In crime and law, hate crimes (also known as bias-motivated crimes) occur when a perpetrator targets a victim because of his or her perceived membership in a certain social group, usually defined by racial group, religion, sexual orientation, disability, class, ethnicity, nationality, age, gender, gender identity, social status or political affiliation.[1]
A hate crime is a legal category used to described bias-motivated violence: "assault, injury, and murder on the basis of certain personal characteristics: different appearance, different color, different nationality, different language, different religion."[2]
"Hate crime" generally refers to criminal acts that are seen to have been motivated by bias against one or more of the types above, or of their derivatives. Incidents may involve physical assault, damage to property, bullying, harassment, verbal abuse or insults, or offensive graffiti or letters (hate mail).[3]
A hate crime law is a law intended to prevent bias-motivated violence. Hate crime laws are distinct from laws against hate speech in that hate crime laws enhance the penalties associated with conduct that is already criminal under other laws, while hate speech laws criminalize speech.
Nazi pogroms started out as locally-sanctioned anti-Jewish activity in the early years of Nazi occupations and eventually reaching its apex in the Final Solution for the Jews.
More recently, ethnic conflicts in Bosnia and Herzegovina and genocide in Rwanda have been described as mass-based hate crimes, but the term "hate crime" did not really begin to be used until after World War II and the end of most major government-sanctioned racial cleansing projects that had been linked with official fascism. The term "hate crime" is now used more often than in the past mainly because the groups that used to have official endorsement under with intergovernmental and/or armed forces involvement.
Concern about hate crimes has become increasingly prominent among policymakers in many nations and at all levels of government in recent years. There have been many examples throughout modern-day Europe by groups who harass and threaten many different racial groups. In the United States, racial and religious biases have inspired most hate crimes.
Hate crimes have a history longer than the US itself with genocide attempted against Native America by the Dutch, French, Spanish, and British colonists and later American citizens for over three centuries. The verb lynching is derived from Charles Lynch, an 18th-century Virginia planter known for leading vigilante actions against Tories including tarring and feathering and hanging. Lynching now thus means execution outside of "ordinary justice" and is associated with weak or nonexistent police authority, like in the Old West, and racism.[2]
As Europeans began to colonize the New World in the 16th and 17th centuries, Native Americans increasingly became the targets of bias-motivated intimidation and violence. During the past two centuries, some of the more typical examples of hate crimes in the U.S. include lynchings of African Americans, cross burnings to drive black families from predominantly white neighborhoods, assaults on white people traveling in predominantly black neighborhoods, assaults on lesbian, gay, bisexual and transgender people, the painting of swastikas on Jewish synagogues and xenophobic responses to a variety of minority ethnic groups.[4]
Examples like the murder of Channon Christian and Christopher Newsom and the Wichita Massacre tend not to be classified as "hate crimes" by U.S. investigative officials, but they have meanwhile been described as "hate crimes against whites by blacks" by right-wing commentators such as David Horowitz (a right-wing author and academic) and Michelle Malkin (a commentator for the Fox News channel and a prolific conservative author). The district attorneys in both these cases have specifically stated that while these incidents were indeed horrible, and had tremendous impacts on the communities affected by them, neither displayed evidence of being black-on-white racism, either upon initial or more in-depth review.
