Those who protest that hate-speech prohibitions are a bad thing make some compelling arguments. I've been exposed to many of them since welcoming the Equality Court’s judgment on Julius Malema earlier this month, both online (see the comments section of that article) and offline.
The problem with those arguments is that, while they are coldly logical, they are based on an entirely theoretical idea of how society should function. But law and policy do not exist in a vacuum. They inhabit a real world where words carry real consequences.
I do not want to live in a society where women are raped because of their sexual preference. I do not want to live in a society where women are raped and their attackers, once caught, use as justification the sexual orientation of their victims. It is abundantly clear to me how somebody standing on a public platform and proclaiming that raping lesbians will somehow transform them into heterosexual women can lead to either of these two conditions. Therefore, I do not want anybody to be able to do so with impunity. And I couldn't care less if they feel I’m restricting their freedom of speech.
And if the man (because it's always a man) on the stage doesn't intend that anyone really get raped? If he's making a joke, or trying to use satire to educate? Should he be held liable for the actions of others, strangers over whom he has no restrictive control?
In a word, yes. We have a universally accepted solution for actions which, inadvertently, without any intent whatsoever, lead to great harm. It's called assault. If it leads to death, it’s called manslaughter or culpable homicide. We distinguish it from murder precisely on the basis of intent to cause harm.
Our legal system has evolved, generally pretty well, to deal with the fine graduation in cases of manslaughter. If there was no malice aforethought, then the punishment must obviously be less severe than for murder (the law clearly distinguishes on the basis of intent). If there was extreme negligence, the punishment should be severe. If it was just a plain accident, then we may, under very unusual circumstances, hold a moment of silence for the unfortunate victim, and move on with our lives. Hate speech, as it is being prosecuted right now in South African and a couple of other enlightened countries, takes into account exactly those kinds of distinctions. If you claim that raping lesbians somehow "cures" them, but do so in a locked room with only two women professors of gender studies as your audience, it's still hate speech. But, because the audience possesses extraordinary levels of academic understanding, the consequences may be nothing more than a slap in the face for you, and nobody outside that room knows or cares.
However, if you make the same claim on national television before an audience that will include at least a couple of psychopaths to whom it sounds like a jolly good idea, then, in my view, you are an accessory to rape and should be treated as such.
Some people worry about where we draw the line, and suggest it would be safest if we don't have one at all. They fail to realise that they have already drawn it. I can't imagine that any of those people would be comfortable if somebody stood on a podium and proclaimed to an audience of radically fundamentalist Puritans that they (or their loved ones) were witches who should be burned at the stake. What is the difference between that – direct incitement to violence against people – and the claim that lesbians can be “turned” through non-consensual sex? I can spot one difference right away: the latter has potentially nasty consequences for far more than just one person.
Where should we draw the line? Simple. We shouldn't. Every time one human kills another it is manslaughter. Not every case of manslaughter is prosecuted. Not every prosecution leads to a conviction. Not every conviction carries real sanctions. And, in the case of suspended sentences, some sanctions are entirely dependent on a future repeat of the misdeed.
I believe the same degrees of punishment should apply in the crime of rape – even if the victim does not die. Callous though that may sound, it is a paradigm that has served us well. Until the same implications and consequences of hate-speech rules are proven otherwise (and I have yet to see a single example where it hasn't been a force for good), arguing against those rules is nothing more than dogmatic blindness.
