Warning: Mention of suicide, self-harm and fatal violence against women.

For all the time we spend talking about freedom of speech, we never seem to reach any definitive conclusions. We are yet to establish where the boundary between hate speech and freedom of expression truly lies; something that often produces more questions than answers.

When such debates arise — usually in response to a news story or high-profile gaffe — we tend to focus on slander, libel, and defamation issues. We also think deeply about which individual words are acceptable. Questions crop up as to whether certain words are truly vessels for hatred; if their usage was simply misunderstood; or if, by a natural change in the linguistic temporal continuum (how language changes over time), they were accidently misused. I am, of course, speaking about the everyday blunders that most of us innocently commit without malice, but that sometimes end up causing offence anyway.

‘If you don’t pass, there is always suicide.’

Comedians often get a raw deal when it comes to exercising their free speech rights. Kate Smurthwaite receives so much online abuse that she’s managed to dedicate entire stand-up sets to this outpouring of social discontent. The written commands to hurt herself (which I’m not going to repeat), count under the Malicious Communications Act. If that’s the case, why don’t we think of the spoken equivalent in the same way? This is particularly bizarre since harmful instruction would count as malicious communication if delivered electronically; via a voice note, for example.

When I was about to sit my GCSEs, I was told at a school prize giving, ‘If you don’t pass, there is always suicide.’ I count my lucky stars that my parents told me to ignore this individual. What if those words had fallen on the ears of someone who took the phrase to heart? Someone whose parents did not immediately dismiss the comment? And what if they had reached the ears of somebody who failed and, despairing, acted upon the humorous advice? It doesn’t bear thinking about, but I can’t help doing so every Suicide Prevention Day in September. Just because commands to carry out harmful and damaging actions may not carry serious intent, they can still be very distressing to certain types of people.

Replicable depictions of harm are largely considered problematic in the media. Films or music that show or describe drugs and violence leave us concerned that someone may try and imitate this behaviour. The possibility of imitation (imitable techniques),  is enough to earn a film a higher age certificate or a song a ‘Parental Advisory: Explicit Lyrics’ label. A 15 film certificate warns that: ‘dangerous combat techniques such as ear claps, head-butts and blows to the neck are unlikely to be acceptable. There may be no emphasis on the use of easily accessible lethal weapons (in particular, knives).’ In films rated 12 or 12A, imitable techniques include ‘combat, hanging, suicide and self-harming,’ and should not be dwelled on, or glamorised in any way.

Films are certified by age precisely because we consider the possible effects on the mindset of those watching the material. And yet, the possible vulnerability and sensitivity of a person receiving questionable verbal instructions does not figure in the law. Instead, the focus is entirely on the motivation for saying what was said. Even though verbal communication is usually the primary form of social exchange, it’s rather ironic that the law ignores how one person may perceive and process the language instructions of another.

What About Highly Sensitive People?

Saying things that could lead someone to commit self-harm counts as coercive control, but only under certain circumstances. Someone is only guilty of this offence if, ‘they repeatedly or continuously engage in behaviour towards you that is coercive or controlling and they know or ought to know that the behaviour will have a serious effect on you’ (my emphasis).

It’s safe to assume that the ‘you’ here refers to people of average neurotypical sensitivity. Those, however, who are most likely to feel the adverse effects of thoughtless instruction are simply ignored. This is a mistake. Highly Sensitive People are thought to account for 15-20 per cent of the general population. The quality of being a Highly Sensitive Person is thought to result from an increased central nervous system sensitivity. One instance of giving a harmful command may not distress a neurotypical person but can leave an HSP traumatised because they are ‘more easily offended’ and ‘experience negative feelings more strongly and deeply.’ For a crime to have been committed, the person delivering harmful instruction must have been aware of the potential consequences. This leaves HSPs vulnerable to damaging commands (whether intentional or not), given by complete strangers. Since HSPs reflect on information more deeply, they are more likely to dwell on abusive instructions and become traumatised, as well as be persuaded to act on them.

If the word ‘gaslighting’ springs to mind, you’re on the right track. This form of emotional abuse often goes ‘hand in hand by default‘ with HSPs. Solace Women’s Aid describes gaslighting as ‘psychologically manipulating someone to make them doubt their sanity.’ Since HSPs ‘tend to be more likely to question themselves,’ they are especially vulnerable to this form of abuse and more likely to be led to self-harm by an abuser. Insensitive throwaway remarks about harming oneself, however blasé or unintended, may distress or have severe consequences for an HSP. The law can do little in this case, given that its primary subject of concern is a neurotypical person.

The Law Must Encompass Everyone

Without provable intent, you cannot charge someone for saying things that led a person to self-harm. HSPs that are most vulnerable to unintentional harm are therefore overlooked by the very laws urgently needed to protect them. This is especially unfortunate given the increasing cases of gaslighting in the UK. When the responsibility of ensuring nothing comes of harmful speech rests wholly on the receiver, those who cannot protect themselves fall victim to a gap in the law. HSPs are effectively being asked not to become affected by something that will very likely affect them.

The legitimate, ‘but then somebody might try and do that’ imitation concern does not mean we must tip-toe around everything because somebody may be persuaded to do something. Rather, perhaps we should all learn to be a little more careful with our words, and a little more thoughtful. It is not always possible to know who is listening or the impact our words may have. If, when taken literally, your words could cause harm, perhaps they should not be uttered. Presently, those who most require protection from the law are being overlooked. If #BeKind simply means not instructing or ‘advising’ self-destructive behaviour, then I’m all for it.

Don’t knock yourself out.

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