Orwellian response to prejudice
George Orwell’s novel ‘1984’ is a fictional story in which the government attempts to control the speech, actions and even the thoughts of the public. Unacceptable thoughts are a breach of the law and are called ‘thought crimes’. An ‘Orwellian response to prejudice’ is therefore one in which the state regulates every aspect of social life including controlling the thoughts of individuals in an attempt to wipe out the opportunity for prejudice thoughts and actions to exist. This essay is going to begin with an outline of the current hate crime laws in the United States and Britain.
It will then investigate the arguments in favour of hate crime laws with careful consideration of why these arguments may not be a justifiable and logical basis for these laws. The conclusion will summarise the main points, and attempt to provide an answer to the long-standing debate of whether hate crime laws are justifiable or unjustifiable. Hate crimes make headlines in the media. An example of a few include the brutal murder of Anthony Walker who was axed to death because he was black, the racist killing of Stephen Lawrence, and the homophobic nail bombing on Admiral Duncan pub, a gay pub in Soho, which killed three people.
There are thousands and thousands of other hate crimes that occur behind these headlines. In 2003/2004 the British crime survey recorded 200,000 racist incidents. This large number of incidents provides evidence that there is a need for some sort of action to stop these crimes from happening. Britain differs with the United States in that there is no legal term of ‘hate crime’, instead it is an offence under racially or religiously aggravated offences within the Crime and Disorder Act 1998 and the Anti-Terrorism Act 2001.
The Home Office defines hate crime as any criminal offence committed against a person or property that is motivated by an offender’s hatred of someone because of their race or religion, sex or sexual orientation and disability. (http://www. homeoffice. gov. uk/crime-victims/reducing-crime/hate-crime/) Britain was slower in the development of hate crime laws in comparison to the United States who by 1995 had passed hate crime laws in 37 states. It was not until 1998 that Britain had its own hate crime laws covering racially aggravated offences located within the Crime and Disorder Act 1998.
Under this Act a person is guilty of committing a racially aggravated offence if; ‘(a) At the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership (or presumed membership) of a racial group; or (b) The offence is motivated (wholly or partly) by hostility towards members of a racial group based on their membership of that group. ‘ (Crime and Disorder Act, 1998: s28) In America the hate crime laws only prosecute if the latter part of this has been fulfilled.
This has resulted in very few convictions mainly because it is hard to prove an offender’s thoughts actually motivated the crime. Britain took note of this when developing the law and added part (a), which allows for a prosecution based on the offender’s hate motivated action or speech and there is no need to prove the offender meant this hostility. **** In 2001, the hate crime laws in Britain were extended under the Anti-Terrorism, Crime and Security Act, to cover religiously aggravated offences. (Iganski, 2002: 3)
This was an immediate reaction to the 9/11 terrorist attack when the need to include muslims was a priority due to fears of a backlash of retaliation against them. They were not previously classified as a racial group under racially aggravated offences. Hate crime laws in the United States vary between different states and juristictions, but most states provide an increased punishment for crimes motivated by hate which excesses the punishment given for the same crimes motivated by other reasons. These laws mainly protect ethnic and religious minorities.
However, in some states they are extended to prosecute bias against gender and sexual orientation. British laws differ from those in the United States, as they do not yet provide extra punishment for offences motivated by prejudice against the victim’s sexual orientation, gender, disability, age, or political affiliation. However in 2003 the Terrorism Act gave judges the power to increase the sentence for homophobic crimes if they felt it was necessary. The way in which hate crime is currently dealt with is the underlying factor for debates within this topic.
