Discussing software, the web, politics, sexuality and the unending supply of human stupidity.


For some, Black Mirror seems to be a HOWTO guide. I guess if you are going to use sexual shame to make money, Britain is the best place to target.

Police incident at Paddington, London: the HSBC on Praed Street has police tape around it and there are multiple officers on scene. The doors to the bank are closed with staff shut inside. A security van is parked outside—a robbery perhaps?

Sorry for low quality image.

Bias-motivated crimes are just crimes

It is a common argument against hate motivated crimes, bias-motivated crimes and the like that they create a situation of adding ‘thought crimes’ to otherwise existing crimes. I believe this objection to be unreasonable for reasons I shall explain below.

First though, what is a hate motivated or bias-motivated crime? These are crimes where someone has committed a serious assault against a person, up to and including murder, and the person was motivated by animus, hate or bias against a particular minority group or on the basis of a protected minority characteristic. In Britain, for instance, if you commit an assault and the court is persuaded that you did it because of racial hatred, you can be charged with a racially motivated version of the same offence and if convicted a longer prison tariff can be imposed. Similar laws in other jurisdictions exist that either provide a combined charge (that is, say, a hate-motivated assault stands in place of an assault charge) or an extra charge is brought for the hate-motivated component of the charge.

The argument I hear most commonly raised against hate and bias motivation offences is that they add a layer of “thought crime” to the criminal justice system. The argument goes something like this: if you assault someone, it shouldn’t matter what your motivation is, you should get charged for the assault. You may be a racist or anti-gay or whatever, but the same crime should attract the same punishment. That your attack was motivated by animus towards some minority characteristic shouldn’t override the fact that you committed an attack.

A standard response to this argument exists that attempts to defend bias-motivated crimes by pointing out that an additional assault is done by the bias-motivation. For instance, if you assault someone for no particular reason you commit a wrong towards the victim. If instead you park outside a gay bar, wait until someone comes out of the bar and beat them senseless for being gay, you have done a double wrong: you have assaulted them, but you have also terrorised other gay people in the process. The state, then, has a clear and reasonable interest in preventing both the physical assault against the individual victim and the harm being done against the group.

There is something problematic about this response. It relies on the idea that a wrong can be done against a whole population–against a racial or ethnic group or against a gender or sexual minority group etc. The idea that you can harm the whole group is a politically contested notion and is unlikely to be universally consented to. People have objected to the concept of “group rights”. I think most people can reasonably consent to the idea that a small group can be a victim of an injustice. If you don’t think that is the case, I’ll give an example I hope will convince you shortly. But if you imagine all the possible injustices perpetuated against groups, it’s certainly plausible to say that most people can agree to the idea that some of these rise to the level of being within the purview of criminal law. Most people who object to the concept of “group rights” are unlikely to seriously object to the idea that, for instance, Jews as a group were done a serious harm by the Holocaust such that the charge of genocide against the Nazi leadership was an acceptable response. If one cannot buy the idea that a whole ethnic-religious minority can be harmed in this way, or that, say, the lesbian and gay community in a particular location can be a victim as a group by a vicious homophobic attack, then a more simple example can be given.

Imagine that a group of anti-cycling fanatics decide to sabotage a bicycle factory. They plant a bomb timed to go off during the middle of the night and vandalise various machines used in the production of bicycles. The bomb goes off and the factory becomes inoperable. As a result of the attack, the business has to close and the employees lose their jobs. Who are the victims here? Who has been harmed? Well, no direct bodily assault has been made against anyone. Legally, it is a crime against property. Obviously, the owners of the bicycle factory will probably lose money as a result. It doesn’t seem implausible to suggest that the employees are also done a harm by the destruction of the factory–they lose their jobs. Each individual employee is done a harm as an individual, but it also seems like we can reasonably say that they are done a harm as a group. By no longer having a job working together, they lose membership of a community they were a member of. It seems that if we say that corporate entities can have legal personalities and be done civil harms, group victimhood ought not be a great stretch, although there’s definitely a potential Sorities problem here: how many Jews does one have to kill before it becomes a genocide etc.

Anyway, this is going slightly off point. Fortunately, I don’t think group victimhood is at all necessary for hate motivated crimes to be successfully defended. It’s much simpler than that. The response to the “thought crime” argument is very simple: most crimes have some element of thought crime. Indeed, what makes Orwell’s formulation of “thought crime” chilling isn’t that people are punished for their thoughts, but rather that it is their thoughts alone with no actions that can be made criminal.

Consult any legal textbook and you shall find that crimes contain two aspects: the actus reus and the mens rea. Very few criminal laws are so-called “strict liability” crimes. Laws that impose strict liability have no excusing factor. It doesn’t matter what your state of mind is when you park on a double-yellow line, you still get a ticket. You may have not seen the double-yellow line, you may have seen it and not known that it was illegal to park on double-yellows (in which case, really, you probably ought to read the damn Highway Code), you may have seen it and thought you weren’t going to be caught, seen it and not given a damn if you get caught, or intentionally decided to park on a double-yellow in order to protest the evil imposition of traffic laws. None of this matters. You still get a damn ticket. Another example of a strict liability offence that’s famous in the legal literature is the Nazi propaganda case (I forget the law: been a long time since I read the case). During World War II, a radio operator was charged with transmitting Nazi propaganda, which was illegal. He was being blackmailed and forced to transmit the propaganda. Even so, because the law is strict liability, he was charged and convicted.

Most serious criminal charges have a strong element of trying to understand the mental state of the defendant. This is perfectly reasonable. Consider medical cases. A doctor may do exactly the same things to two different patients, and both those things may lead to the death of the patient. The difference between valid medical practice and assault hinges rather heavily on a whole load of sticky questions about consent, intention, not being reckless and so on.

If your argument against bias or hate motivated crime is that we avoid thinking about intent or the mental state of offenders, then your argument basically undermines a huge chunk of criminal law. Otherwise, you have to find some argument as to why we can ignore mens rea in ordinary criminal offences but not ignore mens rea in hate or bias motivated crimes. That’s not to say that specific cases of bias-motivated charges will necessarily be easy to prove. It may be that it’s easy to prove intention of a specific charge like murder, but find it hard to prove the bias-motivation component of the charge.

I think this argument against bias-motivated crimes is bullshit. While it has a lot of intuitive plausible appeal, it’s a bad argument.