Hate crime

A hate crime (also known as a bias-motivated crime or bias crime[1]) is a prejudice-motivated crime which occurs when a perpetrator targets a victim because of their membership (or perceived membership) of a certain social group or race.

"Race hate" redirects here. For the song, see Message Man. For other uses, see Hate crime (disambiguation).
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Examples of such groups can include, and are almost exclusively limited to: sex, ethnicity, disability, language, nationality, physical appearance, religion, gender identity or sexual orientation.[2][3][4] Non-criminal actions that are motivated by these reasons are often called "bias incidents".

"Hate crime" generally refers to criminal acts which are seen to have been motivated by bias against one or more of the social groups listed above, or by bias against their derivatives. Incidents may involve physical assault, damage to property, bullying, harassment, verbal abuse or insults, mate crime or offensive graffiti or letters (hate mail).[5]

A hate crime law is a law intended to deter bias-motivated violence.[6] Hate crime laws are distinct from laws against hate speech: hate crime laws enhance the penalties associated with conduct which is already criminal under other laws, while hate speech laws criminalize a category of speech. Hate speech laws exist in many countries. In the United States, hate speech laws have been upheld by both the Supreme Court[7] and lower courts, especially in the case of 'fighting' words and other violent speech, but are thought by some to be in conflict with the First Amendment right to freedom of speech. Hate crimes are only regulated through threats of injury or death.

History

The term "hate crime" came into common usage in the United States during the 1980s, but it is often used retrospectively in order to describe events which occurred prior to that era.[8] From the Roman persecution of Christians to the Nazi slaughter of Jews, hate crimes were committed by individuals as well as governments long before the term was commonly used.[4] A major part of defining crimes as hate crimes is determining that they have been committed against members of historically oppressed groups.[9][10]

As Europeans began to colonize the world from the 16th century onwards, indigenous peoples in the colonized areas, such as Native Americans increasingly became the targets of bias-motivated intimidation and violence. During the past two centuries, typical examples of hate crimes in the U.S. include lynchings of African Americans, largely in the South, and lynchings of Mexicans and Chinese in the West; cross burnings in order to intimidate black activists or drive black families out of predominantly white neighborhoods both during and after Reconstruction; 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.[11]

The verb "to lynch" is attributed to the actions of Charles Lynch, an 18th-century Virginia Quaker. Lynch, other militia officers, and justices of the peace rounded up Tory sympathizers who were given a summary trial at an informal court; sentences which were handed down included whipping, property seizure, coerced pledges of allegiance, and conscription into the military. Originally, the term referred to the extrajudicial organized but unauthorized punishment of criminals. It later evolved to describe executions which were committed outside "ordinary justice." It is highly associated with white suppression of African Americans in the South, and periods of weak or nonexistent police authority, as in certain frontier areas of the Old West.[4]

Psychological effects

Hate crimes can have significant and wide-ranging psychological consequences, not only for their direct victims but for others as well. A 1999 U.S. study of lesbian and gay victims of violent hate crimes documented that they experienced higher levels of psychological distress, including symptoms of depression and anxiety, than lesbian and gay victims of comparable crimes which were not motivated by antigay bias.[12] A manual issued by the Attorney-General of the Province of Ontario in Canada lists the following consequences:[13]

Impact on the individual victim
psychological and affective disturbances; repercussions on the victim's identity and self-esteem; both reinforced by a specific hate crime's degree of violence, which is usually stronger than that of a common crime.
Effect on the targeted group
generalized terror in the group to which the victim belongs, inspiring feelings of vulnerability among its other members, who could be the next hate crime victims.
Effect on other vulnerable groups
ominous effects on minority groups or on groups that identify themselves with the targeted group, especially when the referred hate is based on an ideology or a doctrine that preaches simultaneously against several groups.
Effect on the community as a whole
divisions and factionalism arising in response to hate crimes are particularly damaging to multicultural societies.

