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Legislating for Hate Crime Globally: Putting “Social Justice” Into Practice, Part 1

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Criminalising Hate

Part of the book series: Palgrave Hate Studies ((PAHS))

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Abstract

Understanding why states ought to criminalise hate crimes and who should be protected by law is fundamental to determining how legislation should be enacted. If legislatures are to truly address the harms of hate crime it is incumbent upon them to devise laws that adequately reflect its distinct wrongfulness. As such, effectively challenging hate, and its egregious harms, requires laws that are constructed in ways that make their application both expeditious and impactful in preventing hate. Without careful deliberation on how such laws should be prescribed there is a risk that statute books will be left to gather dust. Indeed, where hate crime laws are enacted but rarely applied, the symbolic and practical utility of the criminal law will be lost.

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Notes

  1. 1.

    “Type” refers to area of law and way in which legislation is enacted (e.g. criminal law versus sentencing provisions), while “model” refers to the manner (e.g. legal tests used) in which the legislation proscribes hate-based conduct. See Appendix A. Models are examined in Chap. 6.

  2. 2.

    Many jurisdictions provide English language versions of statutes/codes, while the OSCE website https://www.legislationline.org/ also provides for many English translations of legislation. Further checks for updated versions of laws listed on this website were carried out via parliamentary websites.

  3. 3.

    Excluding Antarctica.

  4. 4.

    Note that gender-based crimes were only included in the study where an offence specified an element of animus (e.g. gender hostility or misogyny) or where a provision specified that the offence was committed by reason of sex/gender/gender identity.

  5. 5.

    Though it should be noted that the drawing of swastikas is not an objective expression of hate, much depends on the context and way it is drawn; as per its use in Hinduism, for example, where it is often used in decoration as part of Diwali.

  6. 6.

    https://www.osce.org/odihr/what-we-do, accessed 4 December 2021.

  7. 7.

    OSCE/ODIHR, Hate Crime Laws: A Practical Guide (OSCE/ODIHR 2009); OSCE, Ministerial Council Decision No. 4/03 (OSCE December 2003).

  8. 8.

    Kay Goodall, ‘Conceptualising “racism” in criminal law’ (2013) 33 LS 215, 216); see also Piotr Godzisz, ‘The Europeanization of anti-LGBT hate crime laws in the Western Balkans’ (2019) 71 Crime Law Social Ch 291.

  9. 9.

    Recommended to Macedonia, Godzisz 2019 (ibid.).

  10. 10.

    A sample of these is set out in Appendix A.

  11. 11.

    See Appendix A. Note that other scholars have applied slightly different categories based on analyses of either a single jurisdiction or small number of countries, see for example Gail Mason, ‘Hate crime laws in Australia: are they achieving their goals?’ (2009) 33(6) Crim LJ 326; James B Jacobs and Kimberly Potter, Hate Crimes: Criminal Law and Identity Politics (OUP 1998) ch 3, who categorise statutes into four types: sentence enhancements, substantive crimes, civil rights statutes and reporting statutes; Lawrence who divides statutes into two categories, “pure bias crimes” and “penalty-enhancement laws”, Frederick M Lawrence, Punishing Hate: Bias Crimes under American Law (Harvard UP 1999) 92; and the OSCE guide which similarly asserts that there are two types, “substantive offences and “penalty enhancement provisions”, OSCE/ODIHR 2009 (see Footnote 7).

  12. 12.

    Explained more fully below under 2.2.

  13. 13.

    See Crime and Disorder Act 1998 (UK), s 30.

  14. 14.

    Criminal Code (Bosnia and Herzegovina), art 156.

  15. 15.

    Criminal Code (Sint Maarten), art 157.

  16. 16.

    See for example Crimes Act 2011 (Gibraltar), Part 7.

  17. 17.

    See for example the offence of “Aggravated physical assault” under art 272, Criminal Code (Norway) and “Aggravated assault (serious bodily harm)” under art 145, Criminal Code (Spain).

  18. 18.

    See for example New York “aggravated harassment”, NY Penal Law §240.30(3).

  19. 19.

    Stat. tit. 21 § 850.

  20. 20.

    Many following the ADL Model of hate crime legislation, see Jacobs and Potter 1998 (see Footnote 11) 33–36.

  21. 21.

    Criminal Code (France), art 222-13.

  22. 22.

    Criminal Code (Hungary), art 216(2).

  23. 23.

    Criminal Code (Armenia) art 112(12).

  24. 24.

    Akin to penalty enhancements provisions cited above that apply to specific offences only, for example Wis Stat § 939.645.

  25. 25.

    It is, though, the weakest sub-type of substantive offences in terms of “fair labelling”.

  26. 26.

    Gardner and Shute explain that the wrong of rape is that it amounts to the “sheer use of a person… and… the objectification of a person… is literally dehumanizing”. John Gardner and Stephen Shute, ‘The Wrongness of Rape’ in Jeremy Horder (ed), Oxford Essays in Jurisprudence, Fourth Series (OUP, 2000) 205.

  27. 27.

    See for example Serious Crime Act 2015, s 76 (England and Wales).

