Ordo Iuris: any privileged, others gagged. On the draft law on “Hate speech”

The Sejm is working on a government draft law on the penalization of alleged hatred speech. The revision of the Criminal Code aims to establish a "sexual orientation" protected feature and thus introduce time-consuming restrictions in expressing opposition to LGBT claims.

According to the institute, designers, despite the deletion of the concept of "sexual identity", did not abandon their intention to change the definition of the basic legal concept of "sex" so that it was understood as a social construct alternatively than an objective, biological reality.

The task extends the scope of the proposed government to situations where the protected quality was not the direct origin of the crime and would not even be the victim of the alleged crime at all.

Since the beginning of the current parliamentary term, the bill on "Speak of Hate" has been announced by the left (print No 876).

According to the draft, the following provisions would be subject to amendment:

Article 53(2a) contains a catalogue of aggravating circumstances which the court takes into account erstwhile administering the penalty,

Article 119(1) which concerns force or unlawful threat,

Article 256 § 1 concerning the public promotion of a fascist or another totalitarian state or hatred speech,

Article 257. concerning the public insulting of a population group or individual.

Each of the above regulations contains a catalogue of protected characteristics which is fundamentally composed of 2 groups:

nationality, ethnic, racial,

religious affiliation or non-denominationalism.

If a crime has been committed due to any of these features of the victim, this consequence in the anticipation of imposing a higher penalty. The task aims to extend this catalogue by the following features: sexual orientation, gender, age, disability.

The present catalogue included only those distinguishing criteria, which, as past teaches, can be the root causes of social unrest, riots, crimes against humanity or civilian wars, due to the fact that the intent of these provisions is to prevent these consequences.

The addition of further protected features (different criteria) was repeatedly criticised, among others, by the ultimate Court, which already noted in 2014:

"Above the biggest crime problem hate speech is the causisticness of regulation, alternatively of its abstractity. The addition of respective crucial grounds of discrimination in the proposed government does not exhaust all possible discriminatory factors, but for equally crucial factors specified as intellectual illness, AIDS, addiction to alcohol or drugs, obesity, homelessness. This kind of legislative method makes these regulations should be updated indefinitely, otherwise, the regulation will not treat all groups discriminated against in an equal manner."

The Ordo iuris Institute emphasises: in the government's draft for the introduction of criminal sanctions for "the speech of hatred", it is fundamentally about extending the catalogue of "protected features" to sexual orientation and sex understood in a very circumstantial way, de facto akin to "sexual identity".

In the legal assessment of the organisation, combining them with characteristics of a fundamental different nature as age and disability can serve:

– gaining allies (environments of people with disabilities) in lobbying for the revision of the penal code,

– concealing the ideological nature of the task under affirmative associations related to the protection of women, aged and disabled.

– recognising them as qualities that – as in the case of age or disability – have no influence.

– It is worth noting that 2 changes were made to the task before it reached the Sejm. – says Mr Rafał Dorosinski, associate of the Management Board of the Ordo Iuris Institute. – The first is to extend the scope of the proposed rules to situations where the protected quality was not the direct origin of the crime and would not even be the victim of the alleged crime. This would lead to the fact that it would not be essential to show that the protected quality was the origin of the alleged crime to convict someone. This reinforces the de facto logic of privileged treatment of protected social groups – noted the lawyer.

The second amendment is to delete the notion of ‘sexual identity’, which, as noted in the explanatory memorandum, "reduces interpretational doubts raised during the public consultation". By deleting this word from the project, however, its authors did not abandon their intention to redefine the basic legal concept of "sex". In the message of reasons:

‘It seems that, in principle, the deadline itself Gender – alternatively of because of gender – should lead to explanation in the spirit of the Convention on the Prevention and Fight Against force against Women and home Violence".

Meanwhile, in the Convention on the Prevention and Prevention of force against Women and home Violence, besides known as the Istanbul Convention, the concept of gender, gender) is understood as a social construct, not an objective, biological reality. The adoption of specified a sex knowing would fundamentally mean that an individual declaration relating to its self-identification with a peculiar sex (gender) or its "sex identity" takes precedence over the objectively existing sex (biology). Consequently, the adoption of a criminal liability task could be subject to a individual objecting to the entry of women's men into women's dressing rooms (e.g. swimming pools), toilets, shelters or placing convicted offenders in 1 cell with a woman.

In Ordo Iuris' opinion, the government's task so leads to a ban on opposing LGBT demands and imposing their views on sexuality and sexuality. The proposed provisions do not express this explicitly, but this is in practice the effect of recognising "sexual orientation" as a protected feature, which is provided by countless examples by countries where akin regulations have been adopted.

The first victims of censorship are Christians, journalists, scientists, politicians, clergy, and social activists. Among them was the Minister of the Interior of Finland, a associate of the Chamber of Deputies of Mexico, a Spanish tv station, a Belgian parliamentarian, a Swiss bishop, or a popular Polish writer not allowed into the UK. Eventually, repression affects average people who are punished for expressing their spiritual or social beliefs.

The book Rafał Dorosiński’s book “A fight against hatred speech” is devoted to the discussion of the dangers related to “the fight against hatred speech”.Hate speech – a Trojan Cultural Revolution horse”, available at www.kontrojanski.pl.

Source: Ordo Iuris

RoM

Read Ordo Iuris analysis