[Gay] Gay News from Around the Gay World That is Gay

[Josquius]

It's not the state of the mind which is the crime. You're perfectly free to believe trans people are nothing but men playing dress up. The crime is in attacking them with this insult, purposefully trying to upset them.

Much like I'm perfectly free to wish someone dead, but not to actually kill them.

[Sheilbh]

Are there other crimes where the state of mind is the crime?  I really don't understand the role of mens rea in jurisprudence and am willing to be educated.

As CC says (and BB will know vastly more than me) intent is required for most crimes. Intent or not is the difference between murder and manslaughter, I think.

I think in certain crimes recklessness may be enough (which, I think, is tied to whether the criminal act was reasonably foreseeable from the recklessness).

There are relatively few crimes where intent isn't relevant. That's strict liability, but I think that's relatively limited. I think it applies in the UK in certain sexual crimes but also in more "regulatory" crimes - so it doesn't matter that you didn't intend to illegally dump toxic waste on the school playground.

[viper37]

So she's transphobic and scare mongering?

I would say she has "issues" that aren't being dealt with and she needs therapy, or a better therapist.

I don't know how to explain this without appearing insensitive.  But she has a deep fear of men and sees transgendered females as still biological males and that represents danger to her and all other women out there.

It's not scaremongering, it is irrational fear.

Like any kind of phobia.

[The Brain]

Are there other crimes where the state of mind is the crime?  I really don't understand the role of mens rea in jurisprudence and am willing to be educated.

As CC says (and BB will know vastly more than me) intent is required for most crimes. Intent or not is the difference between murder and manslaughter, I think.

I think in certain crimes recklessness may be enough (which, I think, is tied to whether the criminal act was reasonably foreseeable from the recklessness).

There are relatively few crimes where intent isn't relevant. That's strict liability, but I think that's relatively limited. I think it applies in the UK in certain sexual crimes but also in more "regulatory" crimes - so it doesn't matter that you didn't intend to illegally dump toxic waste on the school playground.

In the waste case, if there is a transport accident (ie no intent) and waste ends up on the playground, are you actually charged with the dumping of waste or are you charged with any non-compliance issues regarding the transport itself?

[Sheilbh]

No idea I'm afraid, that's just the example I remember from law school of what strict liability means

[Admiral Yi]

It's not the state of the mind which is the crime. You're perfectly free to believe trans people are nothing but men playing dress up. The crime is in attacking them with this insult, purposefully trying to upset them.

Much like I'm perfectly free to wish someone dead, but not to actually kill them.

Purposefully describes a state of mind.

[garbon]

So she's transphobic and scare mongering?

I would say she has "issues" that aren't being dealt with and she needs therapy, or a better therapist.

I don't know how to explain this without appearing insensitive.  But she has a deep fear of men and sees transgendered females as still biological males and that represents danger to her and all other women out there.

It's not scaremongering, it is irrational fear.

Like any kind of phobia.

So that sounds like transphobia. Coupled with some callous disregard for the people she is afraid of.

And it is scaremongering because it is trivially easy to think about how men and women could, and for the most part can, go into a bathroom of the opposite sex.

[Admiral Yi]

As CC says (and BB will know vastly more than me) intent is required for most crimes. Intent or not is the difference between murder and manslaughter, I think.

I think in certain crimes recklessness may be enough (which, I think, is tied to whether the criminal act was reasonably foreseeable from the recklessness).

There are relatively few crimes where intent isn't relevant. That's strict liability, but I think that's relatively limited. I think it applies in the UK in certain sexual crimes but also in more "regulatory" crimes - so it doesn't matter that you didn't intend to illegally dump toxic waste on the school playground.

Seems to me most everyday crimes--speeding, assault, trespassing, drunk driving, theft--don't have an intent element.  Killing seems to me unique in that regard.  But as always I could be dead wrong.

Leaving that aside, isn't murder and its kin different from speech crime in that we believe we can infer the intent from physical actions such as purchasing a gun, tracking the victim's movements, etc?  On what basis can we judge whether a person "intends to stir up hatred," other than by prejudging the words communicated themselves?

[Jacob]

Wouldn't the words themselves be a clue?

"[People like Admiral Yi] are despicable! They're less than human! They're morally anathema! They want to hurt decent people like you and I, and they want to exploit our children and sexually attractive women! They lie and they cheat! Some of them are violent and cruel... most of them! It's in their very nature! They take things that are rightfully us (sexual partners, jobs, tax money, public space, opportunities, housing) and rub it in our faces! We should protect ourselves against [people like Admiral Yi]! Here's an example of something disgusting and awful [someone like Admiral Yi] did! If we don't do something to stop them, they'll run rampant, hurt everyone, and destroy the very foundation of our society!"

It's not encouraging any particular acts beyond "we must stop them", but it seems to stir up hatred against [people like Admiral Yi] (however we define that group).

[The Brain]

In Swedish law intent is normally whether you meant to perform the action or not, not what you hoped the results would be of the action.

[Sheilbh]

Seems to me most everyday crimes--speeding, assault, trespassing, drunk driving, theft--don't have an intent element.  Killing seems to me unique in that regard.  But as always I could be dead wrong.

