The law around hate crime is a mess, but is virtue-signalling legislation really the answer?

Written by Mandy Rhodes on 21 October 2018 in Comment

Mandy Rhodes on the Scottish Government's plans to consult on including misogyny in hate crime

“If I said you had a beautiful body, would you hold it against me?”

It may be the comic stuff of yesteryear, but there’s a wide ravine between men who say they love women and show their appreciation by wolf whistling, leering or telling us to ‘smile’, and the women who tolerate it as the ugly wallpaper to their everyday lives.

The constantly thinking about what to wear, which building site to avoid, how to ignore the salacious winks, gestures, comments, the social media asides, to side-step the creep that invades your space, averting your eyes from the bloke who manspreads on the tube or brushing off the shopkeeper whose hand lingers just too long on yours as he gives you your change.

It is what a sizeable minority of men do, but is it misogyny and could it be a crime?

Scotland’s new justice secretary, Humza Yousaf, announced at SNP conference that the Scottish Government is to launch a consultation on whether to include misogyny in hate crime. The UK Government is in the same game.

The news has created a storm of misunderstanding, scaremongering and downright lies, but in the current zeitgeist following on from #metoo, where women are rightly demanding behavioural change, too many things are being conflated.

And while I fully acknowledge that we are all struggling to understand some of the blurrier lines of what is acceptable, do I want to see men criminalised for conduct that is often so nuanced that it can spark a debate among women themselves?

Take the recent example of the ‘girl on the train’. A young woman, Jane, travelling home found a note left for her by a man who had been sitting opposite. The message said that if the world was getting her down, she should smile more and added, “a face as pretty as yours was not meant to frown.”

For some, the man was simply indulging in a random act of kindness; for others, he was simply a sexist creep. But what matters here is how the woman herself felt. And she was alarmed.

Jane told her story on the BBC’s digital channel ‘The Social’ and sparked a social media storm, with opinion divided between those in support of her and those that think she overreacted.

But it also wrongly lumped this kind of behaviour into the debate about hate crime.

For me, Jane’s main point was about the cumulative effect of that constant invasion of our lives. And there’s no doubt that men, whether aware or not, flex their patriarchal muscle every time they stride into our public space uninvited. It tells us where we sit in the pecking order and shouts, ‘Hey, I have this right to humiliate, intimidate and put you down’.

It’s not ‘just banter’, it’s harassment. And men need to learn it is wrong. But I don’t want to marginalise them or risk entrenching their often unsavoury or ham-fisted attempts at social discourse by categorising their behaviour as criminal.

And while the current febrile environment has some women arguing that all men are rapists, there is undeniably a spectrum. And there are already laws designed to protect women from violence, discrimination, harassment and unwanted sexual advances.

It is true too, that those laws, in practice, are not perfect, but throwing an imperfect definition at an already difficult area to prosecute may result in even less protection and potentially create deeper divisions between the sexes.

And while there is a growing clamour for specific recognition and punishment for misogyny – at the very least as an aggravating factor in an already existing crime – that will not tackle the all-pervasive sexism that has become the depressing architecture of women’s everyday lives.

One argument for punitive action is that by including misogyny in hate crime there will be a ripple effect that will contribute to changing an entrenched culture.

Yes, laws can be a deterrent, but is the primary purpose of legislation to send a message about social mores, however unacceptable?

The smoking ban, for example, did change behaviour but there was a clear-cut issue about what the law could do. There was no existential debate about the definition of smoking or whether the context in which you were caught smoking could mitigate against you breaking the law. There was just a right or a wrong. No argument.

Misogyny, however, is hard to define. There is often arguable context and the law here is a blunt instrument.

And you can’t have a gender-based hate crime that is specific to just one gender. It’s not intellectually robust or legally sound. If proof is needed, just listen to the men already howling with rage at the discrimination and the UK Government countering the obvious risk by mooting a law that recognises misandry – the hatred of men.

The law around hate crime is a mess. It is true, women suffer abuse rooted in misogyny every day. But is virtue-signalling legislation capitalising on a current outrage the sustainable answer to tackle what has become almost a social norm?

Look, I’m a woman, I understand the hate that we can suffer, but there is also an uncomfortable truth for me, that as a woman that belongs  to a sizeable group of the population – at least half. Do I really want to be treated like a minority, with my gender classed as a ‘protected characteristic’?

Sexist behaviour that is all pervasive needs to be called out. Our culture needs to change, but politicians justifying incoherent law with the excuse that at least it ‘sends a message’ are getting this wrong.

There is a political race on to prove our credentials as a truly open, inclusive and tolerant nation, but let’s use that energy to change men’s attitudes toward women through education and example so to the next man that taps me on the shoulder and tells me to ‘smile, love, it may never happen’, I can tell him it already has.

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