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Suppose Person A is accused of an act, which in this case is a hate crime. Person A then points to the actions of Person B, who has committed similar but a more severe form of that action.
This is used by Person A to lessen the severity of their action by referring to Person B.
Ex. Person A has referred to an African American using a derogatory, racist term. When accused as a racist, person A states "Well, Person B has been using this all the time and no one says anything to him/her!"
If the defendant refers to another's behaviour (but more especially to legal decisions on that behaviour), you could say they are justifying theirs by referring to a precedent.
Precedent has a formal legal definition too.
whataboutery mass noun.
British
The technique or practice of responding to an accusation or difficult question by making a counter-accusation or raising a different issue. ‘all too often, well-intentioned debate descends into whataboutery’ Also called whataboutism Origin 1970s: from the way in which counter-accusations may take the form of questions introduced by ‘What about —?’.
— O-D
A deleted post here [edit: it's back, by k1eran], mentioned whataboutism. This, or more generally the tu quoque, is probably the closest of the generally known logical fallacies (collated on Wikipedia). However, those are where the person specifically refers to her opponent's own hypocrisy, not that of a third party.
I would perhaps call this an appeal to inconsistent application of the law, or just an appeal to inconsistency. The person is claiming that the fact that someone else wasn't censured for the same racism justifies his own act. In fact, the reaction of others in a separate incident has no bearing on this one.
In legal terms, such claim is against discriminatory enforcement of the law, and can be grounds for acquittal.
The biased use of enforcement discretion, such as that based on racial prejudice or corruption, is usually considered a legal abuse and a threat to the rule of law. https://en.wikipedia.org/wiki/Selective_enforcement
I think that, as previously suggested, whataboutism or tu quoque is the proper name, but if you're looking for something a little more informal to describe what's happening, perhaps deflection is what you're looking for?
VERB
- [with object, and usually with adverbial of direction] Cause (something) to change direction; turn aside from a straight course.
‘the bullet was deflected harmlessly into the ceiling’
[figurative] ‘he attempted to deflect attention away from his private life’
(Emphasis mine.)