In the United States, racist anti-black bias is the most frequently reported hate crime motivation. African-Americans constitute the second-largest minority group with Hispanics being the largest.[5] Of the nearly 8,000 hate crimes reported to the FBI in 1995, the most frequently reported motivation was bias against blacks, almost 3,000.[6] Other frequently reported bias motivations were anti-white, anti-Jewish, anti-Gay, anti-Muslim, anti-Asian, anti-Native American, and anti-Hispanic.[6]
From a psychological standpoint, hate crimes may have extreme consequences. A manual issued by the Attorney-General of the Province of Ontario in Canada lists the following consequences:[7]
Hate crime laws generally fall into one of several categories:
Since 2002, with an amendment to the Convention on Cybercrime, the European Union mandates individual states to punish as a crime hate speech done through the internet.[9]
Discriminatory acts constituting harassment or infringement of a person's dignity on the basis of origin, citizenship, race, religion, or sex (Penal Code Article 313). Courts have cited bias-based motivation in delivering sentences, but there is no explicit penalty enhancement provision in the Criminal Code. The government does not track hate crime statistics, although they are relatively rare.[8]
Armenia has a penalty-enhancement statute for crimes with ethnic, racial, or religious motives (Criminal Code Article 63).[8]
Austria has a penalty-enhancement statute for crimes with racist or xenophobic motivation (Penal Code section 33(5)).[8]
Azerbaijan has a penalty-enhancement statute for crimes motivated by racial, national, or religious hatred (Criminal Code Article 61). Murder and infliction of serious bodily injury motivated by racial, religious, national, or ethnic intolerance are distinct crimes (Article 111).[8]
Belarus has a penalty-enhancement statute for crimes motivated by racial, national, and religious hatred and discord.[8][10]
Belgium's Act of 25 February 2003 ("aimed at combating discrimination and modifying the Act of 15 February 1993 which establishes the Centre for Equal Opportunities and the Fight against Racism") establishes a penalty-enhancement for crimes involving discrimination on the basis of sex, supposed race, color, descent, national or ethnic origin, sexual orientation, civil status, birth, fortune, age, religious or philosophical beliefs, current or future state of health and handicap or physical features. The Act also "provides for a civil remedy to address discrimination."[8] The Act, along with the Act of 20 January 2003 ("on strengthening legislation against racism"), requires the Centre to collect and publish statistical data on racism and discriminatory crimes.[8]
The Criminal Code of Bosnia and Herzegovina (enacted 2003) "contains provisions prohibiting discrimination by public officials on grounds, inter alia, of race, skin colour, national or ethnic background, religion and language and prohibiting the restriction by public officials of the language rights of the citizens in their relations with the authorities (Article 145/1 and 145/2)."[11]
Bulgarian criminal law prohibits certain crimes motivated by racism and xenophobia, but a 1999 report by the European Commission against Racism and Intolerance found that it does not appear that those provisions "have ever resulted in convictions before the courts in Bulgaria."[12]
Croatian Penal code explicitly defines hate crime in article 89 as "any crime committed out of hatred for someones race, skin color, sex, sexual orientation, language, religion, political or other belief, national or social background, asset, birth, education, social condition, age, health condition or other attribute".[13] On 1 January 2013 new Penal code will be introduced with the recognition of a hate crime based on a "race, skin color, religion, national or ethnic background, sexual orientation or gender identity".[14]
"The Czech Criminal Code defines racist motivation as a specific aggravating circumstance that judges are required to take into account in sentencing, as well as defining specific racist acts as crimes. Section 196 punishes 'violence against a group of inhabitants and against individuals on the basis of race, nationality, political conviction or religion.'"[8]
Although Danish law does not include explicit hate crime provisions, "section 80(1) of the Criminal Code instructs courts to take into account the gravity of the offence and the offender's motive when meting out penalty, and therefore to attach importance to the racist motive of crimes in determining sentence."[15] In recent years judges have used this provision to increase sentences on the basis of racist motives.[8][16]
Since 1992, the Danish Civil Security Service (PET) has released statistics on crimes with apparent racist motivation.[8]
Finnish Criminal Code 515/2003 (enacted January 31, 2003) makes "committing a crime against a person, because of his national, racial, ethnical or equivalent group" an aggravating circumstance in sentencing.[8][17] In addition, ethnic agitation (Finnish: kiihotus kansanryhmää vastaan) is criminalized and carries a fine or a prison sentence of not more than two years. The prosecution need not prove that an actual danger to an ethnic group is caused but only that malicious message is emissioned. A more aggravated hate crime, warmongering (Finnish: sotaan yllyttäminen), carries a prison sentence of one to ten years. However, in case of warmongering, the prosecution must prove an overt act that evidently increases the risk that Finland is involved in a war or becomes a target for a military operation. The act in question may consist of
In 2003, France enacted penalty-enhancement hate crime laws for crimes motivated by bias against the victim's actual or perceived ethnicity, nation, race, religion, or sexual orientation. The penalties for murder were raised from 30 years (for non-hate crimes) to life imprisonment (for hate crimes), and the penalties for violent attacks leading to permanent disability were raised from 10 years (for non-hate crimes) to 15 years (for hate crimes).[8][19]