The intent here is to commit the act that is unlawful. Theft and assault definitely have intent elements. From memory (and I am not a crriminal lawyer) drunk driving does too and there's a big line of cases on voluntary v involuntary intoxication. Trespassing isn't a crime in the UK (you normally need to do something else for it to be criminal).

Speeding you could be right - that might be one of those strict liability/regulatory style crimes.

But I am very very much at the edge of my ignorance, so I hope BB can maybe explain

[Admiral Yi]

Wouldn't the words themselves be a clue?

"[People like Admiral Yi] are despicable! They're less than human! They're morally anathema! They want to hurt decent people like you and I, and they want to exploit our children and sexually attractive women! They lie and they cheat! Some of them are violent and cruel... most of them! It's in their very nature! They take things that are rightfully us (sexual partners, jobs, tax money, public space, opportunities, housing) and rub it in our faces! We should protect ourselves against [people like Admiral Yi]! Here's an example of something disgusting and awful [someone like Admiral Yi] did! If we don't do something to stop them, they'll run rampant, hurt everyone, and destroy the very foundation of our society!"

It's not encouraging any particular acts beyond "we must stop them", but it seems to stir up hatred against [people like Admiral Yi] (however we define that group).

My first thought was you could replace Admiral Yi with [the rich] or [big corporations] or [straight white men] and it sounds like standard boilerplate leftist rhetoric.  So if the people who wrote this legislation think "any" negative judgements which are vocalized should be punished by time in jail that's a terrifying dystopia.  If they think only negative judgements which are vocalized about "protected classes" that's even more terrifying.

[Sheilbh]

Britain is sadly a terrifying dystopia - although the test of stirring up (racial or religious) hatred is a bit higher than Jake's post. That's been the law here for about 50 years (on racial grounds, religion was added in the 2000s).

The shift in Scotland has been to expand the protected characteristics to also cover age, sexuality, disability, transgender identity, variations in sex characteristics and nationality or ethnic or national origins. It is a defence to show that the behaviour was, in the circumstances, reasonable - and they make reference to the ECHR line of cases on free speech and the right does include expressions that offend, shock or disturb (Humza Yousaf's been calling this the free speech triple lock).

As I say my instinct is more American - though not absolutist on this - and there has been pushback against this as getting a bit too broad and possibly having a chilling effect. I think lawyers seem divided - some support it, some don't and some think the drafting isn't clear enough (plus ca change ).

[viper37]

So she's transphobic and scare mongering?

I would say she has "issues" that aren't being dealt with and she needs therapy, or a better therapist.

I don't know how to explain this without appearing insensitive.  But she has a deep fear of men and sees transgendered females as still biological males and that represents danger to her and all other women out there.

It's not scaremongering, it is irrational fear.

Like any kind of phobia.

So that sounds like transphobia. Coupled with some callous disregard for the people she is afraid of.

And it is scaremongering because it is trivially easy to think about how men and women could, and for the most part can, go into a bathroom of the opposite sex.

One of my ex had a fear of bridges.  Especially the small ones.  She would enter panic mode if we had to cross a small bridge.

I know a girl, she has a fear of transportation and severe claustrophobia.  Try to get into a cat-scan and she screams, she shakes, she can't stay still, they have to sedate her.  In an airplane, even sedated it's not working.  In a boat, it has to be a big boat, she has to stay inside, not near the railings and trip must be a few hours at most by calm sea.  She also has a fear of snakes, even the toy ones.

It is totally irrational.  All these fears are.

All of these women need therapy for these fears.  But they refuse to see it that way.


I know women who fear that they're going to be assaulted by men as soon as they step out of their apartments in the city and they insist on "safe space".  We call them "activists" instead of "men-phobic".

It's not always hateful, but they have issues due to past trauma.

[Jacob]

My first thought was you could replace Admiral Yi with [the rich] or [big corporations] or [straight white men] and it sounds like standard boilerplate leftist rhetoric.  So if the people who wrote this legislation think "any" negative judgements which are vocalized should be punished by time in jail that's a terrifying dystopia.  If they think only negative judgements which are vocalized about "protected classes" that's even more terrifying.

1) A reasonable set of objections. I guess it comes down to where you draw the line. I think "any negative" is too far, but I'm not sure "everything is permissible to say" is the right call either. Which leaves me with "it's judgement call, potentially ambiguous and hair-splitting," which is perhaps not ideal.

2) I think your concerns about "protected classes" are legitimate to have. I don't know if I'd rate the issue as "terrifying", but I'm ready to consider the issue "potentially problematic".

3) I don't think substituting in [corporations] is valid, as corporations are not people. I also don't think [rich people] is necessarily valid in the current context, because [poor people] and [economically comfortable but neither rich nor poor people] are considered protected classes. [Straight white men] is valid, though, if you want to apply a test to determine whether the motivating factor is "that's the kind of thing you're not allowed to say about groups of people because it's hateful" or whether it's "these are the kind of people you're not allowed to say hateful things about, but other kinds of people are okay."

... tangentially, related to 3) I've just been seeing a bunch of headlines/ social media today saying that Trump, if elected, plans to use the full force of existing anti-discrimination legislation and protections as a tool to protect and empower straight white men.