The dangerous logic of hate crimes

Yesterday, April 1, Scotland’s Hate Crime and Public Order Act 2021 went into effect. The date may amuse some, but this new law is unlikely to prove very funny in the long run. It abolishes the common law offense of blasphemy, a law that has not been invoked in practice since the mid-19th century. At the same time, it consolidates previous laws dealing with, for example, expressions of racism, while extending their scope to include stirring up hate against someone or some group on the grounds of age, disability, religion, sexual orientation, and transgender identity.

Religious leaders, politicians, and lawyers pushed back against the legislation in 2021 and this version of the law is modified to include new protections. Indeed, the law makes clear that discussion of certain matters, including both religion and transgender identity, is protected.

But there is a problem here: Who decides what counts as hatred? I have always found the idea of hate crimes in general to be somewhat perplexing, especially when applied to acts of physical violence as a reason for escalating penalties. How many assaults or murders are committed out of anything but hatred of some kind? But at least with such crimes there is an objective moral calculus that can be deployed. To borrow Thomas Jefferson’s language, if a crime picks somebody’s pocket or breaks his leg, I can make an assessment of the damage done. When we move into the realm of speech crimes, the situation becomes a lot more tricky.

Who decides if a statement about, say, gender or sexual identity is hateful and on what basis? The law uses the term “reasonable person” on numerous occasions. For example, a person is deemed to have committed a hate crime offense if he “communicates to another person material that a reasonable person would consider to be threatening, abusive or insulting.” The problem here is that today “reasonable” has no real content. Indeed, the legislation uses the adjective “reasonable” again and again as the essential criterion in judging whether an act or statement is a crime, but it offers no definition. That is surely a worrying lacuna. We should remember that this is a world where J.K. Rowling’s (to me perfectly reasonable) claim that we don’t need to talk about “people who menstruate” because we have the term “women” can be described by GLAAD as “dangerous.”

Who is correct? Whose rationality are we talking about here? Trueman’s or GLAAD’s? And how would the courts adjudicate that question? Gesturing towards Article 10 of the European Convention on Human Rights merely passes the buck to another problematic document but does give a clue as to how “reasonable” may be understood in the courts. Anyone who doubts this should look at the official ECHR guide to this, especially Paragraph 599, where restrictions on promoting homosexuality to minors is identified as motivated by “homophobia.”

The law has other interesting aspects. “Evidence from a single source” is sufficient to establish that an offense is “aggravated by prejudice.” Does that mean that the testimony of one person offended or hurt by a comment or conversation is sufficient to trigger legal action? What about the minister who preaches on Romans 1 and offends somebody? In theory, he should be protected by the law, but the vagueness of “reasonable” gives grounds for, well, reasonable doubt about that.

The act also allows police extensive enter-and-search powers to places where they have reason to believe a hate crime has been committed. Might that include the dining room of a house where a father expressed deep concern over his teenage daughter’s desire to transition? As it stands, it would seem that it could. And then there are the “third-party reporting centres” where individuals can report alleged hate crimes: libraries, housing associations, and even a Glasgow sex shop. Apparently, the supporters of the legislation consider that last venue to be—ahem—an entirely “reasonable” choice.

In short, the law looks sufficiently vague for it easily to become an instrument by which those in power can punish those who hold views they dislike. And therein lies the most deceptive part of the law. It declares in its introduction that it “abolishes the common law of blasphemy.” It may consign an ancient long-dead statute to the ash heap of history. But it establishes a new law of blasphemy, the full application and extent of which will only become apparent in the coming years. You won’t be burned at the stake. But you could go to prison for seven years.