WATCH out for the new buzzwords: Hate Crime! Last month Minister for Justice Frances Fitzgerald declared she was ‘open to reviewing’ hate crime legislation after an English tourist was stabbed in Dublin city centre, an African woman and her two children were forced out of their home in Clondalkin, and men savagely attacked an Indian priest in Portlaoise.
Coincidentally, the Irish Council for Civil Liberties demanded that the Government should legislate for hate crime, saying it was widespread yet ‘remained in the shadows’ of the Irish criminal justice system.
The ICCL submission called for crimes against the person, property, sexual offences and public order offences to be regarded as ‘hate’ crimes when motivated by the bias of sexual orientation, race, colour, membership of a minority, gender, age and disability.
ICCL director Mark Kelly, who launched a report entitled Out of the Shadows, spoke of the urgent need to tackle the problem of hate crime, an opinion endorsed by the University of Limerick Hate and Hostility Research Group which said ‘hate crime lives in the shadows’.
So what is this phenomenon that inhabits the umbra, penumbra, shady places, dark areas, the gloom and obscurity of the Law?
Well, for starters, in America hate crime is defined as any felony motivated by sexual orientation, gender, religion or race. Presumably, Irish hate law would be something similar. The people at Limerick University are saying that it is the responsibility of the legislature ‘to send out a clear message’ that behaviour ‘aggravated by hostility’ (hate crimes) must not be tolerated.
Hate crime can be associated with hate speech which, in turn, is defined as any speech, gesture, written words or display that may incite violence or prejudicial action against an individual or group.
But for some liberals the jury is out as to the best way of constructing a comprehensive definition of hate crime, how to put the law to good use, how to determine who benefits from it, and how hate law is distinguishable from civil law which also deals with crime that’s motivated by hate, bias and prejudice.
For instance, if an intruder shouts ‘you effing queer’ at the unfortunate householder whose house he’s ransacking, does that mean he’s committing a hate crime?
If so, it raises this question: does hate crime legislation imply that the murderous action of an Ordinary Decent Criminal who bashes in his victim’s head is less terrible than that of a criminal who screams anti-gay obscenities as he bashes in his victim’s head?
And another question: can hate crime legislation really do anything for civil rights if the justification for its existence is nothing more than the punishment for crimes committed, and not for a radical change to a society in which bigotry is allowed flourish?
Does it deter bigots? And are some murders more wicked when triggered by prejudice, bigotry and bias? Recently the deficiencies in hate crime legislation came to the fore in the run-up to the 12th July Orange celebrations. The Six Counties possesses a raft of such legislation but it did not deter a group of loyalist thugs from proclaiming to the international media that they intended to crucify Catholics.
On the other hand, would jailing the thugs under hate crime legislation have contributed in a serious way to making the North a fairer place, considering that the Statelet itself is rotten to the core?
The nub of the question is this: anti-hate legislation may be well-intentioned but does it work? Is it even necessary? For instance, to what extent is violence a serious problem for groups vulnerable to hate crime: the homosexual, lesbian, bi-sexual and transgender communities?
And what will be the response of other marginalised groups, such as battered wives, who may not benefit from the protection of such legislation?
The cautious response of Justice Minister Frances Fitzgerald to the demand for hate crime legislation was interesting. She stated that she was ‘open to reviewing’ such legislation but pointed out that Ireland had not seen ‘dreadful escalations’ in racist violence of the sort in countries where respect for diversity was absent.
She reminded the proponents of hate crime legislation that since 1989 Ireland had appropriate and comprehensive legislation banning the incitement of hatred: the Incitement to Hatred Act 1985.
It is also a fact that some liberals fear the proposed new legislation could be used to set limits on free speech. They’re asking why the legislation is necessary at all when under the Prohibition of Incitement to Hatred Act 1989 it is already an offence ‘to publish or distribute written material that is likely to stir up hatred against a group of persons in the State or elsewhere on account of their race, colour nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation’?
At the same time, Article 40.6.1 of the Constitution guarantees the right to free speech on condition that liberty of expression does not undermine public order or the authority of the State.
HATE LAW AND THE POPE
Interesting, too, that the most prominent incident in recent years regarding the Incitement to Hatred Act concerned the Bishop of Raphoe, Philip Boyce. It took place in January 2012 and was commented on by The Sunday Independent, the Iona Institute and other media.
It involved a sermon given by the good bishop, entitled To Trust in God. He delivered the homily to worshippers during a novena at the Marian shrine in Co Mayo and details of it were subsequently published. However, in the opinion of a former Fine Gael candidate, two key passages in Dr Boyce’s sermon broke the law.
One of the passages referred to the Catholic Church in Ireland being ‘attacked from outside by the arrows of a secular and godless culture’.
The complainant said statements of this kind were an incitement to hatred of dissidents, outsiders, secularists, within the meaning of the Act, who are perfectly good citizens within the meaning of the civil law.
The Gardai referred the matter to the director of public prosecutions and, as far as we can ascertain, there it has remained. But here’s the fascinating bit – a second passage from the bishop’s homily stated: ‘For the distinguishing mark of Christian believers is the fact they have a future; it is not that they know all the details that await them, but they know in general terms that their life will not end in emptiness’.
This was actually a quotation from the 2007 encyclical Spe Salvi. In other words, the Gardai unwittingly investigated a religious comment written by Pope Benedict XVI on the basis that it might constitute an example of hate speech! How mad was that?