal
Imagine a situation where a husband finds out that his wife has been sleeping with another man. Imagine that the husband then seeks out that other man, and physically assaults him. What is the motive there? Is it jealousy? Or is it hate? It is perfectly possible that a spurned husband might be acting with malice, and out of hate. But under the law, that would not be a hate crime. It is only a hate crime if the victim is in a protected group.
Paradoxically, if the husband beat up a racial minority and declared that he did so because he hated him for sleeping with his wife, that’s not a hate crime, even though the crime has been committed with hate in the attacker’s heart. It’s only a hate crime if your hate is directed at a specific group, not an individual.
But on the other hand, if in the course of beating him up, he called him a racial slur, it would be a hate crime. Makes sense, right?
3. Hate is a feeling. What other feelings are criminal?
Love. Hate. Jealousy. Anger. Lust. What do these have in common? They’re all feelings. Nearly every crime is motivated by feelings of some sort or other. Why are we only legislating to make one negative feeling criminal? If a corrupt politician is guilty of lining his pockets, why is that just “corruption” instead of, say, a “greed crime”? If a man is arrested for visiting prostitutes, why is that simply solicitation, instead of “lust crime?”
Those concepts are absurd, of course. Nobody would ever introduce a “greed crime” law because the idea of criminalising feelings is nonsensical, even when they are negative feelings. So why are we trying to do it with hate?
4. No other crime is judged purely by motive
Even in America, where they have first, second, and third degree murder, crimes are not ranked by motive. If you kill and dismember somebody because, like Hannibal Lecter, you’re a cannibal, then your cannibalism isn’t taken into account. You don’t get more time or less time than somebody who kills and dismembers a person because, say, they wanted to inherit the victim’s money.
Greed or cannibalism – the motive doesn’t matter. Only what you did. The only time motive matters is if it is exculpatory – for example, the classic example of someone speeding to the hospital because there’s a woman in labour in the car. But there is no other crime where the motive itself is the crime.
It is not a crime to want your parents to leave you all their money in their will. It’s only a crime if you forge their will before or after they die. In every other area of criminal law, the action, not the motive, is the crime. This has served us well for two thousand years.
5. They create protected classes of citizens
Imagine two people, who have both had their legs broken with a sledgehammer.
One is a little old lady who has been attacked by thugs who tortured her to get her to reveal the money she had under her mattress. The other is a gay man who’s been attacked by people who hate gay people.
Both crimes are horrendous, but hate crime laws make it so that one of them has actually suffered a worse crime than the other.
Is that true? Hate crime laws by definition elevate one group of victims above another, and make it so that one of those crimes carries an additional sentence. The little old lady, in this scenario, actually gets less justice because she’s not gay, or black, or a traveller, or whatever. Is that right?
Of course, it’s not.
6. They require juries to breach the “reasonable doubt” standard
Human beings are not mind readers. There is, simply, no scenario known to man where one person can be completely sure what another person was thinking at the time they committed a particular act.
Hate crimes must be prosecuted purely on the basis of what somebody was thinking when they committed a particular crime. But a criminal conviction, in front of a jury, must meet the “beyond a reasonable doubt” standard of proof.
In what situation can there be no reasonable doubt about what somebody was thinking when they committed a crime? The reason that court cases proceed on the basis of physical, forensic, and expert evidence is that those things can be established beyond reasonable doubt.
We can say for certain that person X was in a particular location at a particular time. We can say that their DNA is certainly at the crime scene. We can say that the crime was committed at a certain time. We can prove that somebody said something. All of those things are provable.
It is impossible to prove what somebody was thinking at a particular time. A jury that says that they have no reasonable doubt about someone’s thoughts or motives is a jury that is lying.
7. They pre-judge the accused, and there is basically no possible defence
Dear reader: Tell me, now, what the evidence is that you, reading this, do not hate Chinese people.
Imagine you are in court, accused of a hate crime. You stand accused of holding hateful views about Chinese people. The evidence presented is that you had posted on facebook three times in 2011 about animal welfare abuse in China, and once, five years ago, you had referred to Chinese athletes as “Chinks” in a whatsapp conversation about the Olympics.
The prosecution says this is evidence that you have prejudice against Chinese people. How do you disprove that? You basically end up like Father Ted, in front of the jury, desperately trying to prove that you are not a racist. But how do you do it? Have a think about that one, while you consider point 8:
8. They do nothing to actually prevent hate crimes
Here’s the thing about most crimes: The people who commit them do not particularly expect to get caught. Be honest with yourself, dear reader: How many times have you personally broken the speed limit? Did the limit deter you, or did you think “it’s 1.30am, nobody’s on the road, doing 130kph instead of 120kph is worth the risk”. And that’s only a minor crime. Very few people who commit serious crime expect to get caught. And as such, the criminal penalties aren’t actually a deterrent.
Making drug use illegal has not resulted in drug use becoming extinct. Similarly, you can’t legislate and criminalise racism and bigotry out of existence. Besides, hate crimes are already illegal. If you attack and injure somebody, then that is already a crime. If those crimes are still happening, then that suggests that the law has little deterrent effect as it is. Adding another sticker on to it is not going to have any impact.
9. They turn minority groups into victim classes, regardless of actual status
Hate crime laws actually reinforce societal divisions by formalising in law the idea that some groups of people are in a victim class, while others are in an oppressor class. This is not true in practice, and the concept of such a demarcation risks undermining social cohesion. Try explaining to a poor homeless white person why the state is creating special crimes to protect the wealthy gay couple who live in the apartment block in the door of which the homeless person seeks shelter. The idea that somebody is more of a victim in society purely because of their gender identity, sexual orientation, skin colour, or religion completely ignores the competing socio-economic circumstances of people living in a country. In time, this will breed more resentment than it does tolerance.
10. They create a horrible precedent
If “hate” itself is a crime, then what’s the argument for limiting “hate crimes” to simply acts of violence? Already we see moves to criminalise speech, and journalism, and words because they are hateful, even though they are inherently non-violent. But why stop at words? In fact, why stop at actions at all? What if inaction is perceived to be motivated by hate? For example, what about a teacher or a college lecturer who refuses to wear a rainbow pin on their collar during LGBTI awareness week? Surely a reasonable person can infer from that some level of opposition to the LGBTI cause, no? Does it rise to hate? Who knows, but surely it’s worthy of investigation? What about somebody who laughs at a racist joke? Obviously the person who tells the racist joke is guilty, in this new regime, of hate speech. But what about the person who finds it funny, and laughs? Are they not likely to come under suspicion, too?
It all comes back, in the end, to point one: Hate crime laws are thought crime laws. They make thinking certain things, in some circumstances, criminally prosecutable. Once we open that door, and say that yes, some thoughts are criminal, we will find it very hard to close again.