Let’s not expand ‘hate crime’ even further Clare Foges in The Times 14.06.20

The original article is here.

The man listens carefully to the voice of the officer on the phone. He is being warned. While the man has (legally speaking) done no wrong, he has thought wrong — and the authorities have noticed. Not a scene from the pages of Nineteen Eighty-Four, but from a Tesco car park in Humberside, where last year the former policeman Harry Miller took a call from a PC on account of some “transphobic” jokes he had retweeted (example: “I was assigned Mammal at Birth, but my orientation is Fish. Don’t mis-species me.”)

There followed a 20-minute lecture from the officer on biological sex and the rather sinister warning: “I need to check your thinking”. Senior officers from Humberside police subsequently intervened, telling Miller to wind his neck in. Alas for them, he didn’t fall into line. Miller took the police force to court for threatening his right to free speech — and won. In his judgment, Mr Justice Julian Knowles declared that “we have never lived in an Orwellian society.” But we are doing our best to create one, your honour!

The policing of hate crime and “hate incidents” makes thoughtcrime real. Since the Criminal Justice Act 2003, judges can pass down tougher sentences for certain crimes if the perpetrator was motivated by hostility on the grounds of race, religion, sexual orientation, gender identity or disability. In other words, the prejudice — the thought — is punished in addition to the action itself. Beneath “hate” crimes are non-crime “hate” incidents, which also need to be recorded and followed up by police, and which do not even require any evidence; a suspicion of prejudice is enough to damn the “perpetrator”.

And so in recent years we have had police time spent on such pressing matters as the dog that barked at someone in a racist fashion; a man who stood “intimidatingly” close to a woman in a wheelchair; newspaper cartoons that were found to be offensive; and a speech by the former home secretary Amber Rudd on foreign workers — all recorded as non-crime hate incidents.

Now, if campaigners have their way, hate crime could be extended further, to cover misogyny. Stella Creasy MP, leading the charge in parliament, first proposed the change in 2018, but withdrew it when the government announced a “comprehensive review” of hate-crime legislation. It is due to report this year, but in the meantime Creasy and others are tabling an amendment in the Domestic Abuse Bill to make misogyny a hate crime.

Though these campaigners passionately want to make life fairer for us all, I fear that expanding a bad idea further is a bad idea. A new (or edited) law should satisfactorily answer three questions: is it necessary? Is it clear? Is it enforceable? Making misogyny a hate crime answers none of these in the affirmative. It isn’t necessary, since laws to deal with rape, assault and harassment already exist.

When laws need to be created to keep up with new forms of criminal activity against women it is right that they should be, as with the “Upskirting law”, which was passed last year, criminalising those who stick a camera up a woman’s skirt. But adding a new layer on to existing laws only creates a two-tier justice system, in which crimes perpetrated against certain groups are taken more seriously than against others. Doesn’t this undermine the idea that all are equal before the law?

The move to make misogyny a hate crime fails the clarity test too. Misogyny could be interpreted from a huge array of interactions, from the terrifying to the benign. It could mean whatever the “victim” feels it to mean. The College of Policing guidance on this is so extraordinarily loose that I must quote it in full: “For recording purposes, the perception of the victim, or any other person, is the defining factor in determining whether an incident is a hate incident, or in recognising the hostility element of a hate crime. The victim does not have to justify or provide evidence of their belief, and police officers or staff should not directly challenge this perception. Evidence of the hostility is not required for an incident or crime to be recorded as a hate crime or hate incident . . .”

As long as the victim feels they’ve been victimised, that is enough, which in an era of showy victimhood is a dangerous thing. Under the capacious umbrella of “misogyny”, we may have someone on Twitter declaring a woman looks hot, or a workmate asking their colleague to go on a date, or a young woman called “sweetie”. On the website Everyday Sexism, which allows women to enter upsetting experiences at the hands of the opposite sex, you get an idea of what some young women now consider to be affronts: not just groping or wolf-whistling but being patronised by a visiting plumber, or insulted on account of their haircut.

This lack of clarity about what misogyny means could turn the hate crime of misogyny into a grudge vehicle for the #MeToo generation to settle scores and bother the police with incidents that are not worthy of their time. Which leads to the final test this fails: it is not enforceable. Yes, there would be a scattering of cack-handed follow-ups, Humberside police-style, but in general the police are (or should be) far too busy to deal with non-crime incidents.

In 2018 Sara Thornton, the former chairwoman of the National Police Chiefs’ Council, resisted the notion of making misogyny a crime, reasoning that “we do not have the resources to do everything that is desirable . . . I want us to solve more burglaries and bear down on violence before we make more records of incidents that are not crimes.” What rare and sublime sense.

Instead of changing the law to make misogyny a hate crime, we must do better at using existing law to prosecute and punish those who hurt women and girls. There has, to date, been one single successful conviction for female genital mutilation (FGM) in the UK. Rape charges, prosecutions and convictions in England and Wales are at their lowest levels in more than a decade; the number of prosecutions completed fell by 33 per cent over the year 2018-19. Then there is the odious “rough sex defence”, which has allowed dozens of men to claim that women died not as a result of murder but because consensual violent sex went wrong.

It is in these areas that we should be pushing for more resources where required and more action where needed, not creating a new law that would open the floodgates to the reporting of trivial incidents. Slapping the “hate crime” label on to misogynistic behaviour may mean a brief feelgood moment for women’s rights campaigners, but in the long-run it wouldn’t do much for the rights of women at all.