Hate crime is the name given to a practice by which, first, offences are officially regarded as requiring a higher penalty if committed out of dislike for particular protected groups, and second, the stirring up of hatred against members of those groups is made a crime. The first of these currently applies quite widely, to race, disability, sexual orientation, religion and transgender status. The second is much narrower: it covers only race, religion and sexual orientation, and in the latter two cases criminalises only deliberate fomentation.

There are better uses for criminal law than coming down on old-fashioned male chauvinists

The subject of hate crime is big news at the moment because of plans to add to it. Under a bill now before the Scottish parliament, already subject to convincing attack in The Critic, hate crime north of the Tweed would expand to cover race, disability, sexual orientation, religion and transgender status; dislike for members of these groups would aggravate an offence, and in addition any communication vilifying members of these groups would be criminalised even if not deliberate but merely seen as likely to have this effect. Similar proposals are likely to be put forward in Northern Ireland when a body reports later this year; and it is not unlikely that the English Law Commission, currently mulling hate crime laws and not known for its particular attachment to free speech, will also come up with something like them. 

One thing, however, has so far been missing: sex. Although sex discrimination has been illegal for more than forty years, hitherto no-one has seriously argued that we needed to extend the criminal law in order to moderate the battle of the sexes and ensure good relations between them. To most people this is a matter of great relief. Unfortunately, this relief may not last much longer. 

The problem started when some years ago progressive feminists decided, in their Humpty Dumptyish way, that the meaning of the word “misogyny” required some serious adaptation. Limiting it to its original sense, the kind of dislike of women and their society associated with the likes of Mycroft Holmes, would not do: it had to be stretched to cover any sexist belief or practice, including an inadvertent one – so much so that even women themselves could display it, albeit in an “internalised” form. Indeed, it could be almost completely dissociated from human agency; so, rather as racism could be systemic, institutionalised and indicative of any social system where one race was perceived to do worse than another, there was (it was said) a mysterious miasmatical misogyny present in the world that underlay most of the woes of women, from catcalls in the street to domestic violence and even rape. 

The early results of this were admittedly not disastrous, albeit rather silly. The police had a policy of prioritising hate crime, so that, for example, the beating-up of someone because of their race was more closely investigated than an ordinary beating-up for other reasons. (This was and is a very bad idea, since it pushes equally deserving complainants down the queue: but that is another story.) It was a short leap to the demand by the progressives that incidents said to reflect misogyny should come under the hate crime umbrella too, and go to the front of the queue. This duly led to absurdities such as hard-pressed police having to prioritise complaints about wolf-whistling, which – however vexing – have nothing to do with hatred. 

At least this did not affect the law itself, but merely the police approach to it. There are now two further proposals which would do so, and in a worrying way. 

There could be serious implications for freedom of speech

To begin with, under the slogan “Make misogyny a hate crime”, there is now serious pressure to change the law so as to require courts to pass harsher sentences for any crime found to have been motivated by “the dislike of, contempt for, or ingrained prejudice against women”. Earlier this year Wera Hobhouse, LibDem MP for Bath, introduced the Hate Crime (Misogyny) Bill, which is due its a second reading in a couple of months. This Bill has the support of the Fawcett Society, Citizens UK and a fair number of MPs, including the vociferous Stella Creasey. Nor is this the only legislative proposal. Not to be outdone, Philip Hollobone, a Tory, has a similar bill, except that this one also adds in misandry. It too is due a second reading in November. 

The idea of misogyny as an aggravating factor can be presented as a tidying-up exercise, aimed at putting crimes motivated by sexism on the same basis as those motivated by racism, dislike of gays, or whatever. But is actually rather dangerous. First, it is likely in practice – indeed this may be its unstated intent – to act not so much as a punisher of motivation, but as a backdoor means simply to raise sentences across the board for almost all cases of male-female sexual abuse, domestic violence or coercive behaviour.

