The new Incitement to Hatred Bill fails to define what “hatred” means

The Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 fails to define what “hatred” means. It says:

2. (1) In this Act—

“hatred” means hatred against a person or a group of persons in the State or elsewhere on account of their protected characteristics or any one of those characteristics;

This is a circular definition that does not define what “hatred” means.

The problems with including the word “hatred” in the law

Laws should be accurate, understandable, and enforceable. Their words and definitions should be coherent, universal and inclusive, with clear and justified boundaries, and free from ideological assumptions. A person should be able to know whether or not they are breaking it.

Laws based on ambiguous or emotive words cannot do this. “Hate” crime laws are not about hate. They are fundamentally about prejudice and bias against members of a group with common characteristics. Here are several examples of this concern being raised by experts:

“Reflecting academic suggestions that hate crimes commonly involve bias or prejudice (rather than hate), ODIHR uses the term ‘bias’ in defining the hate crime motivation, rather than the more extreme emotion of ‘hate’. Similarly, Sweden’s National Council for Crime Prevention includes ‘fear, hostility or hate’ in its definition of motivations behind hate crimes, while in the UK the College of Policing’s hate crime guidance, which applies to all 43 police forces in England and Wales, similarly does not use ‘hate’ as its definition but rather the lesser emotions of ‘hostility or prejudice against an identifiable group of people’.”
— Defining Hate Crime Internationally, Jon Garland and Corinne Funnell, Globalisation of Hate, Oxford University Press, p22

“According to Hannah Arendt, ‘words can be relied on only if their function is to reveal and not to conceal’ (1996:66). In that case, the pairing of the two words ‘hate’ and ‘crime’ is notoriously unreliable. There are crimes motivated by genuine hatreds that would never be prosecuted as hate crimes, and the term ‘hate crime’ can cover forms of bias that would never qualify as hatred on any conventional use of the term. However, the ambiguity of ‘hate’ is only one of several forms of confusion about the meaning of ‘hate crime’. Describing it has been described as ‘notoriously difficult’ (Hall 2013:1) and like entering a ‘conceptual swamp’ (Berk, Boyd, and Hammer 2003:51). Definitions abound and consensus seems both improbable and to some degree undesirable.”
— Conceptualising Hatred Globally, Thomas Brudholm, Globalisation of Hate, Oxford University Press, p33

“And what does ‘hate’ signify in this context? Is it an emotion, an attitude, a disposition, or something other? There are some reasons to prefer the terms ‘bias’ and ‘prejudice’ to ‘hate’—they conceptually imply that the attitude is at fault, and they are attitudes connected to groups, not individuals.”
— Hate Crime Concepts and their Moral Foundations, David Brax, Globalisation of Hate, Oxford University Press, p54

“Hate speech constitutes a growing phenomenon around the globe. In order to better address problems linked to hate speech, such as discrimination and the commission of physical hate crimes, policy and lawmakers have tried, unsuccessfully, to define it.”
— How Should We Legislate Against Hate Speech? Viera Pejchal and Kimberley Brayson, Globalisation of Hate, Oxford University Press, p247

Tackle Prejudice with Education, Tackle Crime with the Law

There are two aspects to prejudice-motivated crimes.

• Prejudice is the internal motivation. It can range from bias to hatred, filtered through tribal paranoia, a desire to bully, or a desire for revenge for some real or imagined injustice.
• Hostility is the outward behaviour. It can range from discrimination to harassment, intimidation and violence, and ultimately to oppression and persecution.

These types of prejudice and hostility have in common that the victims are targeted because of their membership of a group. However, they have different outcomes.

• Prejudice against groups leads to disharmony, discrimination, segregation, inequality and alienation among diverse individuals who could otherwise live together more happily.
• Prejudice-motivated hostility can at its worst be similar to terrorism, which both harms innocent people, and also sends a threatening message to other people who are members of that group.

These differences mean that we must challenge them in different ways.

• We can only change prejudice, bias and hatred by education, political and community leadership, and social pressure. We cannot change how people think by making it illegal.
• We can challenge hostility, discrimination and violence by making it illegal. And we can make prejudice an aggravating factor when it is a motive for an existing crime.

We have elaborated on these matters in our submission to the Department of Justice’s consultation on hate crime and hate speech laws, which you can read here.