Adam Smith warned on the criminalising of emotions – hate crimes – in the Theory af Moral Sentiments, published in 1759:
‘Sentiments, thoughts, intentions, would become the object of punishment… every court of judicature would become a real inquisition.
‘There would be no safety for the most innocent and circumspect conduct. Bad wishes, bad views, bad designs, might still be suspected.’
Smith’s warning – that punishments without limit could be inflicted once a state of mind had been criminalised – has been born out in a stark, indeed almost unbelievable, fashion in the US.
A Florida man, Michael Wolfe, has been sentenced to 15 years jail, followed by 15 years probation, for breaking windows, lights and cameras and leaving a piece of bacon outside a mosque. The court held this to be a hate crime. A sentence of 15 years means in effect a whole life wantonly ruined for a single episode of foolishness. Wolfe is 37. He will be 67 before he is a completely free man again. Had the attack been made on a Christian church, it is safe to say the sentence would not have been nearly as severe.
By contrast, in Wuppertal, Germany, two Muslim asylum-seekers who burnt down a synagogue escaped punishment, the court holding that their action was political rather than anti-Semitic.
It seems we in the West, or at least in Florida, are back to the Law of 22 Prairial of the French Revolutionary Terrror, enacted in 1784, which prescribed the guillotine for possession of ‘a bad moral character’ which could be made to mean anything.
What, in cases like this is ‘hate’ anyway? It is perhaps incautious to make pronouncements without having heard the evidence, but it seems at least possible that Mr Wolfe was simply driven into a fury by the incessant reports of the great Muslim onslaught against the West, and felt it incumbent to somehow, and however blindly and foolishly, even counter-productively, hit back.
Would he have made his protest – indefensible – if there had been no 9/11, no Fort Hood, no Isis massacres and atrocities and all the rest of the 35,000 or so Muslim jihadist attacks in recent years?
It is worth pausing for a moment to think about just what 15 years means. Even if he did ‘hate’, is this an even remotely just punishment for a state of mind? Whatever happened to the recently-trendy theories of therapeutic jurisprudence aimed at correction?
In Stalinist Russia such conduct would probably have been labelled ‘hooliganism’, and would have attracted a lesser sentence than 15 years – a stark illustration of how unbalanced the relevant judicial process has become.
Certainly, Florida is not Australia, and American jurisprudence, with wide latitude for innovation by judges in the various states contains some outrageous things, but what makes this sinister for Australia is that it seems part of the zeitgeist in which allegations of ‘hate’ and ‘racism’ trump humanity, common sense and established criminal proceedure, and which Australia could well follow. The 18C cases, while not as dire as this, are quite bad enough and sound an unambiguous warning.
Britain is not yet dealing out 15-year sentences for alleged hate crimes, but British jurisprudence, too, seems headed that way.
It was reported that police ordered a baker, Daryl Barke, in the Essex village of Wickford, to take down a poster advertising English bread with the slogan ‘none of that French rubbish’, on the grounds that it was stirring racial hatred.
A 78 year-old war veteran put signs for the UK Independence Party on the wall of a derelict Liverpool building: ‘Don’t forget the 1945 war’ and ‘Free Speech for England’.
He was arrested and charged with racially aggravated criminal damage – an offence with a maximum sentence of 14 years in prison, similar to the maximum for spying for an enemy power under the Official Secrets Act. The offence was deemed racially aggravated and therefore far worse because of the reference to ‘England’.
At about the same time it was decided not to prosecute a spy who had previously passed nuclear weapons secrets to the Soviet Union – evidently a far lesser matter.
A child faced criminal trial and possible imprisonment because, when taunted in a school playground at Ipswich by an Asian child who likened him to a skunk and a Teletubby because of his excessive weight, the child – then aged 10 – had retaliated by calling his adversary a ‘Paki bastard’ and punching him twice in the back.
The accused was charged with racially aggravated assault. When it reached the High Court, the case had cost £25,000 of taxpayers’ money. The accused was so distressed that he had stopped attending school. The paper reporting this, evidently deciding to play safe, printed the work ‘Paki’, meaning no more that Pakistani, as ‘P–i’ as if it were some unmentionable obscenity.
Another school child, Cody Smith, was arrested after her teacher pimped on her to the police to the effect that she had asked to sit with English-speaking students to do a group exercise. She was held in a police cell and her shoelaces were taken away, presumably to prevent her hanging herself. These cases are the tip of a mountain more.
A speaker was arrested for quoting Winston Churchill’s strictures on Islam in his 1899 book The River War. When quoting Churchill in Britain becomes an offence, one feels that there is something drastically amiss.
A few weeks ago, 3,000 Muslims outside the US embassy in London chanted the anti-Semitic cry; ‘Khaybar Khaybar, ya yahud, Jaish Muhammad, sa yahud’ or ‘Jews, remember Khaybar the army of Muhammad is returning’. No hate there, of course, and no arrests either. I have also seen reports which somehow feel part of the temper of the times, that British police have refused to protect right-wing speakers. If a culture war is being fought, it is being fought entirely one way.
If these things can happen in the two societies supposed to be the founders and great bulwarks of liberty, how safe is Australia, when Gillian Triggs indicates regret that private conversations cannot be policed, and when our Prime Minister, after a feeble and futile attempt to modify 18C, shows almost no interest in protecting freedom of speech.
Don’t tell me he couldn’t do something about it if he cared, like having its victims in the QUT case compensated.
Subscribe to The Spectator Australia today for a quality of argument not found in any other publication. Get more Spectator Australia for less – just $20 for 10 issues