A CONSULTATION on Scottish hate crime legislation is taking place at the moment. It is based on Lord Bracadale’s recommendations, following his review of the existing laws in Scotland. It is open to everyone and allows the public to give their opinions to the Scottish Government. Rather than answer the rather narrow questions being raised by Lord Bracadale however, I have written a submission that questions the legitimacy of hate crime legislation in its totality.

Paul Coleman, in his book Censored: How European “Hate Speech” Laws are Threatening Freedom of Speech, traces the origins of hate-related laws and finds that it was Joseph Stalin’s Soviet Union that first proposed the use of state power to arrest people for expressing opinions that were seen as politically unacceptable. At the time, in UN discussions, Western nations opposed this position as illiberal and authoritarian.

Stalin’s regime pushed this issue for two reasons, firstly because of the racism in America, an issue they believed they could exploit – demonstrating the myth of equality under capitalism, and secondly, because they, at home, wanted to have the power to silence dissenting political voices and ideas.

Over time, the liberalism of the West has declined and we now find these types of laws being promoted here.

Hate speech laws are different from hate crime laws, but for Coleman, there is a clear connection between the two, as both relate to the criminalisation of certain ideas.

James B Jacobs and Kimberly Potter, studying the rise of hate crime legislation in America, observe that there is no clear definition of hate, indeed the more you examine the idea the more you find it is about prejudice. How you measure prejudice or decide on good or bad prejudices is problematic, but for us the important point to note from this work and looking at the history, is that hate crime legislation is a form of thought crime. We are punishing people for having ideas in their heads that we do not like. Or simply because they say certain words that we have defined as a form of hatred.

As Jacobs notes, the majority of people who face longer jail sentences in the US due to hate crime legislation, are not hardened bigots but simply working-class black and white young men (as both can be said to be haters against one another) who are more inclined to use crude offensive language. There is no need to prove actual “hate” in the true meaning of the word – a name called out in a drunken fight is all you need. A drunken swear word does not necessarily indicate hate or even bigotry and yet American prisons are filling up with the poorest sections of society – including many young black men – because well-meaning people feel they can use the law to tackle social and political problems like racism.

Somewhat ironically, hate crime legislation and the promotion of it encourages a caricatured image of certain groups in society, where all black people or gay people, for example, are represented as being essentially “vulnerable” and therefore in need of greater protection.

A key way of proving this vulnerability is through the attempt to prove that certain sections of society are more traumatised by crime than others. But the evidence for this is limited and often used to justify what appears to be a pre-existing outlook. It certainly does not reflect every case and I would suggest does not reflect the reality in the vast majority of cases. Individuals experience things differently and different crimes have a very different impact on people, whoever they are. It could be argued for example that a poor person may experience far more difficulties in dealing with a crime than a wealthy gay or black person. How crime is experienced will also significantly depend upon individual characteristics, on personalities as well as the personal support networks they happen to have.

Rather than attempt to understand the issue of crime-trauma however, the authorities tend to adopt an extremely one-sided approach to the issue. A good example of this can be seen in the Association of Chief Police Officers in Scotland report Hate Crime Guidance Manual of 2010.

In this document we are informed that hate crime is more traumatic for vulnerable individuals and communities. However, only one piece of research is used to prove this point, and this is from America. The study was of what must be one of the most terrifying experiences, that of gay men being beaten up by gangs outside gay nightclubs. Here you have severe violence, at night, carried out by a gang of strangers, who are clearly bigoted and hate gay people, something that we can imagine would be truly terrifying and have a significant impact on the victim. But this is not what makes up most so-called hate crimes: the drunken fight, for example, or the insult to the Asian shop keeper by a young thief. The example of the gay men being beaten appears to be used because of the severity of the crime and the high level of trauma that followed. To suggest, from this very particular and brutal example, and indeed from only one piece of research, that all hate crimes in Scotland are traumatising and necessarily more traumatising than other crimes that people face is highly problematic.

Jacobs and others have suggested that rather than bringing society together, hate crime laws encourage certain activists to promote their victimhood and to attempt to elevate the issue, thus encouraging the idea that we live in a hate filled society – even when this may not be the case. There is also the possibility that this approach by the government and the police will create resentment amongst sections of society who feel that the criminal justice system is punishing the same crime differently: The loss of the universal dimension to law should, I believe, be a major concern.

Finally, going back to issues raised by Coleman; hate crime legislation stems, at least in part, from a desire to rid society of bigoted ideas. If this is the case we need to question whether, firstly, it is legitimate to use laws and policing to challenge ideas, and secondly to question whether this approach can ever be successful. A genuinely liberal and tolerant approach to bad ideas in society would see the criminalising of prejudices (or hate) as authoritarian and counter-productive. All hate crime legislation should be abolished.

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