The Law Commission, the body that advises the government on changes to the law, looks set to recommend that the laws on hate crimes should be expanded. In future women should be protected if misogyny – hatred of women – is alleged as the motivation of a crime. Many women’s campaigners are celebrating a move that they believe is long overdue. Others are raising an eyebrow. They say that women should not be singled out for protection as an “oppressed minority” for the entirely obvious reason that they are not a minority. Others are scratching their heads at the whole idea of hate crime and whether it is a good or even a coherent idea. Is it? And should misogyny be added to the list?
Hatred has always been a characteristic of human beings and it always will be. But the concept of hate crime is relatively recent. It’s not hard to see how it has come about. There have always been groups of people who have been persecuted for no other reason than who they are. There is no other way to explain the Holocaust, the greatest crime in recent history. But it is not only Jews who have been the victims of hate. So too have people of colour, gays, foreigners, the disabled and almost any group whose identity is seen as ‘other’. It is right and proper that compassionate people should want to protect them. And it is equally understandable that societies that rely on the rule of law as the chief defence against brute power should look to the law to protect those who have been and still are the victims of hatred.
So far, so uncontroversial. And so far, so easy to explain how the simple fact of hatred should in itself become a candidate for being made illegal. Which takes us to the concept of “hate crime But then things get tricky.
In order for any criminal law to be applicable there has to be some manifestation of the crime in the form of behaviour. It’s no good taking me to court on the charge that I harbour hatred of Jews, gays, blacks or even women unless I have done something which proves I do. In our courts of law it’s not my thoughts that count. It’s my behaviour. Without such behaviour there can be no evidence because nobody can see what’s going on in my head, let alone use it as evidence. In short: it’s what I do that matters and not what I think. And this raises a tricky question.
If my behaviour has broken the law doesn’t the concept of hate crime become redundant?
If I abuse a man – physically or verbally – because he is black I can already be charged with racial abuse. If I hit a woman because she is lesbian I can be charged with GBH. If I daub a synagogue with a swastika, I can be done for inciting racial hatred or at the very least for defacing property. The additional charge of motivation by hate is not needed to ensure I’m punished for whatever it is I’ve done. It is difficult, if not impossible, to think of a hate crime that does not entail behaviour that is not already covered by some existing law and does not need the additional attribution of motive to bring about a prosecution.
There’s another problem here. Motivation is effectively impossible to prove. That’s why it is always an ‘extra’ piece of evidence in the prosecution of a crime and never the prime one. A husband cannot be charged with killing his wife solely on the grounds that he wants to get his hands on her money. The prosecutor must first produce the evidence that he killed her and only then can offer the motivation as back-up evidence.
If I committed a crime which, on the face of it, looked like a hate crime, I could always claim there were other motivations. Yes, I shouted at the woman in the red dress but that’s because because I have a visceral hatred of the colour red. Or no, I did not abuse the gay man because he was gay but because he’d just been very rude to my mother. I killed the road-sweeper not because he was black but because I’d been reading a lot of Dostoevsky novels recently and wanted to see what it was like to commit a completely random crime.
Those who support the concept of hate crime and want to widen it to include misogyny dismiss those objections. Lucy Hadley, the campaigns and policy manager of Women’s Aid, says: ‘Making clear that crimes happen to women “because they are women” could help to send a clear message that women will be believed, protected and supported if they experience sexist violence and abuse’. To which her opponents say that might indeed be a desirable outcome, but using the law simply to ‘send a message’ is the wrong way to go about it. That I not what the law is for.
A more radical way round those problems has been to develop the concept of a ‘non-crime crime’. That’s to say cases where criminal behaviour, in the conventional sense, is not required in order to allege a crime and indeed to convict someone of committing it. Some police forces are already cataloguing what they call ‘non-crime hate incidents’ which they define as incidents ‘which are perceived by the victim or any other person to be motivated by hostility or prejudice’ against a person in one of the specified categories of hate crime.
So, according to this approach, the gay man I had admitted abusing could effectively claim special rights as the ‘victim’. According to this view of hate crime, I would be guilty of a hate crime simply because of what the ‘victim’ thought. Many people might see this as a palpable injustice since it enables anyone in a hate crime category simply to assert that he or she has been the victim of a hate crime for it to be believed and accepted and for the alleged perpetrator to be convicted without further recourse.
Some people might be prepared to overlook the problems inherent in the concept of hate crime where it covers minority groups who have clearly suffered persecution in the past and often still do so today. What’s wrong with a bit of extra legal protection, they might say, even if there are some legal difficulties involved? It is a fact that some black people do still get abused just because they’re black so ‘there should be a law against it’. But even people who take this line start to worry a bit as the list of groups covered by the concept of hate crime expands. This is the case with expanding it to cover women.
It’s not that women don’t still face discrimination, inequality, abuse and violence. Many of them do. But the way to deal with the problem, say the hate crime sceptics, is to toughen up anti-discrimination laws, equal pay laws, the policing of domestic abuse and so on. It is not right to make misogyny a hate crime. Their concern is: where should it stop?
If women are to be candidates for hate crime, why not everyone else? The Law Commission is already considering special protection n this context for “the elderly”. And then what? It won’t be long before men are claiming the same ‘right’ to bring in a law criminalising ‘non-crime hate incidents’ against men. Every group will want to get on the bandwagon, and by what criteria should they then be deprived of their right to protection under hate laws? Why shouldn’t there be a law banning hate crimes against, say, Tories?
You might think that taking all this to such an absurd logical conclusion is just a bit of journalistic fun. But there’s a much more serious point here. We are living in a society in which it is increasingly difficult to conduct rational argument among people who disagree. To make the argument, for instance, that police officers should not “take the knee” is to risk being branded racist. To use the word “woman” rather than the phrase “people who menstruate” is to be transphobic.
The dynamic of hate crime is feeding this. If I say something disobliging to a black man who I think has thrown litter into my garden, it ‘must’ be because I am a racist. If, as a cyclist, I complain loudly to the driver who turns out to be gay that he’s forced me against the kerb, I ‘must’ be homophobic. If I protest to the woman next door that she’s playing her music too loudly, it ‘must’ be because I’m a misogynist. The implication is: nothing else needs to be said. I may be convicted simply because of I am believed to be. When that happens, free speech comes to a stop.
As you can see, I’m struggling to put the case in favour of hate crimes let alone allowing misogyny to become one. Maybe that just proves I’m a phobe-o-phobe: someone who hates people who want to interpret everything in our lives in terms of hatred and then introduce laws to ban it. They should probably lock me up.
But what’s your view?
Let us know.