- Malema's trudge wins hearts, changes minds
- Zuma announces far-reaching cabinet reshuffle, suspends Cele
- Alex fire remains unlit, no thanks to government
- Malema gets a boost, courtesy of 'makula' and AfriForum
- Alexandra threatens foreigners on housing - again
- Global Occupy movement arrives at JSE - ever so briefly
- The interwebs, coming to SA planes in 2012
- ET trial: RIP the white far right
- Themb'elihle, Schubart, Tembisa pin their hopes on Mangaung
- Public order policing at the crossroads
- Tembisa fails to get what it wants - like everybody else
- Schubart Park becomes the ConCourt's (legal) headache
- SA streets want Kgalema Motlanthe
- Schubart Park and the legal measure of threat to life
- Tshwane gets rid of its high-rise slum - for now
- Schubart Park erupts over service delivery, of a sort
- Tembisa protests and the shadow of things to come
- Death and service delivery in Soweto
- The curious case of the apartheid dolomite
- Themb'elihle: Arresting a protest
- Themb'elihle vs Chiawelo: a story of power and the cables that bring it
- Themb'elihle: a breakdown of ingredients for a service-delivery riot
- Five lessons from Themb'elihle
- Lenasia protests flare, die down again
- Joburg's Violence 24
- ANCYL supporters lay siege to Luthuli House
- Cops prepare, Malema trouble fails to appear
- Manchester United goes for non-broke in Singapore
- Woolworths trades happily at the high end
- Retailers show why Walmart likes SA prospects
- Acsa sextuples loss, eyes raid on consumer wallets
- Battleground NSSF: looming fight for the soul of forced state pensions
- 745 million reasons black farmers aren't thriving
- MTN hits trouble in the Middle East, just not where expected
- Motlanthe: don't kill the messenger when govt makes mistakes
- D-Day for heart-attack fats, but don't touch me on my full-cream milk
- Google buys $12.5bn in patents (oh, and Motorola)
- Katota, the property development saviour that wasn't
- Cashless payments, taxing tips hit 'waitrons'
- Cell C's buzz helps it eat into Vodacom, while MTN holds its ground
- Sake24 wins right to see Eskom's secret tariffs
- Purse-string diplomacy: SA bribes Swaziland into democracy with R2.4bn
- Analysis: Constitutional Court slaps Zuma a little - and Parliament a lot - on Ngcobo
- Analysis: Forget Malema's money, party funding is the real threat to democracy
- ANC Youth League goes to bat for Malema against Broederbond media
- Madonsela finds maladministration, though no actual corruption - but cop buildings saga will go on
- Who is gunning for the Public Protector? A you-connect-the-dots adventure
- Family, colleagues bid farewell to Anton Hammerl
- Michelle Obama (aka the anti-Malema) charms Soweto
- Analysis: Yanks regain some swagger, emerge better prepared for next round
- Osama bin Laden's death: The night the US celebrated
- Aristide buggers off and tells everyone else (Obama in particular) to do the same
- Foot-and-mouth knocks on SA's door
- Shades of Apartheid: Libyans (and many others) struggle to justify past Gaddafi support
- General Cele takes the low road
- Analysis: The general, the building and the wages of militarisation
- Madagascar's Marc Ravalomanana: I'm going home
- SA/UK terror threat: Details start emerging on the suspect's business dealings
- SA/UK terror threat: Yes, it's still terror when all you're threatening to kill are cows
- HE'S GONE
- NYDA youth festival fiasco - yup, it gets worse...
- Motlanthe puts out the Madiba fire - how easy was that?
- Righteous indignation: the mishandling of Nelson Mandela's illness
- Madiba hospital watch in pictures
- Neill Blomkamp's next big project (or weekend amusement) goes viral
- Yes, there is venture capital in SA. No, you can't have any
- Liefling: get used to Afrikaans musicals, this ain't the last one
- Cosatu gets ANC tongue-lashing, Vavi gets out of jail free
- Analysis: The panacea for rural development that isnít
- Home affairs doesn't budge from 31 Dec Zim deadline, shrugs off problems
- Malema spins his way to NGC victory, lectures on discipline
- Analysis: Zuma's task, saving the ANC, one branch at a time
- ANC NGC breaking news: Zuma takes a walk. Also smiles, waves.
- ANC NGC: Jacob 'who's your daddy' Zuma comes out swinging
- Cosatu's draft election manifesto: more socialism, fewer golf estates
- Crime goes down, also up, and sideways
- Murders fall by 8.6%, says Mthethwa
- Analysis: 1+2=12 - the mathematics of Malema's mine nationalisation fiction
- Government unions suspend strike, claim famous victory, but continue the fight
- JSE says black people own a fraction/enough/quite a lot of it
- The maize crisis and why rescuing white farmers is good black empowerment policy
- Deconstructing Zuma and his letter on the media tribunal
- Soccer is stupid and the World Cup sucks and everybody should go home and leave us the hell alone
- Dancing on the grave of Sentechís departing CEO
- Meanwhile, back in the real world, we really need hate speech rules