Hate crime victims can also develop depression and psychological trauma.[14]

A review of European and American research indicates that terrorist bombings cause Islamophobia and hate crimes to flare up but, in calmer times, they subside again, although to a relatively high level.[15] Terrorist's most persuasive message is that of fear and fear, a primary and strong emotion, increases risk estimates and has distortive effects on the perception of ordinary Muslims.[15] Widespread Islamophobic prejudice seems to contribute to anti-Muslim hate crimes, but indirectly: terrorist attacks and intensified Islamophobic prejudice serve as a window of opportunity for extremist groups and networks.[15]

Motivation

The United States Federal Bureau of Investigation conducted a study into the motives for hate crimes and found four motives:[16]

  • Thrill-seeking - perpetrators engage in hate crimes for excitement and drama. There is often no greater purpose behind the crimes, with victims being vulnerable because they have an ethnic, religious, sexual or gender background that differs from their attackers. While the actual animosity present in such a crime can be quite low, thrill-seeking crimes were determined to often be dangerous, with 70% of thrill-seeking hate crimes studied involving physical attacks.
  • Defensive - perpetrators engage in hate crimes out of a belief they are protecting their communities. These are often triggered by a certain background event. Perpetrators believe society supports their actions but is too afraid to act and thus they believe they have communal assent in their actions.
  • Retaliatory - perpetrators engage in hate crimes out of a desire for revenge. This can be in response to personal slights, other hate crimes or terrorism. The "avengers" target members of a group whom they believe committed the original crime, even if the victims had nothing to do with it. These kinds of hate crimes are a common occurrence after terrorist attacks.
  • Mission offenders - perpetrators engage in hate crimes out of ideological reasons. They consider themselves to be crusaders, often for a religious or racial cause. They will often write complex explanations for their views and target symbolically important sites while trying to maximize damage. They believe that there is no other way to accomplish their goals, which they consider to be justification for excessive violence against innocents. This kind of hate crime often overlaps with terrorism and was considered by the FBI to be both the rarest and deadliest form of hate crime.

The categories of hate crimes can often overlap and it can be unclear which category a particular offence should fit in to.[16]

Laws

Hate crime laws generally fall into one of several categories:

  1. laws defining specific bias-motivated acts as distinct crimes;
  2. criminal penalty-enhancement laws;
  3. laws creating a distinct civil cause of action for hate crimes; and
  4. laws requiring administrative agencies to collect hate crime statistics.[17] Sometimes (as in Bosnia and Herzegovina), the laws focus on war crimes, genocide, and crimes against humanity with the prohibition against discriminatory action limited to public officials.

Eurasia

European Union

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.[18]

Andorra

Discriminatory acts constituting harassment or infringement of a person's dignity on the basis of origin, citizenship, race, religion, or gender (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.[17]

Armenia

Armenia has a penalty-enhancement statute for crimes with ethnic, racial, or religious motives (Criminal Code Article 63).[17]

Austria

Austria has a penalty-enhancement statute for reasons like repeating a crime, being especially cruel, using others' helpless states, playing a leading role in a crime, or committing a crime with racist, xenophobic or especially reprehensible motivation (Penal Code section 33(5)).[19]

Azerbaijan

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).[17]

Belarus

Belarus has a penalty-enhancement statute for crimes motivated by racial, national, and religious hatred and discord.[17][20]

Belgium

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 gender, 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."[17] 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.[17]

Bosnia and Herzegovina

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)."[21]

Bulgaria

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."[22]

Croatia

The Croatian Penal Code explicitly defines hate crime in article 89 as "any crime committed out of hatred for someone's 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".[23] On 1 January 2013, a new Penal Code was introduced with the recognition of a hate crime based on "race, skin color, religion, national or ethnic background, sexual orientation or gender identity".[24]

