Below is a joint statement between the members of The Countess Didn’t Fight For This and members of our group Radicailín on the proposed Hate Crime Bill that the government is trying to pass in Ireland.
We represent two grassroots organisations, The Countess Didn’t Fight For This and Radicailín whose combined members are deeply concerned about the impact on freedom of expression, enforceability and unintended consequences of the proposed Criminal Justice Hate Crime Bill 2020 introduced by Senators Fiona O’Loughlin, Lisa Chambers and Robbie Gallagher.
While we welcome the undoubtedly, well-meaning motivation behind the bill, there needs to be a discussion with regards to the implementation and potential ramifications of this bill based on the broad and muddied scope of definitions.
The bill, in its current form, is not fit for purpose. The definition of hate is based not on objective or even the reasonable belief of the victim but is entirely subjective. There is no requirement of proof.
Are words and artwork covered in this? Does it cover online activity? Would liking or sharing materials perceived as offensive towards a protected category be considered a hate crime?
We are concerned it will impede on freedom of expression in criticising ideologies or beliefs. For example, if someone criticises the harshness of Sharia law with a post on social media, will that person be found guilty of an offence? Following a referendum in May 2018, the Thirty-seventh Amendment of the Constitution Act 2018, blasphemy is no longer a constitutional offence. But under the proposed Hate Crime Bill, will it once again become an offence since an individual’s religion is protected?
Hate crime, according to this bill includes any offence that is perceived by the victim or any other person to be motivated by prejudice based on the individual’s asylum or refugee status, race, colour, religion, nationality, ethnicity, disability, sexual orientation, transgender identity, sex characteristics, age or perceived age. However, despite 82% of recorded victims of sexual violence being females according to CSO, 50 women die every week from male domestic violence according to European Women’s Lobby and the fact that 230 women have died violently in Ireland between 1996-2019 according to Women’s Aid Ireland, sex as a protected category is not included in this bill. Is it because crimes against girls and women in Irish society is so common that the authors of the Bill knew that something so obviously unenforceable and impractical should not be included?
The bill also defines “transgender identity” to include transvestite, transsexual, intersexual or having changed gender under the Gender Recognition Act 2015. Currently, there are two biologically male prisoners in the women’s wing of Limerick prison because they have changed their gender legally on paper. We take issue with this as both are sex offenders and pose a danger to women. We need to have a grown up conversation in this country about the Gender Recognition Act which currently allows anyone to legally change their sex and therefore access single sex provisions without hormones or surgery. This bill could criminalise the debate we need to have.
We maintain our stance that people should have the right to critique ideas for a democratic society to flourish and we call on our public representatives to push for greater clarity around the definitions and urge you to consider the significant chilling effects on freedom of expression.
ENDS
Please note that while Hate Speech is not specified in the proposed legislation, the concerns raised is if the proposed bill is amended to also include Prohibition of Incitement To Hatred Act, 1989 to the schedule. The existing legislation is perfectly adequate.
According to the proposed Criminal Justice (Hate Crime) Bill 2020 introduced by Senators Fiona O’Loughlin, Lisa Chambers and Robbie Gallagher, “hate crime” includes any offence that is perceived by a victim or any other person, to be wholly or partially motivated by prejudice against a relevant individual based on said individual’s asylum or refugee status, nationality, religion, colour, race, disability, ethnicity (including members of the Traveller and Roma communities), gender identity and expression, sexual orientation, transgender identity, sex characteristics or actual or perceived age.
If the goal of the Hate Crime Bill is to bring proper justice to minorities, perhaps a better solution would be to actually review the existing Acts and impose heavier penalties on offenders regardless of whatever “group” they belong in.
The bill also defines transgender identity as “transgender identity” includes transvestite, transsexual, intersexual or having changed gender under the Gender Recognition Act 2015.
As we previously pointed out in our post about the Gender Recogntion Act in Ireland, TENI considers microaggressions and harmful digital communications to be hate.
Microaggressions include “behaving or acting strangely”, “making strange facial expressions”, misgendering and questioning one’s biological sex. They explain that most microaggressions manifest as transphobic expressions and rejections of non-binary conceptions of gender. (STAD Report 2014-2016 p.9) None of this is hateful nor does any of it incite violence or hatred against trans individuals.
There are many problems here. What TENI deems to be “transphobic” includes acknowledging that women are biologically female and that males cannot be women biologically regardless of surgery.
Sinead, Gender Ideology in Ireland and Women’s Rights
Case in point: A few months ago, the hashtag #OnlyFemalesGetCervicalCancer was trending on Twitter because they started banning accounts that stated that only females get cervical cancer due to the erasure of the word woman or female in Cervical screening materials. In gender identity ideology, this is considered transphobic despite the fact that it’s true and is based on material reality.
If every time the word woman or female is used instead of “gender-inclusive” language and this offends some people who don’t identify with stereotypes, would being pro science or pro reality, meaning believing and knowing that human species’ sex can only be categorised as a binary, as in, either someone has sperm or ova be considered a hate crime?
So would informative videos and pretty much every biology book published be considered hateful?
If the acknowledgment of women as a sex-class is to be deemed as an act of hatred then women’s right to organise politically against female oppression will be inhibited as well as our ability to define this oppression and analyse how and why it manifests.
Microaggressions as defined by TENI are not incitements of violence or even displays of hatred but instead encompass correctly-sexing individuals (intentionally or unintentionally) and recognising reality. Making microaggressions that is difficult to prove a hate crime, is in violation of the people’s right to free speech.
