Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Sunday, 30 October 2011

On hate crime

The trial and conviction of Vincent Tabak for the murder of Joanna Yeates has prompted calls for new legislation to protect women. Writing in the Guardian, Julie Bindel, has argued that the case demonstrates the need for a crime of incitement to sexual hatred. The specific context for this is that Tabak was found to have visited a number of websites containing what has come to be known as 'extreme pornography' - images depicting the torture or maiming of women - both immediately before and following his attack on Joanna Yeates - which might suggest that there is some connection between the two.

While the existence of such websites raises legitimate concerns about their social impact, there are grounds to be cautious about resort to criminal law. First it is not clear how this proposed new offence would interact with existing legislation criminalising the possession of 'extreme pornography' (in 2008 in England and Wales, and in 2010 in Scotland) - which was itself a response to another high profile crime of violence against a female victim. Should it replace it? Or is it to be additional? But more importantly it is not clear what this might add. The existing legislation already criminalises possession, broadly defined, of these images, in contrast to prior law on obscenity which criminalised the production, distribution or sale of such images. The reason for the shift from production or sale to possession was the recognition that with the advent of the internet it may be well nigh impossible to identify, let alone prosecute, the producers of images such as these. And as Internet Service Providers were resistant to the idea that the distributors of such images might be prosecuted, as they claim to be unable to control the flow or content of images, it was the possession (and presumably also consumption) of the images that was criminalised (in line with similar legislation on child pornography). However, it is worth noting that the crime has rarely been prosecuted, since it is only likely to come to light when a person' computer is being searched for other reasons.

This brings us to the idea of a new offence. The difference in the crime being proposed is that it would criminalise incitement to sexual hatred. While there can be little doubt that many (if not most) of the websites complained of express a kind of sexual hatred or particularly distasteful objectification of the female victims (even allowing for the existence of some legitimate S/M sites), there may be problems around the idea of incitement. This is normally understood, in legal terms, as saying or doing something which is intended to lead another person to perform a criminal act. Now one issue here is that the extensive survey of evidence commissioned by the Home Office and Scottish Government in advance of the recent legislation found no, or at best inconclusive, evidence of any causal link between such images and sexual violence. Fine, but it may then be replied that the purpose of the proposed offence would not require any causal link of this sort since it is the image itself that is the incitement. But the problem here would then be the question of who the offence was aimed at. In terms of incitement this would surely require that it be the producer, or at least the distributor, who was being targeted - though this would then encounter the same problems as the extreme pornography offence. If it is the possessor or consumer - which seems to be the tenor of Bindel's argument - it is not clear that they are the inciter (rather than being incited). And given this vagueness it may be that the use of the existing possession offence would be less problematic. But more importantly, since (as in the case of Tabak) the person incited has already committed another more serious crime, it is hard to see what the new offence would add, except in symbolic terms.

There are significant problems, then, with attempting to criminalise conduct in this area - without even getting to issues of freedom of expression and censorship. However, the argument also prompts some reflections on the rise of legislation criminalising hatred, and what these might tell us about the changing character of the criminal law. First of all, what is distinctive about this is that it reflects the rise of identity as something to be protected by the criminal law. Put bluntly, if the criminal law has traditionally been concerned with the protection of physical objects or attributes (the body, property etc), there now seems to be a shift towards including such incorporeal things as identity within the scope of the protection of the law - either in its own right or as a factor which aggravates the crime. (See for example the Offences (Aggravation by Prejudice Scotland Act 2009). Second, these developments put motive, which has traditionally been considered irrelevant to intention, at the heart of the definition. But this can cause problems as it can be hard to know whether it is the motive of the aggressor or the experience of the victim that is most important.

What is the significance of these new kinds of offences? It is hard to say, but it might be linked to the rise of concerns about respect and civility - though there are still grounds for concern about use of the criminal law. The criminalisation of hatred might reflect a concern with civility, as we seek to promote tolerance of the identity of others, but equally aggravated offences might aggravate the the differences and difficulties in this area.

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