Czech Republic

The Czech legislation finds its constitutional basis in the principles of equality and non-discrimination contained in the Charter of Fundamental Rights and Basic Freedoms. From there, we can trace two basic lines of protection against hate-motivated incidents: one passes through criminal law, the other through civil law. The current Czech criminal legislation has implications both for decisions about guilt (affecting the decision whether to find a defendant guilty or not guilty) and decisions concerning sentencing (affecting the extent of the punishment imposed). It has three levels, to wit:

  • a circumstance determining whether an act is a crime – hate motivation is included in the basic constituent elements. If hate motivation is not proven, a conviction for a hate crime is not possible.
  • a circumstance determining the imposition of a higher penalty – hate motivation is included in the qualified constituent elements for some types of crimes (murder, bodily harm). If hate motivation is not proven, the penalty is imposed according to the scale specified for the basic constituent elements of the crime.
  • general aggravating circumstance – the court is obligated to take the hate motivation into account as a general aggravating circumstance and determines the amount of penalty to impose. Nevertheless, it is not possible to add together a general aggravating circumstance and a circumstance determining the imposition of a higher penalty. (see Annex for details)

Current criminal legislation does not provide for special penalties for acts that target another by reason of his sexual orientation, age or health status. Only the constituent elements of the criminal offence of Incitement to hatred towards a group of persons or to the curtailment of their rights and freedoms and general aggravating circumstances include attacking a so-called different group of people. Such a group of people can then, of course, be also defined by sexual orientation, age or health status. A certain disparity has thus been created between, on the one hand, those groups of people who are victimized by reason of their skin color, faith, nationality, ethnicity or political persuasion and enjoy increased protection, and, on the other hand, those groups that are victimized by reason of their sexual orientation, age or health status and are not granted increased protection. This gap in protection against attacks motivated by the victim's sexual orientation, age or health status cannot be successfully bridged by interpretation. Interpretation by analogy is inadmissible in criminal law, sanctionable motivations being exhaustively enumerated.[25]

Denmark

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."[26] In recent years judges have used this provision to increase sentences on the basis of racist motives.[17][27]

Since 1992, the Danish Civil Security Service (PET) has released statistics on crimes with apparent racist motivation.[17]

Estonia

Under section 151 of the Criminal Code of Estonia of 6 June 2001, which entered into force on 1 September 2002, with amendments and supplements and as amended by the Law of 8 December 2011, "activities which publicly incite to hatred, violence or discrimination on the basis of nationality, race, colour, sex, language, origin, religion, sexual orientation, political opinion, or financial or social status, if this results in danger to the life, health or property of a person, are punishable by a fine of up to 300 fine units or by detention".[28]

Finland

Finnish Criminal Code 515/2003 (enacted 31 January 2003) makes "committing a crime against a person, because of his national, racial, ethnical or equivalent group" an aggravating circumstance in sentencing.[17][29] 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 conveyed. 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

  1. illegal violence directed against a foreign country or its citizens,
  2. systematic dissemination of false information on Finnish foreign policy or defense
  3. public influence on the public opinion towards a pro-war viewpoint or
  4. public suggestion that a foreign country or Finland should engage in an aggressive act.[30]

Nepal

France

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).[17][31]

Georgia

"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."[17]

Germany

The German Criminal Code does not have hate crime legislation, instead, it 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 willfulness involved in its commission."[32] 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.[33]

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 18,142 incidences for 2006, of which 17,597 were motivated by right-wing ideologies, both about a 14% year-by-year increase.[34] 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.[35] Awareness of hate crimes and right-wing extremism in Germany remains low.[36]

Greece

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."[37] 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.[38]

Hungary

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.[17] This article was added to the Code in 1996.[39]

Iceland

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."[40]

India

India does not have any specific laws governing hate crimes in general other than hate speech which is covered under the Indian Penal Code.