"There is no general provision in Georgian law for racist motivation to be considered an aggravating circumstance in prosecutions of ordinary offenses. Certain crimes involving racist motivation are, however, defined as specific offenses in the Georgian Criminal Code of 1999, including murder motivated by racial, religious, national or ethnic intolerance (article 109); infliction of serious injuries motivated by racial, religious, national or ethnic intolerance (article 117); and torture motivated by racial, religious, national or ethnic intolerance (article 126). ECRI reported no knowledge of cases in which this law has been enforced. There is no systematic monitoring or data collection on discrimination in Georgia."[8]
The German Criminal Code does not have hate crime legislation, but instead criminalizes hate speech under a number of different laws, including Volksverhetzung. In the German legal framework motivation is not taken into account while identifying the element of the offence. However, within the sentencing procedure the judge can define certain principles for determining punishment. In section 46 of the German Criminal Code it is stated that "the motives and aims of the perpetrator; the state of mind reflected in the act and the wilfulness involved in its commission."[20] can be taken into consideration when determining the punishment; under this statute, hate and bias have been taken into consideration in sentencing in past cases.[21]
Hate crimes are not specifically tracked by German police, but have been studied separately: a recently published EU "Report on Racism" finds that racially motivated attacks are frequent in Germany, identifying 18142 incidences for 2006, of which 17597 were motivated by right wing ideologies, both about a 14% year-by-year increase.[22] Relative to the size of the population, this represents an eightfold higher rate of hate crimes than reported in the US during the same period.[23] Awareness of hate crimes and right-wing extremism in Germany remains low.[24]
Article Law 927/1979 "Section 1,1 penalises incitement to discrimination, hatred or violence towards individuals or groups because of their racial, national or religious origin, through public written or oral expressions; Section 1,2 prohibits the establishment of, and membership in, organisations which organise propaganda and activities aimed at racial discrimination; Section 2 punishes public expression of offensive ideas; Section 3 penalises the act of refusing, in the exercise of one’s occupation, to sell a commodity or to supply a service on racial grounds."[25] Public prosecutors may press charges even if the victim does not file a complaint. However, as of 2003, no convictions had been attained under the law.[26]
Violent action, cruelty, and coercion by threat made on the basis of the victim's actual or perceived national, ethnic, religious status or membership in a particular social group are punishable under article 174/B of the Hungarian Criminal Code.[8]
Section 233a of the Icelandic Penal Code states "Anyone who in a ridiculing, slanderous, insulting, threatening or any other manner publicly abuses a person or a group of people on the basis of their nationality, skin colour, race, religion or sexual orientation, shall be fined or jailed for up to two years."[27]
The Iranian constitution, article 14 states: "In accordance with the sacred verse 'God does not forbid you to deal kindly and justly with those who have not fought against you because of your religion and who have not expelled you from your homes' [60:8], the government of the Islamic Republic of Iran and all Muslims are duty-bound to treat non-Muslims in conformity with ethical norms and the principles of Islamic justice and equity, and to respect their human rights. This principle applies to all who refrain from engaging in conspiracy or activity against Islam and the Islamic Republic of Iran."[28]
"The Prohibition of Incitement to Hatred Act 1989" makes it an offense to incite hatred against any group of persons on account of their race, color, nationality, religion, sexual orientation, ethnic or national origins, or membership of the Traveller community, an indigenous minority group."[8]
Ireland does not systematically collect hate crime data.[8]
Italian criminal law, at Section 3 of Law No. 205/1993, the so-called Legge Mancino (Mancino law), contains a penalty-enhancement provision for all crimes motived by racial, ethnic, national, or religious bias.[8]
In Kazakhstan, there are constitutional provisions prohibiting propaganda promoting racial or ethnic superiority.[8]
In Kyrgyzstan, "the Constitution of the State party prohibits any kind of discrimination on grounds of origin, sex, race, nationality, language, faith, political or religious convictions or any other personal or social trait or circumstance, and that the prohibition against racial discrimination is also included in other legislation, such as the Civil, Penal and Labour Codes."[29]
Article 299 of the Criminal Code defines incitement to national, racist, or religious hatred as a specific offense. This article has been used in political trials of suspected members of the banned organization Hizb-ut-Tahrir.[8][30]
Article 22(4) of the Spanish Penal Code includes a penalty-enhancement provision for crimes motivated by bias against the victim's ideology, beliefs, religion, ethnicity, race, nationality, gender, sexual orientation, illness, or disability.[8]
Article 29 of the Swedish Penal Code includes a penalty-enhancement provision for crimes motivated by bias against the victim's race, color, nationality, ethnicity, sexual orientation, religion, or "other circumstance" of the victim.[8]
For England, Wales, and Scotland, the Crime and Disorder Act 1998 makes hateful behaviour towards a victim based on the victim’s membership (or presumed membership) in a racial group or a religious group an aggravation in sentencing for specified crimes.[31] For Northern Ireland, Public Order (Northern Ireland) Order 1987 (S.I. 1987/463 (N.I. 7)) serves the same purpose.[32] A “racial group” is a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins. A “religious group” is a group of persons defined by reference to religious belief or lack of religious belief. The specified crimes are assault, criminal damage, offences under the Public Order Act 1986, and offences under the Protection from Harassment Act 1997.
