Defining hate speech

“Hate speech” per se is not a legal term, as the proper term used is “incitement to hatred”. Don’t try to search the term hate speech within the Code because you won’t find it, which is a pity, as it needs to be called by its name

As an offence it is embedded within art. 82A, which includes the perpetration of acts based on hate crime. The way the article is worded perhaps needs to be simplified in the same way that the cluster of offences in articles 251A to D are, for example. Perhaps it is because I prefer the British way of drafting laws, with the clear use of verbs that describe the actus reus, and where the mens rea is also clearly articulated. The European way of drafting law is haughtier, outlining principles and addressing the actus reus later, with the poor law enforcer spending needless energy to formulate decent-looking charges.

To use a parallel example within the same Code, the legislator has clearly distinguished the crimes of harassment, stalking and fear of violence and this is how article 82A should perhaps look like. Incitement is a difficult term to use, to collect the right evidence for it since it is an intangible behaviour. The constituting elements of hate, of speech and related crimes fomented by hate, need to be clear. So how about taking the opportunity offered by discussing Bill 235 and re-wording this article, making it more workable and enforceable?

Hate speech is very specific: it has to attack the protected characteristics of a person, which are race, nationality (including citizenship), ethnic origin, colour, language, religion, politics, opinion, gender, gender identity and sexual orientation. Bill 235 is adding the characteristics of disability and old age. What distinguishes the offence of hate speech from all the other speech-related offences is that the intent is to dehumanise, debase and degrade the person because of his/her protected characteristics.

Speech encompasses verbal, written or printed words, and such speech is deemed hateful if it is threatening, abusive or insulting. “Hate” is further defined by art 222A of the Criminal Code as behaviour demonstrated in an act that shows hostility, aversion and contempt to the victim because of the protected characteristics. That’s ostilità, stmerrija and disprezz in Maltese. If present, it increases the punishment by one or two degrees, so from the indicated range of six to months imprisonment, this could go up to three years.

So hate speech is not simply gossip, which is tantamount to spreading information that might or might not be truthful. While one understands that the triggering behaviour might be vengeful, it’s still miles away from the offence of hate speech.

There are other separate offences related to hate speech: condoning, denying or grossly trivialising genocide, war crimes or crimes against humanity that would disturb the public order, as well as aiding and abetting the same and forming organised groups to perpetrate such offences. This carries between eight months to two years imprisonment, which would increase to four years if aggravated.

As a parent of a child with disabilities and who is a wheelchair user, it is perplexing that it took so long to include disability as a protected characteristic. The closest one got to this protection is through the politically incorrect and utterly insulting wording of the law itself in in art. 339(1) (n) of the Criminal Code: whosoever “annoys, vexes or scoffs at any imbecile, aged, crippled, feeble or deformed person”. In Maltese it looks just as bad: kulmin idejjaq, jagħti fastidju jew jiddieħek b’nies boloh, xjuħ, magħtubin, mifluġin jew immankati. It’s puzzling how no one has changed that part of the law, written as far back as 1854, and how this kept passing unnoticed through the disability and mental health toll gates in spite of the recent years of awareness. Protection was awarded through a contravention. One wonders at how effective this has ever been.

The amendments to Bill 235 are welcome but there’s still more to do. How about the carers of disabled and of elderly persons? To think that the bearers of disability and old age are the only targets is shortsighted. As a parent I have faced instances in the playground, at cafeterias, and even while trying to use the designated parking spaces for the disabled, of acutely offensive speech. The narrative is just as bad: that my daughter’s disability is my fault as a mother, that as a woman I surely had no idea of how to give proper birth and that I needed to have my child exorcised because the Bible speaks of sins of the fathers.

Does Bill 235 protect a designated carer, who is attacked, directly and/or indirectly, by hate-induced speech? It is immoral, but it does not look like it is illegal yet.