Ireland

"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."[17]

Ireland does not systematically collect hate crime data.[17]

Italy

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 motivated by racial, sex/gender, ethnic, national, or religious bias.[17]

Kazakhstan

In Kazakhstan, there are constitutional provisions prohibiting propaganda promoting racial or ethnic superiority.[17]

Kyrgyzstan

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."[41]

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.[17][42]

Russia

Article 29 of Constitution of the Russian Federation bans incitement to riot for the sake of stirring societal, racial, ethnic, and religious hatred as well as the promotion of the superiority of the same. Article 282 of the Criminal code further includes protections against incitement of hatred (including gender) via various means of communication, instilling criminal penalties including fines and imprisonment.[43]

Spain

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.[17]

On 14 May 2019, the Spanish Attorney General distributed a circular instructing on the interpretation of hate crime law. This new interpretation includes nazis as a collective that can be protected under this law.[44]

Sweden

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 similar circumstance" of the victim.[17][45]

Ukraine

I. "Constitution of Ukraine" :

The most important law of the Ukraine country : the "Constitution of Ukraine" guarantees protection against Hate crime :

"Constitution of Ukraine" :

Article 10: "In Ukraine, free development, use and protection of Russian and other languages of ethnic minorities of Ukraine are guaranteed".

Article 11: "The State shall promote the development of the ethnic, cultural, linguistic and religious identity of all indigenous peoples and ethnic minorities of Ukraine".

Article 24 :"There can be no privileges or restrictions on the grounds of race, color of the skin, political, religious or other beliefs, sex, ethnic or social origin, property status, place of residence, language or other grounds".[46]

II. "CRIMINAL CODEX OF UKRAINE" :

In Ukraine, all criminal punishments for crimes committed under the law are required to be registered in only one law, it is the only one: "CRIMINAL CODEX OF UKRAINE"

The crimes committed because of hatred, are Hate crimes and thus, they reinforce the punishment in many articles of the criminal law. There are also separate articles on punishment for a Hate crime.

"CRIMINAL CODEX OF UKRAINE" :

Article 161: "Violations of equality of citizens depending on their race, ethnicity, religious beliefs, disability and other grounds

1. Intentional acts aimed at incitement to ethnic, racial or religious hatred and violence, to demean the ethnic honor and dignity, or to repulse citizens' feelings due to their religious beliefs, as well as direct or indirect restriction of rights or the establishment of direct or indirect privileges of citizens on the grounds of race, color, political, religious or other beliefs, sex, disability, ethnic or social origin, property status, place of residence, language or other grounds"(Maximum criminal sentence of up to 8 years in prison)

Article 300 : "Importation, manufacture or distribution of literature and other media promoting a cult of violence and cruelty, racial, ethnic or religious intolerance and discrimination" (Maximum criminal sentence of up to 5 years in prison)[47]

United Kingdom

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.[48] The Anti-terrorism, Crime and Security Act 2001 (c. 24) amended sections of the Crime and Disorder Act 1998.[49] For Northern Ireland, Public Order (Northern Ireland) Order 1987 (S.I. 1987/463 (N.I. 7)) serves the same purpose.[50] 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.

Sections 145 and 146 of the Criminal Justice Act 2003 require a court to consider whether a crime which is not specified by the Crime and Disorder Act 1998 is racially or religiously aggravated, and to consider whether the following circumstances were pertinent to the crime:

(a) that, at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—
(i) the sexual orientation (or presumed sexual orientation) of the victim, or
(ii) a disability (or presumed disability) of the victim, or
(b) that the offence is motivated (wholly or partly)—
(i) by hostility towards persons who are of a particular sexual orientation, or
(ii) by hostility towards persons who have a disability or a particular disability.[51][52]

The Crime Survey for England and Wales (CSEW) reported in 2013 that there were an average of 278,000 hate crimes a year with 40% being reported according to a victims survey, although police records only identified around 43,000 hate crimes a year.[53] It was reported that police recorded a 57% increase in hate crime complaints in the four days following the UK's European Union membership referendum, however a press release from the National Police Chief's Council stated that "this should not be read as a national increase in hate crime of 57 percent".[54][55]