  28. 28.

    As is used, for example, under The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249; see also NY Penal Law § 485.05.

  29. 29.

    See for example Oregon, Or Rev Stat § 166.155.

  30. 30.

    See for example Hate Crime and Public Order (Scotland) Act 2021, s 1.

  31. 31.

    As used in Criminal Code (Bulgaria), Ch 3, s 1.

  32. 32.

    Mark Walters, Susann Wiedlitzka and Abenaa Owusu-Bempah, Hate Crime and the Legal Process: Options for Law Reform (University of Sussex 2017).

  33. 33.

    For a list of indicators see Walters and others 2017 (ibid.) 80 and OSCE/ODIHR, Hate Crime Laws: A Practical Guide (OSCE/ODIHR 2009) 47–48.

  34. 34.

    See Walters and others 2017 (see Footnote 32); Jennifer Schweppe, Amanda Haynes and Mark A Walters, Lifecycle of a Hate Crime: Comparative Report (ICCL 2018).

  35. 35.

    In a recent review of hate crime laws by the Law Commission for England and Wales the Commission outlines a further list of potential offences that could be reclassified as “aggravated”, Law Commission, Hate Crime Laws: A Consultation Paper (Law Com CP No 250, 2020); however they do not recommend further inclusion in their final report, Law Commission, Hate Crime Laws: Final Report (Law Com No 402, 2021).

  36. 36.

    Via the Sentencing Act 2020, s 66, outlined further below.

  37. 37.

    A further disadvantage is this dual system can give rise to what is referred to as “double-counting”, whereby a hate-element is counted for the substantive offence and then is uplifted again where a judge has erroneously referred to the sentencing provisions as well, see Mark A Walters, Abenaa Owusu-Bempah and Susann Wiedlitzka, ‘Hate Crime and the “Justice Gap”: The Case for Law Reform’ [2019] 12 Crim LR 961.

  38. 38.

    Most prominently in European jurisdictions, see Erik Bleich, ‘From Race to Hate: A Historical Perspective’ in Thomas Brudholm and Birgitte S Johansen (eds), Hate, Politics, Law (OUP 2018) 15–33; for an analysis of the different arguments for and against criminalising hate speech see, Alexander Brown, Hate Speech Law A Philosophical Examination (Routledge 2015).

  39. 39.

    See Jennifer Schweppe, ‘What is a hate crime?’ (2021) 7(1) Cogent Social Sciences, DOI: 10.1080/23311886.2021.1902643.

  40. 40.

    John L Austin, How to Do Things with Words (Clarendon 1962. In the US context sometimes referred to as “fighting words”, understood in terms of those words that cause a direct harm to someone or immediate disturbance, Chaplinsky v New Hampshire 315 US 568 (1942).

  41. 41.

    Schweppe refers to these as “liminal offences” which she argues are neither hate speech offences nor “do they follow the pattern of standard legislative means of addressing hate crime”. Schweppe 2021 (see Footnote 39) 9.

  42. 42.

    Public Order Act 1986, s 5.

  43. 43.

    Crime and Disorder Act 1998, s 31(1)(c).

  44. 44.

    See for example Hammond v DPP [2004] EWHC 69 (Admin).

  45. 45.

    Schweppe 2021 n 528).

  46. 46.

    Though see FN 10.

  47. 47.

    Violent Interference with Federally Protected Rights, or Title I of the Civil Rights Act of 1968 § 245.

  48. 48.

    California Penal Code § 422.6.

  49. 49.

    See similarly, Criminal Code (Sint Maarten), art 2:63. See also International Convention on the Elimination of All Forms of Racial Discrimination, Article 4(b) “[State Parties] shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law”.

  50. 50.

    See also Criminal Code (Mali), art 179. Similarly, various jurisdictions criminalise service or workplace discrimination, for instance in Switzerland it is a criminal offence to refuse to provide a service to another on the grounds of a person’s race, ethnic origin, religion or sexual orientation, when that service is intended to be provided to the general public, Criminal Code (Switzerland), art 261 bis.

  51. 51.

    Schweppe 2021 (see Footnote 39) 7; see also Lawrence 1999 (see Footnote 11) 58.

  52. 52.

    Walters, Wiedlitzka and Owusu-Bempah 2017 (see Footnote 32).

  53. 53.

    Adoption of new hate crime laws has been supported by the EU’s Fundamental Rights Agency and the Council of Europe’s European Commission against Racism and Intolerance (ECRI) both played key roles in promoting hate crime legislation. See Aleš Gião Hanek, ‘International Legal Framework for Hate Crime: Which Law for the “New” Countries?’ in Amanda Haynes, Jennifer Schweppe and Seamus Taylor, Critical Perspectives on Hate Crime: Contributions from the Island of Ireland (Palgrave 2020) 467–292. The European Court of Human Rights has also played a significant role in ensuring member states identify and recognised through legislative provisions, see for example Angelova and Iliev v Bulgaria App no 55523/00 (ECtHR, 26 July 2007).

  54. 54.

    Hanek 2020 (ibid.) 476.