Evidence from the victim that the defendant never regarded them as an equal, or used words such as “just like a woman” in the heat of an argument that came to blows, is likely to be more than sufficient to infer the necessary motivation and sentence a male defendant accordingly. If misandry were included, the converse would be true: evidence that the defendant said “just like a man” or acted as the office vamp who looked down on all the men she worked with, would have much the same effect. This may, of course, be a good idea: but it should be done openly and not by a legislative side-wind.

Secondly, there could be serious implications for freedom of speech. Using abusive words in such a way as to cause distress is already a crime. Online it is a criminal offence under the Communications Act 2003 to say anything “grossly offensive”: an offence fairly commonly prosecuted and relatively easy to prove. The result of adding misogyny to the list of aggravating features will be to make not only criminals, but potentially quite serious criminals, out of those who utter ill-considered words in public. There are better uses for criminal law than coming down heavily on old-fashioned male chauvinists, or for that matter a serious-minded imam, who express their views on the place of women in society too forcefully for the tastes of the easily offended.

The proposal to see misogyny as an aggravating feature is not the only one now in the air. There is also a more radical policy suggestion, calling for the criminalisation of those who stir up hatred on the basis of sex, tout court. The SNP in Scotland is a major proponent of this idea. Although its current hate crime bill stops short of introducing such a provision, it lays the foundations for it by including a power allowing its introduction by extra-parliamentary ministerial order at a later stage. All the indications are that if the Bill is passed the power will be exercised within a fairly short time, the only issue being the precise wording of any necessary regulations. It is also being considered by the English Law Commission, which is currently looking at hate crime with a view to legislation on the subject; rumour is that the Commissioner responsible is receptive to the idea, though no recommendation has yet been made.

As with the aggravation proposal, the idea of introducing a standalone offence of stirring up hostility on the ground of sex is largely defended as a symbolic tidying-up exercise. If fomenting hatred based on race, religion, sexual orientation or whatever is a crime, adding sex to the list is merely removing an anomaly; it is ensuring equal treatment of all victims, and ensuring that no single protected class is seen as less deserving of protection than another. This argument is almost entirely specious.

There is no social problem of sex hatred equivalent to that of racial or religious hatred

For one thing, despite the sloppy use of phrases like “hate crime” to describe both, the analogy between racial or religious hatred and misogyny is a false one. Race or religious hatred is a genuine social cancer, typically comporting a desire to have a minority group removed or marginalised; those guilty of it would, in most cases, be perfectly happy if the relevant group did not exist at all. Misogyny, even in the extended sense it is given today, is something very different. It means merely distaste for the society of women, disavowal of sexual equality or participation in a social system that denies it. It affects not a marginalised minority but half the human race. Misogynists (or misandrists) overwhelmingly do not call for, and would not want, the elimination of the sex in question; they merely dislike the prospect of associating with it on a basis of equality.

It follows that, however strong the case for suppressing the stirring up of racial or religious hatred, misogyny cannot, so to speak, come in on its coattails. The argument for a crime of stirring up misogyny must stand on its own feet. Does it? It seems highly unlikely. There is no social problem of sex hatred equivalent to that of racial or religious hatred. Men do not go around saying they hate women in the sense that they would be happy if there were none, nor yet women men (as demonstrated by the sheer kookiness of French author Pauline Harmange’s succès de scandale “Moi les hommes, je les déteste”). True, there is a problem of discrimination, and undoubtedly in many cases women still end up short-changed. But while this may amply justify anti-discrimination laws, it provides no argument whatever for any stirring-up offence. 

The other argument against a misogyny or “sex hatred” offence is an even simpler one: free speech. In the absence of any genuine sex hatred which has to be suppressed in order to secure social peace or non-marginalisation of females (or males), the only thing any such offence could bite on would be statements against sex equality, or in favour of the subjection of one sex to another. And whether you like such statements or not, they amount to the expression of particular opinions about the way society should be run, something fairly and squarely within the territory of free speech. There is no excuse for proscribing them by law, least of all on the basis of some faux-egalitarian idea that if one particular interest group gets the right to silence speech it does not like, then all other interest groups should be given a similar right. Equality of illiberalism is not an attractive doctrine: to the contrary, you and I, together with chauvinists, religious enthusiasts and others with strong opinions, must be allowed to say what we please.