The Scottish Parliament has passed Humza Yousaf’s hate crime bill by 82 votes to 32. It has been modified considerably since being introduced. Attempts have been made to assure us that free speech is protected. But the whole concept of hate crime is fundamentally flawed, and this is not changed by amendments that do not change the flaw.
What matters morally is what I do, not the reason for my doing it. If I kill someone because he is black my crime is not worse than if I kill him because he’s fat, tall or wearing a yellow shirt. It is not worse to steal from a church because I hate Christians than to steal from a house because I desire something inside that house. What matters morally is what I do, not who I do it too. To suppose otherwise is to suppose that certain victims of crime are more deserving than others. If you kill a black man you get 20 years, but if you kill a white man you get only 10. This is to suppose that the death of a black man is morally more significant than the death of a white man. But this is racism.
The problem furthermore is determining what the motive for a crime is. If I kill a black man because I dislike the shirt he is wearing, the crime is likely to be perceived as being racist in motivation if I am white. If a white person gets into a fight with another white person no one is going to perceive a racial motivation, but a black victim is likely to think the motivation for the attack was racist even if nothing was said or done that might be evidence for this.
This again creates a special class of victims of crime who have the right to determine whether a crime was a hate crime, merely because they say it is. If I beat up a homosexual without even knowing that he is a homosexual. He may tell the police that he perceives the attack as anti-gay. The police are likely to believe him even if I said nothing that might suggest that I was fighting him because he was gay. The mere perception on the part of the homosexual person would be enough to convict me of a hate crime.
But this again creates a special class of victim. It is considered worse and I am likely to be sent to jail for longer if I beat up a homosexual rather than someone without any special characteristics. But it also creates a special class of witness who is allowed to determine my motivation for attacking him merely because he perceives it to be so without any other evidence. But to think that these victims of assault are more important because they are gay and to suppose that these witnesses have a special insight into crime motivation because they are gay, is to ascribe to gay people a characteristic that is lacking in the general population. This is prejudice.
The whole concept of hate crime when the victims are from selected groups such as race, religion or gender identity is morally problematic because it is to suppose that crimes against these people are worse and deserving of more severe punishment than crimes against the rest of society. But why should these human beings be treated as more special than everyone else? Why should these characteristics be more important than those?
I imagine in Scotland quite a lot of people are insulted or attacked because they support a particular football team. If I walked down the street in certain parts of Glasgow with a Rangers top, I might be insulted or attacked. But this means that if two people are attacked one with a Rangers top and one who is black without a Rangers top, only the latter would be a victim of a hate crime. But why should black people be protected by the law more than football fans? If two Rangers top wearing fans are beaten up, but one happens to be black the attack on the black person will be treated as racially motivated, if the fan perceives it to be so. But to suppose that it is worse to beat up a black Rangers fan than a white one is obviously racist.
The most problematic aspect of the Mr Yousaf’s hate crime bill is what it does to free speech. If an assault is racially motivated if the victim perceives it to be so, then so too something I write or say will be racially motivated if the victim perceives it to be so.
If I write something critical of Christianity, or if I say something insulting about Jesus Christ, it might be perceived by a Christian that I was motivated by hatred of Christianity. If such a Christian reports me to the police, how am I supposed to defend myself? I could argue that the Christian misinterpreted my article, but what if it really was insulting about Christianity? What if the Christian really did find it hateful to read my article? Would Billy Connolly risk being sent to jail for mocking Christianity if a Christian found it unfunny and hateful?
Mr Yousaf will no doubt say that he does not intend the hate crime bill to limit my ability to speak or write freely. But clearly if there is going to be a crime of hate speech it must be possible for me to commit it by writing an article about a religion or about race or by making a comment on Facebook or Twitter. What am I allowed to write and what am I not allowed to write? More importantly what was I allowed to write or say previously that I am not allowed to write or say after the bill? If the answer to this is nothing, then what was the point, but if it is now forbidden to write or say certain things, we need to know what they are otherwise how can we avoid being convicted.
If I write and produce a film similar to the Life of Brian, but this time choose to parody the Muslim Prophet, will I be safe from prosecution in Scotland or will I be convicted of a hate crime? What if lots of Muslims complain about my film and say they find it insulting and hateful?
If I am taking off my clothes in the woman’s changing area of a swimming pool and I see someone with male anatomy, am I allowed to politely ask them to leave? What if this person says, “I am a woman” and finds my attitude hateful, insulting and discriminatory? Will I be convicted of a hate crime in Scotland if I tell the person I don’t believe it is possible for men to become women?
What if one of my colleagues at work is a homosexual and he says that he is going to get married? What if I explain why I am opposed to gay marriage by explaining how the Quran forbids homosexual marriage and thinks homosexuality is wrong. Would I be convicted of a hate crime in Scotland for believing something that my religion teaches me that other people consider to be insulting and hateful?
Mr Yousaf would no doubt say I have completely misunderstood the intent of his bill. But the problem is that I cannot possibly know who might or might not be offended by what I write and who might find it hateful. If such a person described my writing as racist or motivated by hatred of a religion, the police are liable to treat this perception as true just as they are liable to treat the victim’s perception of racism as true if I attack a black person even if my motivation was something else entirely.
The most pernicious aspect of the hate crime bill is not who it convicts, but that it makes us so careful about what we write that we dare not say anything controversial especially if we are writing about one of the characteristics the bill is designed to protect. Far from being able to write thoughtful, provocative pieces on Islam, or transgender we will be reduced to politically correct cliches. This just makes for boring writing, because it is only when you are willing to push the boundaries of acceptable thought that you can come up with genuinely new ideas.
It is wrong to insult or attack someone because he is black, or a homosexual or a Muslim, but it is equally wrong to do this because he is a human being. Hate is wrong if it leads to actions that are criminal, but it is not wrong to hate. I should be allowed to hate Christianity and I should be allowed to insult and mock any Christian figure. My hatred only becomes wrong if I shout insults at Christians in the street, beat them up or vandalise and rob churches. But those actions would be equally wrong even if I didn’t hate Christians.
Nothing should limit my right to write freely about any topic including even if other people find that writing hateful and insulting. Letting their perception of hatred limit my ability to write and speak freely means there is a special group of people living in Scotland who can in theory control what the rest of us say write and do. But it is mere prejudice that elevates these people above everyone else and it is disgraceful that the Scottish Parliament has in effect created a form of reverse Apartheid in Scotland.
This post was originally published by the author on her personal blog: https://www.effiedeans.com/2021/03/humzas-hate-crimes.html