The problems with vilification legislation

A raft of new legislation is being passed throughout the Western world. These laws are called by various names, such as vilification or tolerance or discrimination laws. Sometimes they are referred to as hate-crime legislation. Whatever their title, these laws are problematic for a number of reasons. While the intentions behind them may have been good (to reduce hatred and vilification) the outcomes have been far from ideal.

There are different types of vilification laws, based on a wide variety of issues, such as race, religion, gender, sexuality and ethnicity. They often come with stiff penalties if a person is found guilty. If the aim of these laws has been to reduce hatred, hostility and differences, it would appear the opposite has been the case. These laws have generated a number of worrying outcomes. I list here ten major shortcomings of this type of legislation.

The first problem with these sorts of laws is that they tend to confuse different issues. While some aspects of vilification legislation may be acceptable in one arena, they often are not in another. For example, one should not mistreat or discriminate against someone because of something they cannot help, such as their country of birth or their gender. But these laws are less helpful in other areas, such as in lifestyle choices or in religious beliefs. When a belief or behaviour is chosen, it is quite different from something that is intrinsic to a person and cannot be altered.

Therefore in Victorian law (the Racial and Religious Tolerance Act 2001 (pdf file 112KB)) we have the conflation and confusion of two quiet different issues: race and religion. Race cannot be helped. You are born into one race and remain a member of that race for the rest of your life. But religion is different. While most people at first follow the religious practices of their parents or community, when older, people will often accept or reject that religious upbringing. Religious conversion is a chief example of this.

There are a few rare exceptions, when both race and religion overlap, as among Jewish people. Jews can be described as both a race and a religious community. But some Muslims want to claim both race and religion for their faith, something which is clearly far-fetched. Similarly, some homosexuals argue that they are born that way, and can no more help being that way than can someone who is black-skinned, red-haired or left-handed.

But sexual preference is not at all akin to racial make-up. Increasingly however vilification laws are being passed which include sexual orientation. This is a very bad application of what may have been a good starting principle: that of preventing discrimination and hatred based on genuine unalterable characteristics.

As a result Victoria’s vilification legislation confuses two quite different issues, and muddies the waters from the very beginning. Fortunately two other Australian states, South Australia and Western Australia, have both recently dropped plans for religious vilification legislation. They have realised that while there might be a case for racial vilification laws, there is no rationale for religious vilification legislation.

The second difficulty with vilification laws is that they are usually broad, vague, nebulous and filled with ambiguous and unclear terminology. Consider the Victorian Act. It speaks of “severe contempt”, “revulsion” and “severe ridicule”. How exactly does one define such terms? What may amount to one person as severe ridicule may appear to another a bit of harmless fun. Such terms are far too subjective, arbitrary and loose to serve any useful role in a judicial setting.

Good legislation should always have not only clear terminology, but also clear aims and objects. A law is a bad law if one is never quite sure whether it applies to oneself or not. Such fuzziness in the legislation makes these laws particularly vulnerable to misuse and abuse.

Acting “reasonably and in good faith” is part of the exceptions in the Victorian legislation. Yet two Christian pastors, who thought they were acting in exactly this way, were told by a judge that they were not. So some official must now determine, with all the wisdom of Solomon, what is in good faith and what is not.

In fact, the very issue of acting in “good faith” seems to be thrown into doubt in the Victorian Act when it states that a “person’s motive in engaging in any conduct is irrelevant”! If motivation is irrelevant, then how can one begin to even speak about acting in good faith? Is that not a matter of motivation and intent?

The third drawback with these laws is that they are usually instigated by particular members of the community at the expense of the rest of society. In Victoria it was mainly certain Muslim and Jewish groups who pushed for the legislation. There was no general demand for the legislation. There was no groundswell of public support for such laws. Indeed, there was no deluge of hate cases or vilification accusations being made just prior to it. This was simply the work of several minority groups effectively seeking to silence other groups in society, and using the heavy hand of the law to do so.

The numbers bear this out. When the Victorian legislation was first debated, the government received 5,500 submissions on the issue, with almost all of them against it. And the Victorian Opposition received 10,000 letters and emails, with nearly all of them unhappy with the bill. In spite of this huge outcry by the community, a handful of politicians, influenced by a handful of minority activists, foisted this unpopular and unnecessary law upon all Victorians. So much for democracy at work.

This point is further demonstrated by the defenders of the bill. Twice I publicly debated the author of the legislation. On both occasions she said that she did not feel there would be many cases at all arising because of this legislation. But as I pointed out, if that is the case, why do we need the law in the first place? If so few cases are expected, then that proves that things are fine as they are, and we do not need this big-brother legislation forced upon us.

The fourth problem with these laws is that most Western nations and states already have legislation on the books that makes certain activities illegal, be it assault, incitement to violence, defamation, slander or libel. All serious activities that do warrant political and legal sanction are already covered. So why the need for these extra laws, unless there is an attempt to promote someone’s agenda, or to engage in social engineering and manipulation?