It is said that hate crime laws produce two conflicting rights, the right to freedom of expression on behalf of the offender, and the right to be free from ethnic and religious victimisation. (Iganski, 1999,347) Opponents of hate crime laws claim that they conflict with the fundamental human right of freedom of expression, and therefore are an Orwellian response to prejudice. Supporters argue that when free speech conflicts with other people’s rights, and is used in a way that discriminates against others these people must be prosecuted. There has to be some limits to how far free speech can go. (Iganski edited, 1999:348)
Supporters of hate crime laws declare that it is not the offender’s opinion that is being punished, instead extra punishment is given because extra harm is caused to the victim. It is claimed that ‘hate crimes hurt more’. There are four different ways in which hate crimes have been shown to cause more harm to the victim. Firstly, some supporters believe that offenders motivated by hate are more likely to use excessive force, therefore resulting in greater injury to the victim, than parallel crimes motivated by other reasons. However, the empirical evidence supporting this claim is weak. It is also logically unjust.
On average, hate crimes do result in a more serious injury, but not all hate crimes cause more harm, this leaves cases where victims of hate crime are not actually subjected to greater harm. Surely it is unfair to give extra penalty to all hate crime offenders based on a law of averages, rather than decide each case individually. In addition, the criminal law already deals with the seriousness of the offence, or harm, by providing a range of punishments in order to equal the crime committed. Secondly, supporters of hate crimes justify the more severe punishment by claiming that these crimes inflict more emotional injury.
In 1999, 42 per cent of victims of racially motivated crime said that they had been ‘very much affected’ by the incident, compared with 19 per cent of victims of crimes that are unracially motivated. (Published on 12 December 2002 Findings from the 2000 British Crime Survey, Home Office Research Study 223. ) *** (fragment consider revising) The weakness of this argument is that evidence also shows that some victims of crimes motivated by reasons other than hate were more emotionally affected than some of those victims targeted because of hate.
Again the subject of averages crops up****, is it just to give an individual offender a more severe punishment because the law of averages suggest that victims of hate crimes may be more emotionally affected than victims of otherwise motivated crimes? Thirdly, Supporters of hate crime laws suggest that hate crimes send out a terroristic message. Apparently, an act of violence targeted at a member of a certain group results in repeat victimisation towards other members of this group. This can also create retaliation and counter-retaliation between the victims group and the offenders group.
However, opponents of hate crime laws have also found problems with this line of argument. Jacobs and Putter *** suggest that if a hate crime is punished more severely on the basis that it can cause retaliation, the offender is therefore being punished because he chose a victim who is more likely to also break the law by carrying out attacks of retaliation. Although this is a slightly distorted sense of logic, it is a valid counter argument. *** Other types of crime can also be said to have a terroristic result on society, however these are not punished more seriously.
Examples of these are crimes against the aged, sexual assaults and rapes, these all create a sense of fear within the community so why is it only hate crimes that receive the more severe punishment? Lastly, supporters for hate crime laws suggest that the motivations that cause hate offences go against dominant values in society. Targeting someone because of who they are goes against the commitment to equality and diversity that society today attempts to accomplish. Hate crime laws are there to punish the bad values of the offender, the thoughts and opinions that the government deems abhorrent.
Motivating values have always been used in criminal law to determine punishment. For example, if an offender killed somebody through self-defence he or she will be prosecuted for manslaughter instead of murder. *** The criminal law rewards normatively good values and punishes bad values. Of course those who believe in the right to freedom of speech are against this. Opponents of hate crime laws suggest an interesting point in that an offender who commits a crime because of prejudice is punished more severely than someone who commits the same crime for no reason.
This latter crime is taken less seriously in the eyes of the law. (Iganski, 2002: 9) Jeff Jacoby argues ‘hate crime laws create an indefensible double-standard by proclaiming that hurting some kinds of people is not as bad as hurting others’. (Ibid). Who is to say that bigotry should be more severley punished than greed, or lust, or whatever other reasons motivate people to commit crimes. Injustice between minorities The hate crime laws in both the United States and Britain do not cover all of those who fall victim to prejudice, and where they do the severity of punishments varies.
