Hate Crimes and Hate Crime Laws

1. Hate Crimes and Hate Crime Laws Alli Jernow Senior Legal Advisor International Commission of Jurists

2. What’s a hate crime? • Two parts: Criminal conduct + Motive • What is criminal conduct? • What is motive?

3. Criminal conduct • Assault, murder, threats, vandalism, arson . . . anything that is listed in the Criminal Code. • But not typically: SPEECH. • Hate speech ≠ Hate crime

4. Motives • “I need money … to pay my rent.” • “I need money and I’ve selected you – gay man – because you’ll be afraid to go to the police.” • (But I’ve got nothing against gay men! My brother’s gay! I’m gay!) • “I’m going to bash your face in, and leave your wallet on the ground, just because I think you’re gay.” • (What if the victim isn’t gay??)

5. What’s a hate crime law? • Defines conduct that is criminal and imposes penalty (fine, prison sentence). • Purpose: to prohibit certain conduct and to punish people for engaging in such conduct. • Defines conduct • Elements of crime • To be proven by State at trial of accused • With evidence

6. Important point! • Hate crime laws aren’t always called “hate crime laws.” • But laws that impose extra penalty for discriminatory motive are hate crime laws. • The name is less important than the function. • Data collection laws are not hate crime laws.

7. Structure of hate crime laws • Criminal conduct • With a certain motive • What kind of motive? • Directed against a group or characteristic • What’s a group or characteristic? • Substantive offense vs. aggravating circumstance

8. Descriptions of motive • France: Penalty is increased when the offense is committed because of membership or non-membership, true or supposed, of the victim to an ethnic group, nation, race or religion. • Art. 132-76 Code Pénal • Belgium: Increase of two years when “one of the motives is hatred against, contempt for or hostility to a person” on certain grounds. • Art. 377bis Code Pénal • Descriptions of motive: • Hate, bias, animosity • Racist, xenophobic, homophobic • Because of, on account of

9. Protected groups/characteristics • Protected groups: • LGBT, sexual minorities, disabled, Roma, Muslims • Protected characteristics: • Sexual orientation, gender identity, ethnicity, race • Mistakes of perception, affiliation, association • UK: aggravated offense if offender demonstrates hostility based on victim’s membership or presumed membership in a racial or religious group. Membership includes association with members of that group. • Section 28 Crime and Disorder Act 1998

10. Substantive offense vs. aggravated circumstances • Aggravated circumstance = factor that increases seriousness of offense • Czech Republic: Using violence against individual because of his/her political conviction, nationality, race, creed or lack of creed. • Art. 196(2) Criminal Code

11. International commitments: states should • “Take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Failing to do so and treating racially induced violence and brutality on an equal footing with cases that have no racist overtones” may violate Article 14. • Nachovav. Bulgaria, ECtHR 2005 • Milanovicv. Serbia, ECtHR 2010 (religion) • Differences based on sexual orientation treated like differences based on race, sex. Salgueiroda Silva Moutav. Portugal.

12. States should • “Take necessary measures to ensure that racist and xenophobic motivation is considered an aggravating circumstance, or, alternatively, that such motivation may be taken into consideration by the courts in the determination of the penalties.” • Framework Decision on Racism and Xenophobia 2008

13. States should • Ensure that all allegations of attacks and threats against individuals targeted because of their sexual orientation or gender identity are thoroughly investigated. • Define hate speech and hate crimes based on sexual orientation or gender identity as crimes. • UN Human Rights Committee (Concluding Observations re Poland 2010) • Similar comments by CEDAW (Concluding Observations re South Africa 2011)

14. States should • Ensure effective, prompt and impartial investigations into alleged cases of crimes and other incidents, where the sexual orientation or gender identity of the victim is reasonably suspected to have constituted a motive for the perpetrator; • Ensure that when determining sanctions, a bias motive related to sexual orientation or gender identity may be taken into account as an aggravating circumstance. • Committee of Ministers Recommendation (2010)5

15. National laws • Most commonly protected: race, religion • “racially motivated hatred” or “ religiously motivated hatred” • Sexual orientation: • 15states within CoE (Andorra, Belgium, Croatia, Denmark, France, Greece, Lithuania, NL, Norway, Portugal, Romania, Slovenia, Spain, Sweden & UK) • 18 states have laws criminalizing incitement on SO • Gender identity: 1 (Scotland)

16. What can we do without hate crime laws? • Hate crimes vs. hate crime laws • Hate crime law - motive = criminal conduct • Purposes of hate crime law • Why do we have criminal laws? • What can we achieve without specific hate crime laws?