09.10.17

WTF? – Can I be charged for swearing?


WTF? – Can I be charged for swearing?

[This article contains coarse language]

Teenagers do it. Workmates do it. Your spouse does it. You do it. Hell, even your grandmother has surely sworn from time to time. So, you may ask yourself WTF is wrong with swearing? In fact, on the international scene, Australians are known for our potty mouths and blase uses of words that would make most foreigners blush. Considering our foul-mouthed reputation, most Australians would be surprised to know that we have laws banning the use of swear words.

Historically, in Victorian times, the use of profanity was considered too harsh for the delicate sensibilities of women and children. As a result, laws were enacted across Australia making it a criminal offence to use offensive, obscene, indecent or abusive language in or within hearing distance of a public place or school.

You would think that these anti-swearing laws are archaic remnants from the past that have little relevance today. Think again. Reports show that people can and do continue to get charged for swearing. As recently as 2013, NSW police recorded more than 4,000 offensive language incidents.

What is the penalty for swearing?

If you use profane or abusive language, you could be fined or even imprisoned under our offensive language laws. The maximum penalty for using words that are deemed offensive in NSW is $660. In South Australia, the laws are considerably harsher with the maximum penalty for using abusive or insulting language in public ringing in at $1,250 or three months’ imprisonment.

But what or who decides what is indecent or offensive?

Critics have long argued over this point. As Elyse Methven, a Law Doctoral Student from the University of Technology in Sydney argues, “the law offers little by way of guidance to clarify the meaning of ‘offensive’ language;’ thereby giving police and judges tremendous discretion.”

For example, as Methven highlights, racial epithets in the court room tend to be ignored as offensive language but specific triggering words uttered to police receive penalty. This raises the question: are our language laws just another way to criminalise those already marginalised?

Critics argue that this law is used by police to target and criminalise certain groups of people. For example, an intoxicated and homeless Indigenous woman in Queensland was sentenced to three weeks in prison for saying “you fucking cunt” to a female officer who had asked the woman her name during a 4AM patrol in Brisbane’s inner city. A high court judge on the case rationalised the charge by saying: “Despite equal opportunity, perhaps even today the fact that those words were said to a woman might provoke a physical response on the part of men who were also present.” (Source: Guardian.com).

Conversely, when a bunch of footballers in a pub joke around trading similarly course language, no one bats an eye – it is considered boys being boys engaging in typical Australian banter.

Methven also highlights how the law is unfairly prejudiced against Aboriginal people, the homeless community or the mentally ill as they are “statistically much more likely to be the subject of offensive language charges.” For example, according to a review by the NSW Ombudsman, between November 2007 and October 2008 Aboriginal Australians received 14% of offensive language fines even though they make up only 2.1% of the population.

Are we really protecting our children by making swearing illegal?

Our offensive language laws were enacted under the premise that these words were harmful to children and that we need to protect them from words that have harmful, offensive or sexual connotations. But research according to Methven consistently shows that there is little impact from the use of swear words around children.

Anti-swearing laws have been in effect for since Roman times. Like many laws, these were put in place to deter certain behaviours. Have our anti-swearing laws reduced our use of profanity? Fuck no.  Our laws should focus on real statistically relevant harms, such as sexual assault and domestic violence. Instead of worrying about how people choose to express themselves.

Methven suggests we rethink our language laws as there is an inherent problem if a homeless, Indigenous woman can be thrown in jail for swearing in front of a few people but a wealthy, white man who swears on national television in front of thousands of viewers receives no recourse. In line with this, the NSW Law Reform Commission recently recommended that offensive language laws be abolished because although swearing may be offensive, it should not be a criminal offence.