Comment To Professor C.Ed Hsu On Hate-Crime Legislation

As below, here: the tenth comment on this article. There were actually many other points in that article which I could have picked up on, but this is the most serious and somebody has to do the job of pointing out what is wrong with it.

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Professor Hsu,

If the effectiveness of hate crime legislation as a deterrent is at best unknown (and as I have pointed out already, there is almost a decade worth of data [U.S. Department of Justice: Bureau of Statistics] indicating that it has no deterrent effect), then your argument for introducing it is extremely weak. This situation is actually quite reminiscent of the death penalty debate; the statistical evidence for the death penalty as a deterrent to capital crimes is weak, which stands to reason given that these crimes tend to be "crimes of passion" or otherwise committed by people with mental health issues. Similarly with hate crimes - particularly violent hate crimes such as the Charleston shooting last year - they tend to be committed by nutters who either care not one jot for the consequences to themselves, or even glorify in the attention they will get. It is difficult to see how such people can be deterred by mere legal repercussions.

And yet, despite the lack of decisive statistical evidence for any deterrent effect, you advocate hate-crime legislation for Taiwan anyway. Your argument for this appears to be little more than the all too familiar copy-cat case: that anything vaguely "progressive" done by governments in the U.S. and Europe should be uncritically adopted by the government in Taiwan. It is difficult to see what the value of this is, aside from the opportunity for certain Taiwanese to engage in virtue-signalling about the "progressiveness" of their country.

Yet this is to treat the subject with a disturbing frivolousness.

As pointed out earlier, there are also very serious ethical and legal objections to the nature of hate-crime legislation. I shall briefly outline these objections below for your consideration.

1) The insistence on basing criminal legislation not on intentional actions (murder, rape, arson etc) which can be objectively investigated, but on the vague term of "abuse" is a dangerous shift toward subjectivity in law. There has to be a clear and specific (and therefore limited) definition of "abuse", and this definition needs to be commonly understood among the public. Where is the line to be drawn between "criticism" of, for example, religion and "abuse" of a person owing to their religion? Where is the line between "criticism" of another person's political ideology and "abuse" of that person owing to their political ideology? I may despise communists, fascists and other stripes of collectivist, but I do not want them banned from commenting and criticizing on the liberal democratic order on the grounds that such commentary could be construed as "abuse". It is obvious therefore that poorly defined hate-crime legislation directly imperils our basic liberties such as freedom of speech.

2) Basing legislation on categories of people (e.g. race, religion, gender, sexuality, disability), raises the question of which categories and who is to choose them. This is a direct departure from the idea that everybody is equal before the law as certain categories of people will have additional protections that others do not have - and, currently, this will be on account of superficial things which should not matter, such as their skin colour or genitalia or sexual orientation. But this may change with new and broader or narrower categories introduced further undermining the ideal of equality before the law. Because this is a fundamental change in the nature of law and society, it is difficult to overstate the danger of this as a legal precedent in modern times.

3) As it will often be difficult in many cases for the prosecution to establish the defendant's "hate" motive, there will be the temptation in respect of hate-crime cases to change the law so as to reverse the burden of proof onto the defendant in order to secure higher conviction rates (perhaps in pursuit of that elusive deterrent effect). This too will be a fundamental change in the nature of law; a man could be falsely accused of a crime and be unable to prove his innocence to the (perhaps capricious and corruptible) satisfaction of a judge. The scope for such laws to be abused for purposes of political and personal persecution surely needs no further elaboration.

I hope that, in the light of my responses, you will reconsider your view on the introduction of hate-crime legislation to Taiwan. Just because mistakes are made in the U.S. and elsewhere is no reason for those same mistakes to be repeated here.

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