In 2013, Greater Manchester Police began recording attacks on goths, punks and other alternative culture groups as hate crimes.[56]

On 4 December 2013 Essex Police launched the ‘Stop the Hate’ initiative as part of a concerted effort to find new ways to tackle hate crime in Essex. The launch was marked by a conference in Chelmsford, hosted by Chief Constable Stephen Kavanagh, which brought together 220 delegates from a range of partner organizations involved in the field. The theme of the conference was 'Report it to Sort it' and the emphasis was on encouraging people to tell police if they have been a victim of hate crime, whether it be based on race, religion, sexual orientation, transgender identity or disability.[57]

Crown Prosecution Service guidance issued on 21 August 2017 stated that online hate crimes should be treated as seriously as offences in person.[58]

Perhaps the most high-profile hate crime in modern Britain occurred in Eltham, London, on 24 April 1993, when 18-year-old black student Stephen Lawrence was stabbed to death in an attack by a gang of white youths. Two white teenagers were later charged with the murder, and at least three other suspects were mentioned in the national media, but the charges against them were dropped within three months after the Crown Prosecution Service concluded that there was insufficient evidence to prosecute. However, a change in the law a decade later allowed a suspect to be charged with a crime twice if new evidence emerged after the original charges were dropped or a "not guilty" verdict was delivered in court. Gary Dobson, who had been charged with the murder in the initial 1993 investigation, was found guilty of Stephen Lawrence's murder in January 2012 and sentenced to life imprisonment, as was David Norris, who had not been charged in 1993. A third suspect, Luke Knight, had been charged in 1993 but was not charged when the case came to court nearly 20 years later.

Scotland

Under Scottish Common law the courts can take any aggravating factor into account when sentencing someone found guilty of an offence. There is legislation dealing with the offences of incitement of racial hatred, racially aggravated harassment, prejudice relating to religious beliefs, disability, sexual orientation, and transgender identity.[59] A Scottish Executive working group examined the issue of hate crime and ways of combating crime motivated by social prejudice, reporting in 2004.[60] Its main recommendations were not implemented, but in their manifestos for the 2007 Scottish Parliament election 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,[61] having been prepared with support from the Scottish Government, and was passed unanimously by the parliament on 3 June 2009.[62]

Eurasian countries with no hate crime laws
A photograph of the famous fresco Bathing of the Christ, after being vandalized by a Kosovo Albanian mob during the 2004 unrest in Kosovo

Albania, Cyprus, San Marino, Slovenia and Turkey have no hate crime laws.[17]

North America

Canada

"In Canada the legal definition of a hate crime can be found in sections 318 and 319 of the Criminal Code". [63]

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.'' [63]

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.)." [64] "Only 4 percent of hate crimes were linked to an organized or extremist group (Silver et al., 2004)." [65]

As of 2004, Jewish people were the largest ethnic group targeted by hate crimes, followed by Black people, Muslims, South Asians, and homosexuals (Silver et al., 2004).[65]

During the Nazi regime, anti-Semitism was a cause of hate-related violence in Canada. For example, on 16 August 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.[63]

The first time someone was charged with hate speech 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)."[65]

United States
Main article: Hate crime laws in the United States
Shepard (center), Louvon Harris (left), Betty Bryd Boatner (right) with President Barack Obama in 2009 to promote the Hate Crimes Prevention Act

Hate crime laws have a long history in the United States. The first hate crime[66] laws were passed after the American Civil War, beginning with the Civil Rights Act of 1871, in order to combat the growing number of racially motivated crimes which were being committed by the Reconstruction era Ku Klux Klan. The modern era of hate-crime legislation began 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.".[67]

The first state hate-crime statute, California's Section 190.2, was passed in 1978 and it provided penalty enhancements in cases when murders were motivated by prejudice against four "protected status" categories: race, religion, color, and national origin. Washington included ancestry in a statute which was passed in 1981. Alaska included creed and sex 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.[68]