From this point of view it could be said that hate crime laws creates new injustices (Iganski, 2002:12) The laws in Britain only punish discrimination towards race, sex and disability. This leaves out a large chunk of victims who are discriminated against for other bias reasons such as age, sexual orientation, political opinion, HIV status and language (Tatchel, 2002: 55) All vulnerable groups should be protected equally, or not at all. Another issue to consider is whether the minorities actually want this extra protection in the first place.
To them it may be seen as ‘special treatment’, and a form of discrimination in itself. Hate crime laws could in fact be doing the opposite of what they are trying to achieve. Instead of creating a harmonious society, they could be seen as increasing the minority status of these groups by extending the punishments for crimes committed against them. Making their laws different to the laws protecting the majority could give individuals additional reasons to bias against them, as some may feel bitter about them receiving this supposed special treatment. Tatchel, 69) Conclusion: The conclusion to this essay is one that was not expected. As a person who had little knowledge of this issue a genuine belief was held that hate crime laws were perfectly justifiable. However, after reading the different literature the arguments in opposition to hate crime laws are more beleivable than those that jusify the laws. A brief summary of the main points is now provided to show how the justifications are so easily replaced with valid and strong objections against them.
The strongest argument in favour of hate crime laws is that they punish those people who go against the values held by the majority of society. The opposition argue that this results in an orwellian response to prejudice because thoughts are being punished and the right to freedom of speech is being violated. However, when has society truly had complete freedom of speech? Supporters of hate crime laws suggest that extra punishment should be given in excess of that given for a parallel crime motivated by other reason.
Their reasoning behind this is that hate crimes cause more harm to the victim. ‘Some’ evidence has shown that ‘some’ offenders motivated by hate will use force excessive of that used in a similar crime not motivated by hate. ‘Some’ evidence has also shown that ‘some’ victims of hate crime may be more emotionally affected than victims of otherwise motivated crime. Hate crime is also said to hurt more because it sends out a terroristic message and causes retaliation and counter retaliation between groups.
The opposing arcuments against these points are as follows; there is weak empirical evidence to suggest that hate crimes involve excesive force. Also, the criminal law already provides a scale of punishments which increase in seriousness in order to match the crime commited, is it necessary to add an extra punishment on top of this? The supporters of hate crime base their argument on evidence that suggests that on average excesive force is used, and on average the victims of hate crime are more emotionally affected.
Is it just to give every offender the same, more severe punishment, based on a law of averages. Each case should be decided individually. Also, punishing an offender more severley because he or she has chosen a victim who is more likely to retaliate is also unlogical. Hate crimes may be terroristic, however there are many other crimes that could come under this category. These crimes do not have a more severe punishment. An offender who commits a crime due to prejudices is being more harshly punishmend than an offender who commits a crime for the sake of it.
Again, this is unlogical. Just because the objections to hate crime laws propose a stonger argument than those justifying them it does not mean that hate crime laws should not be prosecuted. Cases of this kind should be thouroghly investigated. However, extra punishment for thoughts is not right. *** The only plausible solution is time. As time goes on and diversity continues individuals in newer generations should be more accepting. It is already apparent that the majority of older generations are (stereotypically) less open to minorities than younger generations.
As cultural diversity reaches the suburbs and villages there could be a chance that existing prejudices will be whittled out. Laws such as lowering the consent age of gay sex, and allowing gay marriages show that we are living in a more accepting society. These laws reward the victims of hate crime, rather than punish the offenders. This in turn sends out a message to society that these people are to be accepted as equals. Discriminating against someone because of their race, religion, or sexual orientation is incomprehendable although this may be the opinion of the minority.
Individuals are entitled to their prejudices just as long as they do not act them out by way of a crime against another human being. We are a part of a tolerant but outspoken society and this is something that we should all value. Current legislation only steps in when a thought is turned into an action. So far this is not infringing our rights to freedom of expression. Attempts to silence society by creating more hate crime laws that prevent bigotry thoughts being spoken should be approached with extreme caution otherwise we may