But what is a “hate incident”? What was Miller accused of?  In technical jargon a hate incident is a potential though not yet proven hate crime. The Crown Prosecution Service currently defines it in terms of victim or bystander perception. Even if no evidence is subsequently found of a speaker’s hostility, the incident remains on the perpetrators’s record. These incidents can turn up on enhanced checks, independent of outcome. It may not be a conviction, but it’s a formal mark against a person’s reputation.

This sort of methodology was originally introduced following the Macpherson Inquiry into police mishandling of Stephen Lawrence’s racist murder in 1993. As Brian Cathcart’s book, The Case of Stephen Lawrence, shows, racist abuse towards ethnic minorities in Lawrence’s borough of Greenwich was rampant, violent, and underreported. When reported, it was often dismissed by an institutionally racist force. A culture of fear also inhibited witnesses from giving evidence.

It made sense to develop a system in which victim perceptions of racism are taken seriously; and in which absence of evidence doesn’t necessarily automatically imply elimination from records. But that doesn’t really apply to the Miller case. 

According to the Public Order Act 1986, for a hate crime to be proven, there has to be the right sort of accompanying psychological intentions: for instance, to intentionally cause “harassment, alarm, or distress”, to intentionally cause the belief that unlawful violence will be used, or to intentionally “stir up racial hatred”.

So the question to ask is: was Miller’s retweet, whether poetic or not, born of hostile intentions to harass, distress, or incite? As I wrote in a witness statement for Miller’s judicial review, paradigmatic cases of hate speech involve slurs and pejoratives, which function most of the time to reveal intentional aggression. Though there are exceptions, most of the time hostile intent is easily recognisable from context.

In contrast, saying or implying, as Miller did, that trans women are “men” or “male” is nothing like this. It is not necessarily a hostile statement. After all, until recently everyone was taught that definitions of “man” and “woman” are synonymous with “male” and “female” respectively. Perhaps Miller heard it said that trans women are women, and simply decided that to him, it made no sense to define them in such a fashion.

So if hate speech is determined by intention, then even if Miller is wrong on that point, then his statement shouldn’t constitute hate speech nor even be reasonably be perceived as such. Because being wrong isn’t being hateful.

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Kathleen Stock is an UnHerd columnist and a co-director of The Lesbian Project.

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