Sinead, Gender Ideology in Ireland and Women’s Rights
There are many things that only females can experience. There’s not one female experience but we can collectively relate to the issue of male violence against girls and women with FGM, child brides, femicide, surrogacy, trafficking etc.
Crimes are deplorable but perhaps there is another way we can combat that without having to push identity politics at the forefront. If the goal of this proposed Hate Crime Bill is to promote tolerance and equality, we need to ensure that whatever is in legislation doesn’t actually hinder social stability by further exacerbating group divisions.
How are speech, thoughts and beliefs going to be policed and how will we be able to provide checks and balances on accusations solely based on any offence perceived by someone?
- Resistance to Hate Crime as an Aggravating Offence
- Enhanced sentencing is a retributive justice measure constructed to address a social problem.
- It does not address the substantive issues of bigotry or prejudice within communities or society at large. Restorative justice and preventive education models are a more progressive and communitarian response to expressions of hatred than liberal criminalisation, which seeks to punish the individual rather than enhance the safety and freedom of society (the common good) by eradicating the problem.
- Concerns have arisen in other jurisdictions where a ‘pro-charge’ policy has resulted in hate crime charges being pursued in court where there is insufficient evidence to support the aggravated element of the offence. Where the evidence of hostility is weak, focus on the aggravated element can lead juries to acquit altogether, even if there is evidence to support a serious primary offence.
- There is also evidence in other jurisdictions that the expansion of the criminal legal system has exposed vulnerable communities to more danger from prejudiced institutions, which were deemed to be “far more powerful and pervasive than individual bigots.”
- Limitations of the proposed Legislation
- Subjective Test
The idea of motivation implies a causal relationship between hate and a criminal offense, but the nature and strength of the causal relationship is not specified in law. The proposed legislation is based on a subjective test rather than an objective test. As with the defence of provocation, the subjective test is unique in Ireland and an outlier as compared to other Common Law jurisdictions. Judges and reformists have been calling for decades to replace subjective standards of reasonableness with objective standards, yet this Bill seeks to reinforce the former.
- Criminalising Thoughts and the Content of Speech
Motivation as a grounding cause for hate crime seeks to punish individuals for their thoughts. An assault and robbery on a person of ethnic background could result in a different sentence from an assault and robbery on a person of wealth, if the former is deemed to be motivated by hatred whilst the latter may be motivated by envy. This amounts to the same criminal act receiving different punishments based on the thoughts of the offender.
Whilst Hate Speech is not specified in the legislation, it is implied that motivation would be circumstantially and subjectively grounded on the content of speech prior to or during the commission of an offence. The criminalisation of speech content is an entirely regressive concept which an contrary to the Constitutional right to freedom of expression as provided for under Article 40.6.1.i of Bunreacht n hÉireann
The most cogent form of evidence to prove the hostility element of a hate crime is witness testimony of verbalised prejudice, expressed during the commission of an offence. In the absence of third-party witnesses, this will be extraordinarily difficult to prove. In the case of people with intellectual disabilities, who in have no capacity in law, this is likely to be impossible as many may not have capacity to recognise prejudicial statements or disablist slurs, or reliably testify to their nature. These limitation result in the unfair application and distribution of Hate Crime as an aggravation across all vulnerable groups.
- Misogyny as Grounds for Aggravation
Notwithstanding the resistance to the enactment of Hate Crime legislation stated heretofore, it is alarming that the proposed Bill has excluded misogyny as an aggravation for sentencing.
- Misogyny is grounded on the perception that women are inferior to men, and it functions to oppress women in society. It has long been established that offences such as rape and sexual assault are not sexually motivated. Equally, femicide is the misogynistic killing of women by men, distinguishable from the killing of men, by men, but for different reasons and in different situations. Many vulnerable women are specifically targeted for violent crimes by virtue of a visceral hatred of their participation in the sex trade.
- Misogyny is also an avenue to extremism, as men’s rights activists have become increasingly radicalised in online forums, propagating and expressing ever more violent prejudice and hatred against women. Recent events in Poland, and Cancun demonstrate the violent extremism of misogynists in their efforts to oppress and suppress women in society.
- Misogyny as a motivation for violent crimes against women is well established and any Hate Crime legislation must include it as grounds for aggravated sentencing. Given that the number of women victimised by misogyny is greater in number than other vulnerable groups, misogyny should be ranked first in any array of grounds stated in the Bill.
- Proposed Amendments to Bill
Interpretation
In this Act— [Insert after line 33]
“Misogyny” is defined as sexist hatred of, aversion to, hostility to, or prejudice against women and girls;
“Women” are defined as adult human females as observed, classified and recorded at birth according to their female sex characteristics;
“Girls” are defined as pre-pubescent human females as observed, classified and recorded at birth according to their female sex characteristics Offence aggravated by hate crime2. (1) An offence is aggravated by hate crime against a relevant individual if—(a) at the time of committing the offence, or immediately before or after doing so, a person displays [insert: misogyny,] racism, homophobia, xenophobia, anti-religious prejudice or disability hate crime towards a relevant individual, or(b)the offence is motivated (wholly or partly) by [insert: misogynistic,] racist, homophobic, xenophobic, anti-religious prejudice or disability hate crime towards a relevant individual.
If you share our concerns, please send an email to your representatives. Use the letter templates and find their details here.
