Microaggression: impact, intent and the law
In our current cultural climate, there’s a conflict between people who value free speech and people who value political correctness to avoid “micro-aggressions”. Laws can be passed which protect one over the other. It’s a balance. Our ideal is to preserve free speech while minimizing micro-aggressions.
Here’s the conflict:
Free speech is important, impact is not. I can’t be expected to read someone’s mind and anticipate their reactions. Others should just grow up and let me say what I want.
Impact is important, intent is not. What’s the use of free speech if it is hurtful and incites violence? What good is good intentions if they result in bad impact? The road to hell is paved with good intentions.
Many social discourses are presented as simplified, polarized opposites: totally right or totally wrong. We then become adversarial, like boxers slugging it out in a ring, or lawyers fighting it out in court, itching to prove the other wrong. But maybe “Impact vs Intent” is a false dichotomy. Maybe they’re both important. To explore this possibility, we’ll take a small journey into law, and the justice principle of Mens Rea. But first, some important background in micro-aggression.
Micro-aggression
This term “micro-aggression” was introduced in the sixties by African-American Harvard psychiatrist, Dr Chester Pierce. It describe the many small offenses people of colour were called upon to endure and still are.[i] It stands in contrast to the violence of “macro-aggressions” which include murder. Needless to say, all of society stands against macro-aggressions.
An adverse impact, if you like is a micro-aggression. The current debate centres around how much free speech to give up to reduce micro-aggressions versus look how far we have actually come in curbing micro-aggressions since the 1960s and before. These questions have not been resolved. In the free speech debate, intent and impact become apparent opposites. But are they? Criminal law may help us understand things a little deeper.
Criminal Intent and Impact
Let’s consider the evidence, the basics, the legal principle of Mens Rea. Mens is Latin for “mind” and Rea is “can be accused.” So Mens Rea is “a mind that can be accused” or “a mind with criminal intent”; a guilty mind; a mind wanting to do harm. (You get the picture.)
Having criminal intent or not, for instance, is the difference between murder and a terrible accident. If a pedestrian randomly gets knocked down and killed by a car, this is a terrible accident. But if the person killed was blackmailing the driver who was embezzling funds, you may suspect the driver had Mens Rea, criminal intent; maybe he wanted to kill the pedestrian. That’s for a court to decide.
Murder or accident? In a court of law, intent is very important.
Suppose the driver decided to kill his blackmailer by pumping him full of bullets instead. Say he succeeded. That’s murder. But say he missed with every shot. That’s attempted murder. The impact is different so the punishment is different.
Murder or attempted murder? In a court of law, impact is very important.
So, according to basic law principles, both intent and impact are very important. They are not polar opposites, they are separate issues worthy of separate consideration.
The truth, the whole truth and nothing but the truth
We humans have the ability to lie (I’m sure you’ve noticed) and we all use this ability to some degree. In court, people swear to tell the truth, the whole truth, and nothing but the truth. Still, lying in court abounds and it seems to be accepted:
I have never seen a major trial which lacked significant perjury, and I have yet to see that perjury punished. (F. Lee Bailey)
When it comes to a claim of good intent, it’s difficult to know the truth. We all have a need to ‘save face’ and appear guiltless. For this and other reasons, we choose to lie. Our intent may not be as innocent as we profess it to be.
The trust of the innocent is the liar’s most useful tool. (Stephen King)
In the face of this, working out a person’s intent is always difficult. More of a problem, however, is the presence of our psychological “blind spots” or “unconscious biases”. It’s human nature to hide our darker intentions: racism, sexual desire, greed, selfishness, a lust for vengeance, and more. We may even deny the reality of these to ourselves (that’s the “blind” and “unconscious” part of our “spots” and “biases”). In conversation, however, our true desires may accidentally slip out for others to notice.
Lying to ourselves is more deeply ingrained than lying to others. (Dostoevsky)
We each have a keen sense of truth and justice; most of us want things to be fair. So much so that
Justice should not only be done, but should manifestly and undoubtedly be seen to be done. (Lord Hewart)
Lying and hidden agendas, however, seem to be so much part of life that now, perhaps, we need to strive so that
Justice should not only be seen to be done, but it should actually be done as well. (Dr Christian Heim)
Application
There is a way out of this mess. Listen to the impact your words have on other people. If they have a bad impact, it doesn’t help to blame them: that will only put you into conflict and trying to prove things you cannot prove about your intent. You’ll go round in circles trying to justify yourself.
They can’t be wrong about their feelings. If they say your words hurt, listen and apologize, even if your intentions were impeccable: I’m sorry if my words caused you stress. That was not my intent. This shows you care. If you don’t apologize it shows that you don’t care.
To apologize you may need to swallow some pride, but it’s usually worth it. If your aim is a good relationship with another person, an apology for unintended hurt always helps. State and restate your good intention, and care about how other person feels. With this, you’ll move forward.
You’ll never go wrong when you LISTEN and APOLOGIZE.
Build bridges of trust rather than walls of distrust.
Aim for good ‘feelings underneath’.
Take Care
Dr Christian Heim
So is it about “Us and Them” and why is it al so polarised? How do we get through this? Watch our YT video as Drs Christian and Caroline Heim explain:
[i] Wells, Catharine. "Micro-aggressions: What they are and why they matter." Tex. Hisp. JL & Pol'y 24 (2017): 61.