Religious hatred should not be a crime, but it should be a crime to intimidate religious groups, dehumanise them and seek to exclude them from society. That's the gist of my submission to the government yesterday August 6 2021.
NZ Herald Photo: Judge Mander sentencing mosque terrorist Brendon Tarrant last year.
It's a very complex issue, but some of my main concerns are:
The law should protect non-religious people as well as religious
It should protect people from being blamed for the alleged crimes of their religious group
Not all hatred is a crime: it should become a crime only when it leads to intimidation, threats to a whole religious community, escalating harm, demonising the members of a group.
It should not to be a crime to criticise a religious group.
Malicious stereotypes may harm a whole group but there should be a defence of justification, or fair comment as there is with defamation.
Life sentence without parole is an inhuman penalty. The law should rccognise that some criminal attitudes are now treatable.
The principle that discrimination may harm an entire community is valuable and should also be considered for biased religious programmes in state schools. Parents should not have to fight these battles in a civil court as they do now.
I would appreciate other comments on this. It's likely to become law, and will affect us all.
Here's my full submission:
Proposal one increasing the groups protected:
I support proposal one. The categories of people listed in the Human Rights Act are there because they have historically been subjected to discrimination. The same people could also subjected to hate speech. So it seems self-evident that they should be protected by any new hate speech legislation.
Non-religious people need to be protected too
However, I suggest the groups need to be amended. The current law protects people of ethical belief, which is defined as a lack of belief. I believe that category needs to be split in two, because they have significantly different human rights issues.
(a) Subgroup A have no religious affiliation, and that is how they are defined in recent censuses. They are not a permanent organised group. Nevertheless, I have considerable experience of them, because hundreds of them joined the Secular Education Network, of which I am a leader, and we fought for the right of their children to be protected from programmes which promoted Christianity in state schools. Having no regular support group means they are especially vulnerable to attacks on their rights. It would be misleading to categorise them as a group at all; they are sector of society, but they still have rights. These people make up 48% of the population. They are not generally anti-religion; in fact a poll I took last year showed that more than half of them support neutral education about religion in state schools.
(b) Subgroup B are people with non-religious philosophies, as identified for the first time in the 2018 census. These include myself as an atheist, humanists, rationalists etc. They are are not just people who lack a belief; they share distinctive interests such as science and ethics based on human reason. Many of them want their philosophies to be taught alongside religions, as part of a neutral religious education in state schools. Unlike subgroup A, they are well organised groups, with a keen sense of their human rights.
Religious people who are blamed for the crimes of their religious leaders
Two other distinctions need to be made, about people who are unorthodox members of their groups.
(c) One example is the 50% of Jews in a survey I conducted in 2020 who do not believe in a personal god. The original blasphemy laws, abolished in New Zealand a few years ago had a similar effect: they were drafted by Christians to protect their religion against dissident Christians. People in NZ still get punished for being different from other members of their groups. Others get falsely accused of being bigoted, sexist etc, for belonging to churches whose bigotry and sexism they oppose. I believe the law should note the right of individuals to be different from other group members.
(d) People who change their religious or non-religious affiliation are at times regarded as traitors. In Saudi Arabia there is particularly heavy discrimination against Muslims who leave their religion. A UN resolution on this topic (which I can’t identify off the cuff) speaks of the right to change one’s belief. Similar discrimination happens in New Zealand. So I believe the law should recognise the right to change one’s religious or philosophical belief.
Proposal two – new definitions of religious harm
I support the intention of this proposal but not the detailed wording
I support it covering all methods of communicating speech
I support the protection of freedom of expression by ensuring that only extreme hate speech is criminalised, and that there must be an intention to cause others to develop and strengthen hatred towards a group
Hatred should not be a crime
However I believe the attempt to make hatred a crime makes the situation more confusing, not less, because
1) hatred is an emotion, not a behaviour. The behaviours that need to be discouraged are those that treat religious and other minorities as enemies and subject them to death, injury, the destruction of their meeting places, and intimidation. Brendon Tarrant aptly described himself as a partisan in a war against (Muslim domination???) . It is that partisanship which needs to be restricted by law, not hatred as such. His manifesto also referred to intimidation of Muslims. And in his sentencing, Justice Mander also emphasised the harm caused by intimidation.
2) Intimidation is I believe a key part of the harm of hate speech
… a murder harms one family, but intimidation harms an entire religious or non-religious community, maybe tens of thousands.
Not all criminals are the same
3) It is begging the question to ask what kind of emotion leads up to such partisanship. I have been a student of psychology and note that the same behaviour may arise from very different motivations. For instance, a person with narcissistic personality disorder may shoot people out of jealous rage; a person with histrionic personality disorder may shoot people to seek applause, and consequently feel smugness rather than rage. A person with paranoid personality disorder may kill out of fear and distrust of others.
4) The judge sentencing Tarrant noted that the psychologist reports did not indicate personality disorders … if so, Tarrant’s emotional state was irrelevant. So individual motivation could be relevant in some cases, but irrelevant in others.
