In 2010 of the Labour government made cuts to legal aid with deeper cuts by the coalition government in 2012. The deepest cuts coming after 2013 when LASPO (Legal Aid, Sentencing and Punishment of Offenders Act was passed by Parliament. The cuts meant many people facing family, civil and criminal cases were defined limits imposed on their legal rights in aid. It would be fair to say those mostly affected were from poorer households. Cuts were accentuated in a time of austerity where the coalition government imposed huge cuts to disability entitlements, which saw thousands commit suicide. Into thousand 17 the Crown Prosecution Service declared they would be cracking down on social media hate speech.
Freedom of Expression guidelines broadly define hate speech as “forms of expression which incite violence, hatred or discrimination against other persons and groups, the tick Lily by reference to vet ethnicity, religious belief, gender or sexual orientation...” The guidelines make no reference at all to disability either mental or physical. The guidelines also acknowledge there is no universally accepted definition. This leaves interpretation open and vague, which could cause more problems than solve, as interpretation could be manipulated to fit an ideology or narrative. It would therefore not take into consideration other factors such as mental health.
As mentioned in M.L. Perlin’s book: The Hidden Prejudice Mental Disability on Trial, in chapter 12 Exposing the Prejudice, Perlin touches upon the law prioritising focus groups such as feminist jurisprudence, economics, critical legal studies and critical race studies, ensuring deep research, great funding and plenty of attention. These groups have been involved in criticising freedom of speech and demanding crackdowns on hate speech over the Internet. They argue that free speech can be offensive and runs the risk of causing psychological harm to otherwise healthy people.
However, what their arguments do not consider is whether the person causing offence is doing so intentionally. It is frequently assumed that offence is often done with intent. But what if the person who has caused offence does not understand this? What if a person who was caused offence is struggling with mental illness? Perhaps the person speaking undesirable fort suffers with depression, bipolar, personality disorder? Maybe they have suffered a traumatic crime at the hands of a person belonging to a marginalised group and are speaking publicly about that event. Speaking of such an experience will inevitably be offensive to some.
Perlin, who wrote this book in 2000 notes the extensive research provided to these various focus groups regarding law in comparison to mental illness which received its last research investigation in the 1980s. A two-decade timespan. Furthermore, research has been non-existent since the year 2000 and seems only to be done in America. Perlin discusses therapeutic jurisprudence and defines it as recognising rules, legal procedures and roles with consideration of those with mental health disabilities with anti-therapeutic jurisprudence providing a negative impact on that group. The CPS crackdown could be considered reflective of anti-therapeutic jurisprudence regarding mentally ill people using social media. It is not Perlin’s intention to create a therapeutic state but instead consider mental health with regards to legislation. This is not believed to be taking place.
It is also Perlin’s concerned that research will be limited to academic circles preventing necessary changes in the legal system or within the fast-evolving society. Despite the extensive literature over the decades regarding mental illness it has continued to be ignored by the judicial system. In Europe under article 14 of the European Convention on human rights individuals have protection against discrimination. However, the freedom of speech guidelines proves this to be wrong, displaying discrimination towards disabled. Perlin provided with research almost 2 decades ago identifying very little research in Western society is provided or considered regarding mental health and the legal system.
So why is this?
Perlin identifies sanism as a dominant psychological force which distorts rational decision-making, encourages pre-textuality and teleology, and prevents focusing on questions are meaningful to therapeutic jurisprudence enquiries. Sanist decisions operate in an anti-therapeutic world. Until this system sanist biases are confronted and social science data is intelligently weighed and assessed, mental health will lack consideration in this way. Perlin has also criticised sloppily drafted law as further evidence to the problem facing therapeutic jurisprudence, which highlights the lack of care and attention legislators devote to mental disability. Also identified is the age of legislation still used in action today as sometimes decades, even centuries old. Apathy towards and disinterest in precision and accuracy in terminology reflects the sanist ways that both legislators and judges subordinate mental disability law issues. So why does this matter?
Is history repeating itself?
