Today saw the long-awaited release of the General Scheme of Minister McEntee’s new Hate Crime Bill. The bill will introduce several aggravated offences which will increase penalties for crimes “motivated by prejudice.” Assuming, of course, that those offences are targeted at those with “protected characteristics.”
Race; colour; nationality; religion, ethnic or national origin; sexual orientation; gender; or disability. Those are the “protected characteristics” this bill covers. The inclusion of gender is going to be interesting, and by ‘interesting’ I mean activists are going to weaponize it the second it goes live and we’re finally going to be able to get to see how a trans version of the Ashers bakery case would have played out in an Irish court.
According to the press release which accompanied the release of the General Scheme the bill will introduce “tough sentences for hate crimes.” It quotes Minister McEntee as saying that we must “show victims that we will recognise the true harm of these crimes.” Presumably because there are still people in the civil service who think that using a law, which could lead to a person being imprisoned for up to 5 years for saying the wrong thing, primarily to signal social solidarity is a perfectly reasonable and respectable idea.
The Minister is also quoted as saying “we are determined to stamp out prejudice and hate.” That’s an unsurprising quote – politicians love declaring they’re going to stamp out or wage war on things, preferably things that cannot fight back, like sugar or the government of Libya, and no one bothered to learn from George Bush that you can’t actually win a war against an emotion because they live in the human heart.
That quote would also indicate that if you can find a way to be a hateful, prejudiced ass to your neighbour the Irish Government has no strong views on you actually being a hateful, prejudiced ass to your neighbour. After all, if this is the list of prejudice and hatred the Government has decided to wage war on, everything else must be, at the very worst, something akin to Switzerland in WW2. Or Switzerland in WW1. Switzerland in general actually.
The bill itself is a mixed bag of things that Irish NGOs, and to an extent the Department of Justice, fought to have included and sanity checks that have been introduced to limit the damage those inclusions would have caused to civic society.
Incitement to hatred is broadened, and now includes reckless behaviour, but there are no cut-outs in the law to protect speech which is of legitimate scientific, cultural, or political importance. There are defences provided in the bill that include things like “a reasonable and genuine contribution to literary, artistic, political, scientific, or academic discourse,” but those defences are explicitly stated to only actually cover the republication of material which could be classed as an incitement to hatred, not its initial utterance. This means that what you say can be reported upon or noted, but you’re still going to prison for having said it.
Victim’s perceptions can be taken into account by judges looking to determine if a crime was aggravated by prejudice, but the views of the victim are explicitly stated to not be enough, on their own, to prove that a crime was aggravated thusly. That will be deeply disappointing to a number of NGOs who seemed to want a situation in which anyone saying that something was racist meant it was automatically deemed to be racist by the courts.
Section 6 does reverse part of the burden of proof, meaning the state will assume you did something and you’ll actually have to demonstrate that you did not, but the Bill states that doing so only requires you to “show, on the balance of probabilities, that this was not the case.”
Even with a requirement of ‘balance of probabilities’ instead of ‘beyond a reasonable doubt’ it’s not a situation that will help the accused, but the NGOs main complaint with the old law around incitement to hatred was that not enough people were prosecuted under it because it was too difficult to prove intent, and so here we are. The NGOs wanted as much of the burden of proof placed on the accused as possible because they unironically believe that using the full resources and weight of the state to crush the accused, and having that person desperately try and prove their innocent using whatever twigs, rocks, and scraps of paper they have on hand, is the best way to ensure justice for all.
On aggravated offences the actual additional punishment you’ll get for being motivated by prejudice depends on the crime you’re accused of, but it could lead to the addition of two years to your sentence if your wrong actions are determined to have been caused by specific forms of wrong thinking.
There is, however, one undeniable positive consequence of enacting the bill as written – we’ll never again have to hear a Government Minister or TD embarrass themselves when talking about Xinjiang province, and the Chinese genocide there, as the bill makes it an offence to “grossly trivialise any act falling within the definition of a ‘genocide.’” Sadly, as there’s no limit on what genocides the bill covers, it also means I will have to stop making jokes about the sacking of Carthage for fear of being hit with a term of imprisonment not exceeding 12 months.
You can read the General Scheme of the Bill HERE.