Until California state legislation included all crimes as possible hate crimes in 1987, 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.[69]

Defined in the 1999 National Crime Victim Survey, "A hate crime is a criminal offence. 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, President Barack Obama signed into law the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act. The Act added actual or perceived gender, gender identity, sexual orientation, and disability to the federal definition of a hate crime, and dropped the prerequisite that the victim be engaging in a federally protected activity. Led by Shepard's parents and a coalition of civil rights groups, including ADL (the Anti-Defamation League),[70][71]the campaign to pass the Matthew Shepard Act lasted 13 years, in large part because of opposition to including the term "sexual orientation" as one of the bases for deeming a crime to be a hate crime.[72]

ADL also drafted model hate crimes legislation in the 1980s that serves as the template for the legislation that a majority of states have adopted.[73] As of the Spring of 2020, forty-five states and the District of Columbia have statutes criminalizing various types of hate crimes.[74] 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.[75] In May 2020 the shooting of African-American jogger Ahmaud Arbery in Brunswick, Georgia reinvigorated efforts attempting to make George the 46th state to adopt a hate crimes law.[76]

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 offences reported by participating law enforcement agencies. Of the 5,449 crimes against persons, 46% were classified as intimidation and 32% as simple assaults. 81% of the 3,593 crimes against property were acts of vandalism or destruction.[77]

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.[78] 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).[79]

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".[80]

In 2009, the Leadership Conference on Civil Rights Education Fund published a report revealing that 33% of hate crime offenders were under the age of 18, while 29% were between the ages of 18 and 24.[81]

The 2011 hate crime statistics show 46.9% were motivated by race and 20.8% by sexual orientation.[82]

In 2015, the Hate Crimes Statistics report identified 5,818 single-bias incidents involving 6,837 offenses, 7,121 victims, and 5,475 known offenders[83]

In 2017, the FBI released new data showing a 17% increase in hate crimes between 2016 and 2017.

Prosecutions of hate crimes have been difficult in the United States. Recently, state governments have attempted to re-investigate and re-try past hate crimes. One notable example was Mississippi's decision to retry Byron De La Beckwith in 1990 for the 1963 murder of Medgar Evers, a prominent figure in the NAACP and a leader of the Civil rights movement.[84] This was the first time in U.S. history that an unresolved civil rights case was re-opened. De La Beckwith, a member of the Ku Klux Klan, was tried for the murder on two previous occasions, resulting in hung juries. A mixed race jury found Beckwith guilty of murder. He was sentenced to life in prison in 1994.[85]

According to a November 2016 report issued by the FBI hate crime statistics are on the rise in the United States.[86] The number of hate crimes increased from 5,850 in 2015, to 6,121 hate crime incidents in 2016, an increase of 4.6 percent.[87][88][89]

Khalid Jabara-Heather Heyer National Opposition to Hate, Assault, and Threats to Equality Act (NO HATE), which was first introduced in 2017, was reintroduced in June 2019 as a response to anti-LGBTQ, anti-Muslim and anti-Semitic attacks to improve hate crime reporting and expand support for victims. The bill will fund state hate crime hotlines, support expansion of reporting and training programs in law enforcement agencies.[90]

Victims in the United States

One of the largest waves of hate crimes in the United States took place during the civil rights movement in the 1960s. Both violence and threats of violence were common against African Americans, and hundreds of lives were lost due to such acts. Members of this social class faced violence from groups such as the Ku Klux Klan as well as violence from individuals who were committed to maintaining segregation.[91] At the time, civil rights leaders such as Martin Luther King Jr. and their supporters fought hard for the right of African Americans to vote as well as for equality in their everyday lives. African Americans have been the target of hate crimes since the Civil War,[92] and the humiliation of this social class was also desired by many Anti-black individuals. Other frequently reported bias motivations were bias against a religion, bias against a particular sexual orientation, and bias against a particular ethnicity/national origin.[93] At times, these bias motivations overlapped, because violence can be both anti-gay and anti-black, for example.[94]