Mark P. Mostert wrote “useless eaters: disability as genocidal marker in Nazi Germany” in 2002. Mostert’s chilling first sentence states, “the methods used for mass extermination in the Nazi death camps originated and were perfected in earlier used against people with physical, emotional, and intellectual disabilities.” Mostert observed the focus remaining on the extermination of Jews with little attention paid to precipitating events serving as a catalyst to the Holocaust. Societal and scientific perceptions of difference extended to state policy, which was intensified and codified with the rise of national socialism and Hitler's assumption of power in 1933. Notions of difference were first expressed in state sanctioned killings of children and adults with a wide range of physical, emotional and intellectual disabilities. Mostert examines the manipulation of key variables which allowed a highly sophisticated Western society manipulate via state law and policy to sanction and eventually murdered phase with disabilities.
The outbreak of World War I caused social and economic repercussions for Germany. With the need to ration food and provide care and medicine for those injured in the war effort, facilities became overcrowded with high-levels of neglect and deprivation on such ill funded institutes. Today, in a time of austerity the consequences are noticeable on our public services including our National Health Service and the prison services. The reallocation of resources saw a divide between those who were healthy and able to contribute and those who were not. That has been notable with the Conservative government review of disability entitlements in the UK in recent years, which sadly saw many suicides as a result to austerity cuts. In Germany it was seen that extensive and expensive care could not aid Germans economic recovery.
Therefore, inappropriate or undesirable behaviour by those who were disabled were often considered a threat to public decency and social order. Today, we have seen a remarkable compassion for most people of marginalised groups, but still notably reject compassion or empathy towards those with mental illness. This acknowledges that physical differences are frequently met with compassion in today’s public sphere, but hidden illness receives less empathy. Mostert states, inappropriate public behaviour by people with disabilities was often dealt with through legal action and the criminal justice system melding disability and criminality in the public mind. Even in today's society many people go undiagnosed with mental illness due to fear of stigmatisation. Furthermore, in today's society there is huge pressure on the public to conform with social ideologies and with this huge pressure anyone who does not conform is targeted and labelled negatively. Labels such as Nazi, Islamophobic, racist homophobic are often thrown out to shame and ridicule those who do not follow the social order. However, there is currently no label for those who lack empathy for those with disability or mental illness. Why is this?
It is rarely argued in today's society that those who are not conforming to social order might be emotionally incapable of empathising or intellectually ill-equipped to understand these new social orders. Why is this not a consideration? As someone who has suffered a traumatic experience by someone of a different race, I wish to speak publicly about this and warn others. In doing so I risk offending many other people and the law, in its discriminatory, sanist way does not cover me for the trauma which I have suffered and the offence which I might cause.
As discussed in a previous blog post, in his 2014 speech “What’s in a name? Privacy and anonymous speech on the internet.” Lord Neuberger reflects on history, observing the benefits of offensive speech actioned by a political critic who wrote under the pseudonym of Junius. It is important to question whether governments are ordering these crackdowns for their own narcissistic fears of being criticised, or whether it is sincerely concerned for marginalised groups. If it is for concern for these marginalised groups, why have they chosen to discriminate against one particular group? If governments fear history repeating itself, then why are they repeating history? John Stuart Mill was a British philosopher, political economist and civil servant. He was one of the most influential thinkers in the history of liberalism and came up with the harm principle. The basis of the harm principle was considered that as long as no one is harmed, the only justification for interference with other people's freedom would be to prevent harm to others. It is the marginalised groups who argue this and claim that freedom of speech can cause psychological harm.
But as it is raised in this post, it would be harmful to segregate those with mental illness and mental disability from others for fear that their freedom of speech may offend others with the possibility of causing psychological harm. As seen in history, to target and identify marginalised groups, such as those with mental disabilities would be far more harmful than the words they express. In today's society we see more discrimination against those with mental disabilities than any other marginalised group. What is distinctly disturbing, is that this marginalised group receives little protection under the law as it currently stands. This group is once again at the highest risk of being imprisoned for unintentionally offending others and therefore institutionalised.
Governments across the world tell us they are concerned that history is repeating itself. They are right to be concerned, for it is. But as has been seen in the past where governments have been responsible for the discrimination of the mentally ill, today's governments are repeating the exact same patterns. Governments claim to be concerned that history is repeating itself and yet they are ensuring that it does. It is up to us to question why.