This week, Ealing Council made a landmark legal and political decision: patients entering or leaving the Marie Stopes clinic would be protected from harassment by the creation of a buffer zone, a Public Spaces Protection Order, ensuring that no anti-abortion protesters can set up their signs, hand out their leaflets, or otherwise harass patients seeking treatment.
No such protection has been allowed for patients attending the Marie Stopes clinic in Belfast. Technically, women in Northern Ireland are allowed to have abortions if the pregnancy is life-threatening or in cases of rape, incest, or fatal foetal abnormality. Practically, except for molar and ectopic abortions, until 2012 there was no option for patients to get legal abortions except to travel to England – or Scotland or Wales – and, until 2017, pay for their abortion themselves despite abortion being available on the NHS in the rest of the UK.
A hate crime in the UK can only be identified as such if a crime has been committed. The distinction between the right of free assembly and public protest, and direct harassment, is often difficult for the law to distinguish. I have taken part in demos outside the Russian consulate in Edinburgh against Russia’s government-supported homophobia, on a working day, with consulate staff inside, and been quite well aware that the staff would prefer that we weren’t there. But they had no right to make us go away.
Harassment, in English law, is defined as “repeated attempts to impose unwanted communications and contact upon a victim in a manner that could be expected to cause distress or fear in any reasonable person”. For prosecution, there must be evidence that “the conduct was targeted at an individual, was calculated to alarm or cause him/her distress, and was oppressive and unreasonable.”
Anti-abortion protesters certainly have a right to stand up and say they think that people who need abortions should have to be able to afford to travel to another country or only have them illegally: that safe legal abortion, freely available to anyone who needs it, is profoundly wrong. That’s free speech. We can disagree with it – and the majority of people in Scotland do – but they have a right to stand there and say they think essential reproductive healthcare should be denied women. A midwife who wants to be able to discriminate against patients on her ward depending if they are there for an abortion or not should obviously be transferred off that ward: but that is a matter of discrimination in medical treatment, not free speech.
Where the anti-abortion protesters target individual patients entering or leaving a clinic, is harassment – but the difficulty appears to be that the anti-abortion protesters would and do claim they are not targeting any individual patient, they’re just showing up to tell the world their view of abortion. Outside a clinic which provides abortions, to patients who may be intending to have an abortion or who have just had an abortion. Is this collective harassment? The law doesn’t seem to be sure of that, either.
Meantime, the anti-abortion protesters are indubitably causing distress to patients at a vulnerable time, and furthermore, their declared intent is to make any patient there to have an abortion feel distressed about abortion and to try to close down access to abortion: the same group banned from harassing patients outside the Marie Stopes clinic in Ealing, claims success in shutting own access to abortion at the Marie Stopes clinic in Camden. Ealing Council’s solution of banning them from protesting in that particular area allows the anti-abortion protests to continue, just not where they can cause distress to patients.
Naturally, the anti-abortion protesters claim this is against their free speech rights. Clare McCullough, the founder of the anti-abortion protest group that targets patients attending Marie Stopes clinics, claims that in approaching individual patients to tell them not to have an abortion they are not committing harassment, just “offering alternatives” but also asserts that hundreds of patients have been turned away from an appointment by their protests.
“Harassment is a crime. If we were harassing anyone we would be arrested.”
As a recent case in another area of harassment vs free speech demonstrated, it is not necessarily that easy.
Kellie-Jay Keen Minshull describes herself on Linkedin as “Head of PR at Ministry of Truth plc”. Using the Twitter handle @ThePosieParker, she has for some time now, been posting angry tweets about Susie Green of Mermaids, the UK charity which supports trans children and their parents. Susie Green has a daughter who is trans. Minshull took offence at this, and posted multiple tweets about Susie Green, attacking her personally. This was not, according to Minshull herself, a one-off angry tweet, but multiple tweets over a period of months: October 2016 to August 2017.
Susie Green reported these tweets to the police. The police eventually managed to locate @ThePosieParker under her real name, and summoned Minshull for an interview at a police station.
According to Minshull herself, the police warned her that she might be prosecuted for nuisance, public order, and malicious communications compounded with a potential hate crime. Minshull took legal advice and responded “no comment” when she was asked if she would say these things about Susie Green to her face, but admitted after the interview:
I would, I would say it to her face, I would say it with more words and demand answers. If presented with that woman I would tell her exactly what I think. People that have known me for any length of time would be in no doubt that I do speak out if I see something is unjust. I am that woman, I intervene, I confront, I speak up. I was accused of being transphobic for referring to Janet Mock, an American trans activist who claims prostitution is rite of passage for “trans girls” in their teens, as Mr Mock.
Some people would have reacted to having the police tell them formally that they could be in serious legal trouble for what they’d tweeted about someone, that they had better tone in it down in future. Minshull felt aggrieved: she felt entitled to say what she liked about Susie Green without experiencing any consequences. She set up a Crowdfunder so that her legal fees would be paid for by her supporters if the Crown Prosecution Service decided to bring charges, promising to donate the money to an anti-trans organisation if the CPS didn’t charge her.
The Crown Prosecution Service decided not to charge her, because – as with the anti-abortion activists around the Marie Stopes clinics – there was insufficient evidence that she had approached Susie Green, only that she had made remarks about Susie Green on Twitter.
Crowdfunder, however, took notice of the fact that Minshull was trying to raise money to pay her legal fees in the event of a criminal prosecution, which is against their terms of service, and cancelled her fundraiser.
By the way, this is what Janet Mock actually said about sex work:
A leading factor that makes young trans women of color, like myself, more likely to engage in survival sex work is economic hardship. Family rejection and hostile, unwelcoming school environments can push a trans girl to leave these spaces, and anti-trans bias coupled with racism and misogyny and a lack of education heightens joblessness.
When you’re 16 years old, dreaming of being yourself and you come from a family that is already struggling economically (not to mention dealing with accepting your identity) and you’re faced with the high cost of gender affirmative healthcare, the hurdles are high and overwhelming, and sex work becomes the most appealing, viable, efficient option. At least it was for me.
Discussing free speech, when I was looking for Janet Mock’s comments, I found a video in which she asks the interviewer the same questions the cisgender interviewer planned to ask her: flipping the script. The interviewer admits she hadn’t realised how awful the questions would sound until they were turned round.
The key point about free speech, is that being able to say whatever you like, never means being able to say whatever you like without consequences.
If you are mean and bullying, as anti-abortion activists and anti-trans activists so often are, you may not be committing a crime – the standard of evidence for a criminal prosecution for merely saying something out loud is justly very high – but this doesn’t mean people will think well of you for what you said or did.
[Update: Minshull then transferred her fundraiser to GoFundMe, which evidently doesn’t have the same standards as Crowdfunder, and is now asserting that she will lead a new movement:
There is a sinister and pernicious movement to suppress free speech in the UK. I intend to speak up and stem this tide by starting a campaign focussing on fighting any laws, cases or precedents that attack this right. The right to speak is not partisan, it’s not a privilege, it is a fundamental human right and should exist within every society.
Worth remembering that the “right to speak” Minshull is claiming, is the right to direct insults and abuse to Susie Green, who is offensive to Minshull as a cis woman, CEO of a trans support charity, with a trans daughter.]