Analysts have compared groups in terms of the per capita rate of hate crimes committed against them, to allow for differing populations. Overall, the total number of hate crimes committed since the first hate crime bill was passed in 1997 is 86,582.[95] David Ray Hate Crimes Prevention Act

Contentious Case:

On 29 January 2019, Chicago police announced that they were investigating a suspected racist and homophobic attack on actor Jussie Smollett.[96] However, on 20 February 2019, Jessie Smollett had been "classified as a suspect in a criminal investigation by #ChicagoPolice for filling a false police report (Class 4 felony). This charges he faced were cleared on the 26th of March however after spurring much debate about the validity and impact of alleged attack. Notably, "Chicago Police and the city's mayor stand by their case against Jussie Smollet."[97]

Hate Crimes in the US (2008–2012) by Population Group
Population Group Estimated Population Total Hate Crimes Against (2008-2012)[98][99][100][101][102] Rate (per 100,000 people) Violent Hate Crimes Against[103] Rate (per 100,000 people)
Jewish 5,248,674[104] 4,457 84.9 411 7.8
LGBT 11,343,000[105] 7,231 66.9 3,849 35.6
Muslim 1,852,473[104] 761 41.1 258 13.9
Black 38,929,319[106] 13,411 34.4 4,356 11.2
Aboriginal 2,932,248[106] 364 12.4 161 5.5
Hispanic 50,477,594[106] 3,064 6.1 1,482 2.9
Asian & Pacific Islander 15,214,265[106] 798 5.2 276 1.8
White 223,553,265[106] 3,459 1.5 1,614 0.7
Catholic 67,924,018[107] 338 0.5 32 0.0
Atheist & Agnostic 17,598,496[107] 47 0.3 5 0.0
Protestant 148,197,858[107] 229 0.2 17 0.0

Among the groups which are currently mentioned in the Hate Crimes Statistics Act, the largest number of hate crimes are committed against African Americans.[108] During the Civil Rights Movement, some of the most notorious hate crimes included the 1968 assassination of Martin Luther King Jr., the 1964 murders of Charles Moore and Henry Dee, the 1963 16th Street Baptist Church bombing, the 1955 murder of Emmett Till,[92] as well as the burning of crosses, churches, Jewish synagogues and other places of worship of minority religions. Such acts began to take place more frequently after the racial integration of many schools and public facilities.[108]

High-profile murders targeting victims based on their sexual orientation have prompted the passage of hate crimes legislation, notably the cases of Sean W. Kennedy and Matthew Shepard. Kennedy's murder was mentioned by Senator Gordon Smith in a speech on the floor of the US Senate while he advocated such legislation. The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act was signed into law in 2009. It included sexual orientation, gender identity and expression, the disabled, and military personnel and their family members.[109][110] This is the first all-inclusive bill ever passed in the United States, taking 45 years to complete.

Gender-based crimes may also be considered hate crimes. This view would designate rape and domestic violence, as well as non-interpersonal violence against women such as the École Polytechnique massacre in Quebec, as hate crimes.[111][112][113]

In May 2018, ProPublica reviewed police reports for 58 cases of purported anti-heterosexual hate crimes. ProPublica found that about half of the cases were anti-LGBT hate crimes that had been miscategorized, and that the rest were motivated by hate towards Jews, blacks or women or that there was no element of a hate crime at all. ProPublica found not a single case of a hate crime spurred by anti-heterosexual bias.[114]

South America
Further information: Social cleansing

Brazil

In Brazil, hate crime laws focus on racism, racial injury, and other special bias-motivated crimes such as, for example, murder by death squads[115] and genocide on the grounds of nationality, ethnicity, race or religion.[116] Murder by death squads and genocide are legally classified as "hideous crimes" (crimes hediondos in Portuguese).[117]

