Scotland's Hate Crime Act: This Orwellian attempt to please all the angry people isn't going to end well – Kate Copstick

Performers should be protected from hate crime allegations in the same way that boxers are not at risk of being charged with assault

Are we all looking forward to Monday? It will be a cold day in April. And the clocks will be striking 13. “If someone targets you, or someone else, because of a dislike or prejudice of your disability, race, religion, sexual orientation or transgender identity then you should report it as a hate crime,” says the advice from Police Scotland on the new hate crime law. “Targets you” – any woollier and it would be a bobble hat.

You will have to forgive me if I seem disturbed that the government of Scotland has embraced Thoughtcrime quite so enthusiastically. I studied law. Scots law is a grand old lady, one of first principles and important standards. And now we are come to a time when (potentially) our police will prowl comedy clubs by night, alerted by complaints of trauma-inducing one-liners about birds with big hands.

What happened to 'de minimis non curat lex' (the law does not take account of trifling matters)? I am not, for one second, suggesting hate crime does not exist. Or that it is not an egregious aggravation of any act of violence. Good grief, I come from Paisley in the 60s!

Saying the unsayable is what comedians like the controversial Jerry Sadowitz are for (Picture supplied)

For anyone who grew up through ‘queer-bashing’ and racially motivated forms of ‘bashing’, hate crime comes from a festering dark place in the soul, an atavistic place far beneath actual thought, and to be targeted because of who and/or what you are is particularly devastating.

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But we are living in an age – to be fair, with a generation – of unsettling levels of personal entitlement, where “I feel” trumps absolutely everything. And for the law now to make that the standard of proof in a crime, makes calling the law an ass a borderline hate crime against asses.

Terrifying standard of proof

For anyone with any 'protected characteristic' to be able to report random (or, much worse, knowingly chosen) material in a comedy club to the police as a hate crime is… Orwellian. And Orwell was really not that funny. To make their emotional reaction the legal standard of proof of an aggravated crime is quite simply terrifying. Where do we go next?

How long before a lecherous look becomes a sex crime because “I felt raped”, or any negative comment at all becomes an offence if “I felt it was an assault on my [insert protected characteristic here]”. What happens when a protected characteristic becomes a protecting characteristic? Because, you know, unreconstructed bitches and bastards come in all shades and self-identifications. Doesn't mean they are not unreconstructed bitches and bastards.

Our esteemed leader has said the right to criticise, insult and offend “exists and should be treasured”. Really? Can we not see the problem with “a legal definition of hate crime” being “any crime which is understood by the victim or any other person as being motivated (wholly or partly) by malice or ill will towards a social group”?

I fully realise many of The Scotsman's younger readers might not remember this, but that whole sentence just brings to mind Ali G's “is it because I is black?” mantra. Does the phrase “which is understood by the victim or any other person as being...” not have you even slightly worried?

Vicarious victimhood

The fact is that the person experiencing hate does not even need to be in one of these groups. It is, we are told about “the perceptions of those involved”. So… vicarious victimhood is now a thing?

Cue traumatised friends of the front row from a Jerry Sadowitz gig lining up at their nearest “third-party reporting centre”. The legislation is unworkable (I hope) when applied to areas of performance, theatre or comedy. Saying the otherwise unsayable is, in part, what these art forms are for. Plus, ooh, what was the other thing ? Oh yes, they are not real. Clue: they are on a stage, under bright lights… in their display case.

We, the potential victims of any potential hate crime, have to take time and money to go in and experience it. No comic is using their big finish to come up to fragile souls, with their protected characteristics, in the street and loudly ask whether being an old pansexual means you have a thing for Teflon coating.

One boxer smashing another in the face, in the ring, is a sport. Protected, one might say. Do it outside the ring, it is assault. Simple. We should protect performance, we must. We must protect free speech. Surely what remains of the thinking generations cannot allow something to be criminalised if some 21-year-old who identifies as a bouquet of flowers finds it upsetting. And it trivialises those victims of real hate crime. Of which there is a great deal. But it is not being committed in comedy clubs. Or theatres.

A fundamental legal pillar

I remember our criminal law lecturer explaining the legal concept of “the man with the eggshell skull” (check it out, I have 900 words and you have Google) and it seems now we are to embrace the idea of the “person/being/life-form with the eggshell sensitivities”.

In this terrifying piece of legislation, it is not even about your “malice or ill will”, just someone else's perception that you bear malice or ill will, effectively sidelining actual mens rea (guilty mind), a fundamental pillar of Scottish Criminal Law.

One final thought. As I look down the list of protected characteristics, or PCs, I feel I can assume that some of this, at least, is being driven by the groups with the most currently powerful lobbies. T'was ever thus, and although I have no huge problem with the prohibition on lese-majeste now applying to all kinds of queens, I just know this misbegotten example of trying to please all of the angry people at one time will become another playground for the terminally self-obsessed and their acolytes.