Opinionista Phillip De Wet 27 March 2010

Meanwhile, back in the real world, we really need hate speech rules

It can be frustrating arguing with those who want the concept of hate speech thrown out of the window, because superficially they make sense. It's just that they're coming at the problem from entirely the wrong direction – and from a place that has nothing to do with reality.

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.