The crimes of racism and racial injury, although similar, are enforced slightly differently.[118] 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".[119] 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".[120]

In addition, the Brazilian Constitution defines as a "fundamental goal of the Republic" (Article 3rd, clause IV) "to promote the well-being of all, with no prejudice as to origin, race, sex, color, age, and any other forms of discrimination".[121]

Chile

In 2012, the Anti-discrimination law amended the Criminal Code adding a new aggravating circumstance of criminal responsibility, as follows: "Committing or participating in a crime motivated by ideology, political opinion, religion or beliefs of the victim; nation, race, ethnic or social group; sex, sexual orientation, gender identity, age, affiliation, personal appearance or suffering from illness or disability."[122][123]

Middle East

Israel is the only country in the Middle East that has hate crime laws. Hate crime, as passed by the Israeli Knesset (Parliament), is defined as crime for reason of race, religion, gender and sexual orientation.

Support for and opposition to hate crime laws

Support

Justifications for harsher punishments for hate crimes focus on the notion that hate crimes cause greater individual and societal harm. It is said[124] 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.[11] The beating of white truck driver Reginald Denny by black rioters during the same riot is also an example that supports 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.[125] Whilst in the case of Chaplinsky v. New Hampshire the court defined "fighting words" as "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."[126]

Opposition

The U.S. Supreme Court unanimously found the St. Paul Bias-Motivated Crime Ordinance amounted to viewpoint-based discrimination 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.[127] 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.[128] Heidi Hurd argues that hate crimes criminalize certain dispositions yet do not show why hate is a morally worse disposition for a crime than one motivated by jealousy, greed, sadism or vengeance or why hatred and bias are uniquely responsive to criminal sanction compared to other motivations. Hurd argues that whether or not a disposition is worse than another is case sensitive and thus it is difficult to argue that some motivations are categorically worse than others.[129]

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.[130] Jacobs and Potter also argued that hate crime legislation can end up only covering the victimization of some groups rather than all, which is a form of discrimination itself and that attempts to remedy this by making all identifiable groups covered by hate crime protection thus make hate crimes co-terminus with generic criminal law. The authors also suggest that arguments which attempt to portray hate crimes as worse than normal crimes because they spread fear in a community are unsatisfactory, as normal criminal acts can also spread fear yet only hate crimes are singled out.[130] Indeed, it has been argued that victims have varied reactions to hate crimes, so it is not necessarily true that hate crimes are regarded as more harmful than other crimes.[131][132]

Heidi Hurd argues that hate crime represents an effort by the state to encourage a certain moral character in its citizen and thus represents the view that the instillation of virtue and the elimination of vice are legitimate state goals, which she argues is a contradiction of the principles of liberalism. Hurd also argues that increasing punishment for an offence because the perpetrator was motivated by hate compared to some other motivation means that the justice systems is treating the same crime differently, even though treating like cases alike is a cornerstone of criminal justice.[133]

Some have argued hate crime laws bring the law into disrepute and further divide society, as groups apply to have their critics silenced.[134] American forensic psychologist Karen Franklin said that the term hate crime is somewhat misleading since it assumes there is a hateful motivation which is not present in many occasions;[135] in her view, laws to punish people who commit hate crimes may not be the best remedy for preventing them because the threat of future punishment does not usually deter such criminal acts.[136] Some on the political left have been critical of hate crime laws for expanding the criminal justice system and dealing with violence against minority groups through punitive measures.[6] Briana Alongi argues that hate crime legislation is inconsistent, redundant and arbitrarily applied, while also being partially motivated by political opportunism and media bias rather than purely by legal principle.[137]

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See also

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  135. Frontline (PBS),Interviews, Accessed 26 July 2014, "...forensic psychologist, Karen Franklin's dual interests in psychology and the law brought her to question the roots of anti-gay hate crimes... badly needed empirical data on the nature and extent of negative reactions to gays..."
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