The Criminal Justice Act 2003 requires a court to consider whether a crime which is not specified by the Crime and Disorder Act 1998 is racially or religiously aggravated. The Act requires a court also to consider whether the following circumstances were pertinent to the crime:
In Scottish Common law the courts can take any aggravating factor into account when sentencing someone found guilty of an offence. There is specific legislation dealing with the offences of incitement of racial hatred, racially-aggravated harassment and offences aggravated by religious prejudice. A Scottish Executive working party examined the issue of hate crime and ways of combating crime motivated by social prejudice, reporting in 2004.[35] Its main recommendations were not implemented, but in their manifestos for the Scottish Parliament election, 2007 several political parties included commitments to legislate in this area, including the Scottish National Party who now form the Scottish Government. The Offences (Aggravation by Prejudice) (Scotland) Bill was introduced on 19 May 2008 by Patrick Harvie MSP,[36] having been prepared with support from the Scottish Government, and passed unanimously by the parliament on 3 June 2009.[37]
Albania, Cyprus, Estonia, San Marino, Slovenia and Turkey have no hate crime laws.[8]
“In Canada the legal definition of hate crime can be found in sections 318 and 319 of the Criminal Code”. [38]
In 1996 the federal government amended a section of the Criminal Code that pertains to sentencing. Specifically, section 718.2. The section states (with regard to the hate crime):
A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, . . . shall be deemed to be aggravating circumstances.'' [38]
A vast majority (84 per cent) of Hate crime perpetrators were “male, with an average age of just under 30. Less than 10 of those accused had criminal records, and less than 5 per cent had previous hate crime involvement (ibid O’Grady 2010 page 163.).” [39] “Only 4 percent of hate crimes were linked to an organized or extremist group (Silver et al., 2004).” [40]
As of 2004, Jewish people were the largest ethnic group targeted by hate crimes. Followed by, blacks, Muslims, South Asians, and gays and lesbians (Silver et al., 2004).[40]
Historically, hate crime has been around for a long time, yet it was most noticed when the lynching of African Americans by white racists took place, an example of what today we call hate crime. Hate related violence also has a historical root in Canada. In the 1920s and 1930s, anti-Semitism was a major deal in Canada, due to the rise of the Nazi government in Germany. For example, on August 16, 1933 there was a baseball game in Toronto and one team was made up of mostly Jewish players. At the end of the game, a group of Nazi sympathizers unfolded a Swastika flag and shouted ‘Heil Hitler’. That event erupted into a brawl that had Jews and Italians against Anglo Canadians and the brawl went on for hours.[38]
The first time someone was charged with hate crime over the internet occurred on 27 March 1996. “A Winnipeg teenager was arrested by the police for sending an email to a local political activist that contained the message ‘Death to homosexuals’ it’s prescribed in the Bible! Better watch out next Gay Pride Week.’ (Nairne, 1996).” Pg.162[40]
Robert suggests that “Canada lags behind other nations in collecting comprehensive statistics on hate crime.” [41]
Hate crime laws have a long history in the United States. The first hate crime laws were passed after the American Civil War. The modern era of hate-crime legislation was begun in 1968 with the passage of federal statute, 18 U.S. 245, part of the Civil Rights Act which made it illegal to "by force or by threat of force, injure, intimidate, or interfere with anyone who is engaged in six specified protected activities, by reason of their race, color, religion, or national origin." However, "The prosecution of such crimes must be certified by the U.S. attorney general.".[42]
The first state hate-crime statute, California's Section 190.2, was passed in 1978 and provided for penalty enhancement in cases where murder was motivated by prejudice against four "protected status" categories: race, religion, color, and national origin. Washington included ancestry in a statute passed in 1981. Alaska included creed and gender in 1982 and later disability, sexual orientation, and ethnicity. In the 1990s some state laws began to include age, marital status, membership in the armed forces, and membership in civil rights organizations.[43]
Criminal acts which could be considered hate crimes in various states included aggravated assault, assault and battery, vandalism, rape, threats and intimidation, arson, trespassing, stalking, and various "lesser" acts until in 1987 California state legislation included all crimes as possible hate crimes.[44]
Defined in the 1999 National Crime Victim Survey, "A hate crime is a criminal offense. In the United States, federal prosecution is possible for hate crimes committed on the basis of a person's race, religion, or nation origin when engaging in a federally protected activity." In 2009, the Matthew Shepard Act added perceived gender, gender identity, sexual orientation, and disability to the federal definition, and dropped the prerequisite that the victim be engaging in a federally-protected activity.