  55. 55.

    See OHCHR (2013) Concluding Observation of the CERD on Ireland, 78th Session, 2011; ECRI General Policy Recommendation No. 7 on National Legislation to Combat Racism and Racial Discrimination, both cited in Hanek 2020 (see Footnote 53) 477.

  56. 56.

    See for example assault sentencing guidelines for England & Wales <https://www.sentencingcouncil.org.uk/wp-content/uploads/Assault_definitive_guideline_-_Crown_Court.pdf> accessed 4 December 2021.

  57. 57.

    Sentencing Act 2020 (UK), s 66.

  58. 58.

    See for example United States Sentencing Commission, Guidelines Manual 2018 324 for reference to use of “preponderance of evidence” as a standard of proof for certain sentencing matters.

  59. 59.

    See similarly, Canada’s Criminal Code, where at s. 718(2)(a) it states:

    [...] a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender

    [...] evidence that the offence was motivated by bias, prejudice or hate based on [...] sexual orientation, or gender identity or expression [...] shall be deemed to be aggravating circumstances.

  60. 60.

    Walters, Wiedlitzka and Owusu-Bempah 2017 (see Footnote 32).

  61. 61.

    It was suggested that crimes motivated by identity-based hostility would attract a greater level of enhancement compared with cases where hostility was demonstrated during the commission of the offence (often in the heat of the moment). However, even here some judges noted that they would apply the same level of enhancement regardless of motivation or demonstration: Walters, Wiedlitzka and Owusu-Bempah 2017 (see Footnote 32).

  62. 62.

    Walters, Wiedlitzka and Owusu-Bempah 2017 (see Footnote 32) 148.

  63. 63.

    Walters, Wiedlitzka and Owusu-Bempah 2017 (see Footnote 32) 148.

  64. 64.

    Compared to 10 to 16 years without the hate-element, art 122.

  65. 65.

    See next section below.

  66. 66.

    And which will often be considered at a lower standard of proof.

  67. 67.

    Walters, Wiedlitzka and Owusu-Bempah 2017 (see Footnote 32). A similar issue has arisen in Northern Ireland, see Desmond Marrinan, Hate Crime Legislation in Northern Ireland: Independent Review (NI Dept of Justice 2020) 59.

  68. 68.

    Or a demonstration of hostility as is also permitted in this jurisdiction.

  69. 69.

    Walters, Wiedlitzka and Owusu-Bempah 2017 (see Footnote 32), 159.

  70. 70.

    Jennifer Schweppe, Amanda Haynes and Mark A Walters, Lifecycle of a Hate Crime: Comparative Report (ICCL 2018) 74–75.

  71. 71.

    See Aleš Gião Hanek, ‘International Legal Framework for Hate Crime: Which Law for the “New” Countries?’ in Amanda Haynes, Jennifer Schweppe and Seamus Taylor, Critical Perspectives on Hate Crime: Contributions from the Island of Ireland (Palgrave 2020) 467–292, 480.

  72. 72.

    What Gail Mason refers to as the ‘Penalty Enhancement Model’, which she distinguishes from the “Sentence Aggravation Model”: Mason 2009 (see Footnote 11). While I do separate these models into sub-categories I do not categorise each as a separate “type” of legislation; this is because ultimately both provide similar powers to judges that relate only to sentencing.

  73. 73.

    Criminal Code (France), art 132-76.

  74. 74.

    See for example Apprendi v New Jersey (99–478) 530 US 466 (2000).

  75. 75.

    See James Chalmers, ‘Frenzied Law Making’: Overcriminalization by Numbers’ (2014) 67(1) CLP 483.

  76. 76.

    For example property offences and sexual offences, see Walters, Wiedlitzka and Owusu-Bempah 2017 (see Footnote 32).

  77. 77.

    Though this also depends on a myriad of other structural, political and resource-based factors, see Jennifer Schweppe and Mark Walters, Establishing a Framework for Implementation of Anti-LGBT Hate Crime Legislation (Human Dignity Trust 2022).

  78. 78.

    It is for this reason that the Law Commission in England and Wales rejected this proposed model in their final report on hate crime laws, Law Commission (2021) (see Footnote 35) 317.

  79. 79.

    While this approach ensures that higher penalties are maintained for hate crimes, it must be emphasised that the state’s focus on enhancing punitive sentences is likely to do little to advance the social justice that hate crime laws could help to achieve. In Chap. 7 I examine in greater detail how a social justice liberal approach to legislation could be framed more centrally around restorative responses to hate crime, while being backed only by threatened punishment that would be used only as a measure of last resort.

  80. 80.

    Lawrence 1999 (see Footnote 11) 170.

  81. 81.

    Hanek 2020 (see Footnote 71); Joanna Perry, ‘The migration and integration of the hate crime approach in India’ (2020) 11(1) Jindal Global Law Rev 7.

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    Mark Austin Walters

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Walters, M.A. (2022). Legislating for Hate Crime Globally: Putting “Social Justice” Into Practice, Part 1. In: Criminalising Hate. Palgrave Hate Studies. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-08125-5_5

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