Not sure about this at all . . . . . .
>Really? Isn't punishment for one's motivation a further step down the road
>to criminalising what people think? Traditionally legal systems have
>punished people not for what they think but the acts that they
intentionally
>commit. Whatever the person's motive, all the court wanted to know was
>whether there was a criminal act and whether it was committed
intentionally
>by the defendant. Sentencing was of course a different matter
There seems to be a distinction here between "sentencing" and "punishment" which I'm not sure holds up. And people can be convicted for the crime of being drunk in public, which is not an act.
>- the nature
>and circumstances of the offence, motivation, the defendant's character,
>police records and social enquiry reports could all be taken into account
>when deciding the form of retribution. The introduction of motivation into
>the process was not about sentencing - it effectively created a new crime.
There is, unless I am wrong, no way for the legislature to codify an aggravating circumstance without creating a new offence. For example, arson in a naval dockyard is a different offence from arson, despite the fact that one would logically have supposed that naval dockyardness was merely an aggravating circumstance for the crime of arson. Drunk driving is not the same as careless driving. Aggravated assault is different from assault, as is sexual assault.
>It is important that motive should be disregarded in the matter of
criminal
>liability because in a free society the law punishes acts not thoughts.
You
>can only be held responsible for what you do, not what you think, believe
or
>want. Only those acts which are harmful are prohibited. While there are
many
>types of harm recognised by the criminal law, in recent years, the
>category of mental harm has unfortunately been much expanded. While harm
>originally centred on the disruption of the public peace by threats or
>abuse, now it becomes distress to one person caused by just about
anything.
Not true that this is an innovation -- criminal libel has been on the books for a very long time. "Just about anything" is clearly hyperbole.
>One effect of this is to make words as well as deeds much more susceptible
>of prosecution. There is also now a tendency to categorise as harmful
those
>acts which persuade or encourage another to commit a harmful act.
Persuading or encouraging another to commit a harmful act has been a crime ever since it was known as "tongue-reddening" under Saxon law.
>It is here
>that we see the expansion of the category of "hate crimes". While you are
>entitled, in a free society, to hate who you like, it has in many
countries
>now become a crime to incite particular forms of hate. Behind this change
>lies three very dangerous assumptions
Look at these assumptions in the context of the last 100 years of history. While perhaps "dangerous", the first two are also very well-supported by the available evidence.
>- people are not capable of
>withstanding certain ideas, are not able to think or believe something
>without acting violently upon it, and are simply not entitled to have one
>type of belief. Criminalising racial motivation gives direct effect to
that
>last idea. It is a thought crime.
>Using the pretext of clamping down on racial hatred (and the argument
goes,
>what right minded person could disagree with this?) the authorities are
>increasingly sending a
>message that the state will decide what we can and cannot think.
Or alternatively, sending a message that those brown people are getting pretty sick of washing the word "Paki" off their front doors. I simply do not accept that the impetus for the recognition of racial hatred as an unacceptable attitude came from the state.
>This
>strikes at the idea of the moral autonomy of the individual which lies at
>the heart of bourgeois democratic society. Sensible human beings are, in
>this world view -
>treated like a bunch of zombies ready to be activated by some inflammatory
>language before marching off to commit an atrocity. Encouragement of a
>particular view thus becomes a crime because it might 'lead to' violence.
This is not compatible with your "mental harm" argument above. The UK crime of "Incitement to racial hatred" contains no test that the act encourage the commission of harm on anyone. It recognises that raical hatred itself is harm, in that it makes it more difficult for people to live their lives.
>In reality, the roots of racist violence and other forms of bigotry lie
deep
>in any oppressive and exploitative society.
Bouregois bastard that I am, I tend to think that the roots of bigotry lie in the minds of bigots.
>To address them requires the
>fullest possible freedom - and thus opposition to the creeping menace of
>hate and thought crimes.
Hmmmmm ... this seems a bit too convenient. I find it implausible that addressing the roots of racist violence requires the "fullest possible" freedom rather than, say, the normal freedoms available to someone living in the United Kingdom today, plus or minus a bit. To say that the repeal of the Incitement to Racial Hatred laws would be a victory for anti-racists would require a bit in the way of evidence, given the successful record of those laws (when was the last race riot in the UK? How about the last race riot started by white people?)
dd
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