Forty-five states and the District of Columbia have statutes criminalizing various types of hate crimes. Thirty-one states and the District of Columbia have statutes creating a civil cause of action in addition to the criminal penalty for similar acts. Twenty-seven states and the District of Columbia have statutes requiring the state to collect hate crime statistics.[45]
According to the FBI Hate Crime Statistics report for 2006, hate crimes increased nearly 8% nationwide, with a total of 7,722 incidents and 9,080 offenses reported by participating law enforcement agencies. Of the 5,449 crimes against persons, 46% were classified as intimidation and 31.9% as simple assaults. 81% of the 3,593 crimes against property were acts of vandalism or destruction.[46]
However, according to the FBI Hate Crime Statistics for 2007, the number of hate crimes decreased to 7,624 incidents reported by participating law enforcement agencies.[47] These incidents included 9 murders and 2 rapes(out of the almost 17,000 murders and 90,000 forcible rapes committed in the U.S. in 2007).[48]
Attorney General Eric Holder said in June 2009 that recent killings show the need for a tougher U.S. hate crimes law to stop "violence masquerading as political activism".[49]
In Brazil, hate crime laws focus on racism, racial injury, and other special bias-motivated crimes such as, for example, murder by death squads[50] and genocide on the grounds of nationality, ethnicity, race or religion.[51] Murder by death squads and genocide are legally classified as "hideous crimes" (crimes hediondos in Portuguese).[52]
The crimes of racism and racial injury, although similar, are enforced slightly differently.[53] Article 140, 3rd paragraph, of the Penal Code establishes a harsher penalty, from a minimum of 1 year to a maximum of 3 years, for injuries motivated by "elements referring to race, color, ethnicity, religion, origin, or the condition of being an aged or disabled person".[54] On the other side, Law 7716/1989 covers "crimes resulting from discrimination or prejudice on the grounds of race, color, ethnicity, religion, or national origin".[55]
In addition, the Brazilian Constitution defines as a "fundamental goal of the Republic" (Article 3rd, clause IV) "to promote the wealth of all, with no prejudice as to origin, race, sex, color, age, and any other forms of discrimination".[56]
Justifications for harsher punishments for hate crimes focus on the notion that hate crimes cause greater individual and societal harm. It is said that, when the core of a person’s identity is attacked, the degradation and dehumanization is especially severe, and additional emotional and physiological problems are likely to result. Society then, in turn, can suffer from the disempowerment of a group of people. Furthermore, it is asserted that the chances for retaliatory crimes are greater when a hate crime has been committed. The riots in Los Angeles, California that followed the beating of Rodney King, a Black motorist, by a group of White police officers are cited as support for this argument.[4] The beating of white truck driver Reginald Denny by black rioters during the same riot is also an example that would support this argument.
In Wisconsin v. Mitchell the U.S. Supreme Court unanimously found that penalty-enhancement hate crime statutes do not conflict with free speech rights, because they do not punish an individual for exercising freedom of expression; rather, they allow courts to consider motive when sentencing a criminal for conduct which is not protected by the First Amendment.[57]
The U.S. Supreme Court unanimously found the St. Paul Bias-Motivated Crime Ordinance amounted to viewpoint-based discrimination is in conflict with rights of free speech, because it selectively criminalized bias-motivated speech or symbolic speech for disfavored topics while permitting such speech for other topics.[58] Many critics further assert that it conflicts with an even more fundamental right: free thought. The claim is that hate-crime legislation effectively makes certain ideas or beliefs, including religious ones, illegal, in other words, thought crimes.[59][60][61][62][63][64][65]
In their book Hate Crimes: Criminal Law and Identity Politics, James B. Jacobs and Kimberly Potter criticize hate crime legislation for exacerbating conflicts between groups. They assert that by defining crimes as being committed by one group against another, rather than as being committed by individuals against their society, the labeling of crimes as “hate crimes” causes groups to feel persecuted by one another, and that this impression of persecution can incite a backlash and thus lead to an actual increase in crime.[66] Some have argued hate crime laws bring the law into disrepute and further divide society, as groups apply to have their critics silenced.[67] Some have argued that if it is true that all violent crimes are the result of the perpetrator's contempt for the victim, then all crimes are hate crimes. Thus, if there is no alternate rationale for prosecuting some people more harshly for the same crime based on who the victim is, then different defendants are treated unequally under the law, which violates the United States Constitution.[68]
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