5) In a forum on this subject organised by the Religious Diversity Centre, religious studies professor Paul Morris said it was well established that hatred leads to discriminatory behaviour. But that is false more often than it is true. In my extensive involvement with atheists in the past nine years, a disturbing number of them expressed hatred of Muslims. But they were all at pains to insist that they would never resort to violence. I would not have reported any of them to the police. It is only on rare occasions that hatred leads to criminal action. It is so rare that a case could be made for not having a religious hate speech law at all, but leaving these events to be dealt with by the laws against inciting murder, arson etc.
The law should punish actions, not feelings
6) I believe the discriminatory behaviours that cross the line into crime are those where an entire religious (etc) group is at risk. Several such terms have been suggested in the debate over the Tarrant case. Judge Mander said Tarrant aimed to intimidate. I suggest the actions that trigger this law should be
a) Intimidation
b) Escalating harm,
c) escalating injury,
d) de-humanising,
e) excluding from society,
f) demonising. If hatred can stop short of these situations it should not be a crime. And if these results are sought, it should be a crime regardless of whether the trigger emotions were hatred, fear, jealousy, indifference, competitiveness or whatever.
Criticising religion is not a crime
Criticism of religion should not be a crime. In the debate over blasphemy law, libertarians (including myself) objected that the law made it a crime to criticise religion, and I still believe that objection was valid. However I accept that the current proposal is entirely different… the issue referred to in Proposal two is not whether the beliefs of Islam are true, but whether Muslims deserve protection from violence etc.
When “hate speech” may be justified, or fair comment
However, in referring to demonising, I draw attention to a different set of circumstances, where the truth of statements about a religion may be relevant. One of the tools of hate speech is propaganda which creates malignant stereotypes about the target group. This situation is similar to defamation, and I believe there should be similar defences, of justification, or fair comment.
I believe this is a flaw in the Harmful Digital Communications Act, that it enables an accuser to apply for a temporary gagging order for any statement that might offend a religious person. The general principle of a gagging order may be of value, to counter the immediacy of the harm done before the case can be heard by a court, but the right to free speech should be given greater weight by enabling the defendant to make a defence of justification or fair comment, and using that as a reason to defy the temporary gagging order. The same defences should be available to speeches that allegedly demonise religious or non-religious groups.
Increased penalties
Proposal three raises the penalty for someone guilty of incitement from a maximum of three months in prison to a maximum of three years, and from a maximum fine of $7000 to a maximum of $50,000.
I don’t feel competent to make firm suggestions about penalties. But I note that arson has a maximum of 14 years jail, and this could a guideline for hate speech involving risk to property. So I would not object to it being $50,000 for major harm short of murder.
Public anger should not be our guide to sentencing
I regard life sentences without parole as inhuman. In some ways it appears to be worse than a death sentence, since some prisoners having done the calculation decide to commit suicide. But how can you quantify such a calculation? One example that has some weight with me is that the public anger argument depends on public opinion which can change over time. If criminal behaviour is capable of being remedied, public opinion would likely switch toward rehabilitation. The latest edition of the Diagnostic and Statistical Manual of Psychiatric disorders suggests that some forms of motivation to murder are in fact highly treatable.
If so, I suggest a well-informed public would prefer to have shorter parole periods, to match criminals whose condition is treatable.
And I suggest that if the government is serious about updating the law on hatred, it should modify its own hatred and gather research on the kinds of personality of prisoners jailed for violent crime, and their treatability. I appreciate that this is a massive task, but similar studies have been done overseas.
Criminals are us
I strongly disagree with the repeated statements by the Prime Minister that Tarrant is not one of us, and the similar remarks by Judge Mander in sentencing him. The psychological statements taken from Tarrant show that he is within the “normal” range of psychology and has the same human rights as the rest of us, and if our society commits him to jail it must accept responsibility for his humane treatment and welfare.
It was considerations like these which led Jesus to urge his followers to visit people in prison, and to love their enemies.
Shakespeare too humanised murderers by creating about six tragedies about murder, all with very different motivation, all described with empathy.
Changing other laws may follow
Proposal four
I support changing the language of the civil incitement match changes to the criminal provision.
Proposal five… I support changing the civil provision to make incitement to discrimination against the law. However. I would prefer the law to be more specific about the kind of harmful results that are to incur penalties.
Civil law has failed to protect children from indoctrination
Corollary to proposal five – religious education in state schools; a civil law failure
For nine years I have been a leader in the campaign to remove discriminatory religious programmes from state schools. I would regard our experience as a massive failure, in large part because we were fighting a civil law case where minority groups and individuals were pitted against about 900 independent, religiously biased state school boards.
We were let down by an impotent (a) Human Rights Commission, (b) ineffectual mediation with the Ministry of Education under a National government, (c) years of delays waiting for the Human Rights Review Tribunal, (b) ineffectual lobbying against other guidelines prepared by a Labour government, and (d) a gruelling ordeal getting parents and children who were willing to give evidence to the High Court.
We argued our case one child at a time, and did not save one child through this process.
So I welcome the suggestion that hate speech may become a crime because it will identify the main principles of harm, and could hold the state responsible for enforcing the rights of individuals.
In particular, we may be able to identify an entire religious or non-religious group as the victim without having to put every one of them in the witness box, and argue that non-Christian children in general have been intimidated, excluded from their classmates etc, by Christian programmes, and their parents have collectively been demonised and disempowered.