Fifth, usually in these laws the burden of proof is on the one accused of being offensive or vilifying. Unlike the usual course of judicial events, the person charged is in effect found guilty until proven innocent. The charged person must prove why he or she has not committed the crime, or why they qualify for any exemptions. And usually they must bear all the expenses as well (such as court costs, legal costs, and time off work). In the meantime, the one bringing the charges gets the full backing of the state, often with all costs born by the state (or taxpayer). Hence these laws are discriminatory and are unjust in their application.

Sixth, when religious cases are involved, we have the anomaly of a secular judge or authority making complex judgments on matters of religious and theological dispute. When religious people themselves are quite divided on many questions of theology and religion, how is some secular arbiter who knows nothing of the theological subtleties and complexities supposed to make a helpful and informed decision? In Victoria we had a judge who appeared well out of his depth and expertise making finely tuned religious and theological judgments concerning issues that would baffle and divide even professional theologians and religious educators.

This is a case of secular governments getting in the way of freedom of religious expression. The state should not encroach into religious matters, and should not set itself up as an arbiter of theological disputes. Religious discussion and debate should be allowed to take place in the public arena, and not be stifled, controlled or censored by an intrusive state apparatus. It is exactly the hallmark of totalitarian states when governments decide upon questions of religion and belief. By telling people what to think and what to believe, the state moves well beyond its role in a democratic society.

The seventh problem with religious vilification is that the whole idea of bringing up concepts like offence and vilification is quite bizarre. Religious truth claims by definition imply that some religions are true, while some are false. They imply that some actions are good, some are bad. And they imply that some religious activities are appropriate, while some are not. Of course a Muslim will be offended if a Christian says that Jesus is God. Of course a Hindu will be offended if a Muslim claims that only Islam is the final and true religion. Of course an atheist will be offended if a Jew insists that God exists. Of course a Christian will be offended if a Muslim says Jesus did not die on the cross and rise again. How could a devout believer not feel offended in such ways?

The very nature of religious truth claims will involve offence on the part of those who do not adhere to them. If I seek to show the foolishness and shallowness of the claims that evolution is the only explanation of human dignity and purpose, a secular humanist may well feel threatened, ridiculed and reviled.

If an atheist scoffs at the claims of Mohamed and mocks the Koran, of course a devout Muslim will take offence. If homosexual activists send up nuns in a pride march, of course Catholics will feel ridiculed and vilified. If I say that Jesus is the only path to eternal life, of course universalists will be offended.

To seek to do away with all feeling of ridicule, offence and insult would be to effectively rob most religions (and especially those which make exclusive truth claims) of most of their core doctrines and teachings. We will be left with a watered down lowest-common denominator mish-mash that offends no one. And one which is totally devoid of truth as well.

But of course many of those behind the multicultural lobby and the push for tolerance (and the authors of these laws) have exactly that in mind. Indeed, plenty of inter-faith councils and other ecumenical bodies have stated their aims quite clearly in this regard. They seek to rid the world of what they consider to be offensive religious claims. And usually the claims of Christianity are first and foremost the ones they have in mind.

The eighth difficulty with these laws is that hate crimes are double jeopardy. Not only are the crimes themselves judged, but now so too are the “bad thoughts” behind them. From a religious perspective, all crimes are based on hate. Whenever a person commits a crime, be it burglary, arson or incitement to riot, it is the opposite of what we are called to do: to love our neighbour. But hate crime legislation says we must punish you further for the hateful thoughts that went into your illegal action. Indeed, it is even worse than that: vilification laws create a crime where none previously existed. By simply expressing a point of view, which results in no outward action, a judge can rule that your words may have incited violence or hatred. So, we have created a crime without victims. There is only the potential for an unpleasant outcome to occur. Someone, somewhere, sometime might be offended. No crime has taken place. Just some vague potential for someone to feel offended, maybe.

The ninth problem is that vilification laws are bad laws because they create a new crime based on thoughts. Hate crime laws punish people for their thoughts. In turn, thought police are needed to make sure everyone is thinking politically allowable thoughts. But who determines what a hate crime is? And how? If a homosexual activist calls a Christian a bigot, is he guilty of a hate crime? If a secularist calls a concerned Catholic a religious Taliban, is that a hate crime? Indeed, there seem to be a lot of double standards here. Christians are vilified everyday, but I do not hear those screaming for tolerance and acceptance rushing to their defence. But if a Christian dare stand up for what he or she believes in, they are dragged off to the tribunals by those same advocates of tolerance.

The tenth shortcoming is that the very idea of vilification legislation is to severely curb freedom of speech. The right to argue one’s case, to criticise other points of view, to point out differences of religious and political viewpoints, these are all fundamentals of a free and democratic society. When we say that government officials will decide who is allowed to debate issues, and how that debate will take place, we are moving away from freedom and towards repression. And when state authorities make decisions on questions of political and religious truth, we have then moved away from democracy and into tyranny.

In sum, vilification laws are a genuine threat to freedom of speech. They effectively clamp down on the discussion of important religious, theological, social and ethical issues. The answer to bad speech is not shutting speech down. It is rebutting it with good speech. We do not need social engineers and enforcers of political correctness dictating to us what can be discussed and how it should be done.