Hate Crime – A Terribly Flawed Concept

Some people seem to think that “hate crime” is the criminalizing of hatred, but that is not generally what is meant by the phrase. The reasoning behind the idea of “hate crime” is that a criminal act should be treated more seriously if it is motivated by hatred. So for example, if a man murders a woman, not just because he wants to steal her belongings, but also because he hates women, then the sentence should be longer (that’s THE idea, not MY idea). Hatred simply on its own is not the crime. “Hate Crime” is also not to be confused with “Hate Speech” which is a different concept.

My purpose in writing this post is to expose the flaws in this idea that evidence of hatred, particularly of a certain group of people, should warrant longer sentences. I believe trying to make such distinctions leads us into a moral quagmire and runs a risk of endangering possibly the most important principle of justice, namely equality before the law. It could also in fact be having exactly the opposite effect to the main effect intended, i.e. it could be increasing disharmony among groups in society.

EVIDENCE OF THE HATRED

The first rather enormous problem with the concept of “hate” crime is that a crime may indeed be motivated by hatred, but if there is no evidence of the hatred, if the perpetrator keeps his hatred under wraps as it were, then there is no way of knowing about it. Thus if we apply a harsher sentence only where there is EVIDENCE of hatred, then the law may be being applied unequally.

There is a counter argument to this point, that says that it is really the EVIDENCE of hatred that is the problem, because it could lead perhaps to copy-cat or retaliatory crimes and the hatred escalating between groups. For example, if the criminal shouted abuse that was heard by others as he committed the crime and the abuse is reported by the media.

In my mind however, this objection is outweighed by the first point. Imagine a situation of escalating violence between two racial groups. A gang of youths ventures into the “territory” of the other group and commits a murder of one of that other group. They agree beforehand that they must not reveal their hatred in any way as they commit the crime. How can a judge make a sensible decision in this case? It is pretty clear that the murder was racially motivated, especially if there have been a succession of similar murders, tit-for-tat killings going on back and forth between the groups, but there is no evidence that would stand the test of “beyond reasonable doubt”, that hatred of that particular group was a motivation. How do we know it wasn’t some sort of gang initiation, and would that really be less serious anyway?

ESCALATION OF CIVIL CONFLICT

In my mind the best argument in favour of enhanced sentencing of “hate” crimes is that such crimes might lead to escalation of hostility between 2 groups, which could descend into serious civil conflict on an increasing scale. However my objection to this comes from the point I already made above, that some such crimes could end up being judged less severely, just because EVIDENCE of the hatred is not available. In some circumstances, disproportionate sentencing might result – the categorization of a crime as “hate crime” in one circumstance, but not in another otherwise very similar case. This could actually have the exactly opposite effect to that intended, i.e. it could actually increase the sense of grievance in one group against the other group because they feel that the law has treated them more harshly than the other group, and that therefore that other group is somehow favoured by the authorities.

ESTABLISHING THE DEGREE OF HATRED

Consider an imaginary scene where an argument breaks out between two members of different races who know each other. The argument originated as a dispute about a gambling debt accrued during a game of cards which they had both participated in. As the argument escalates, the two people hurl abuse at each other, until eventually racial insults are exchanged. Then one of them lands a punch on the other that kills the other.

Now, how is a judge who is judging this case going to decide whether it was really a “hate crime” at all, and whether the racial insults were in fact just things said in the heat of the moment, not really heartfelt. Alternatively it could be that tensions between the two had been building for some time, and that those tensions had racial overtones. The dispute might have been motivated by racial hatred, but then again it might have had almost nothing to do with racial hatred. How on earth is a judge going to decide that?

MORAL RELATIVITY – IS A CASUAL CRIME NOT JUST AS MORALLY BAD AS A CRIME MOTIVATED BY HATRED?

Another enormous problem is that murdering someone casually, for no reason at all, is surely something just as morally bad as a murder motivated by hatred of a group. Perhaps a casual murder could even be morally considered a worse form of crime, in some circumstances. For example, if someone were to be murdered by the member of a particular religious cult, as part of a cult ritual, and then a relative of the victim were to murder another member of that same cult (who had not been involved in the murder of his relative), as a form of retaliation, then surely we could arguably have MORE sympathy with this crime that was inspired by hatred of the cult. This might even perhaps be regarded as a kind of mitigating circumstance, if the cult in question actively encouraged such murderous rituals? This could create a complicated dilemma for a judge – should he classify the case as a hate crime, and increase the sentence, or reduce the sentence due to a mitigating circumstance?

What about the case of a religious group where there are widely different perceptions (and knowledge of the beliefs) of that group among society more generally, and so judges may well be biased either in favour, or against, that religious group, and therefore this could affect their sentencing decisions. I am not suggesting that we should try to make judgements about that and increase or decrease sentencing accordingly, rather I am suggesting that the idea of “hate” crime is flawed altogether and leads to such subjective doubts.

Is hatred of a religious group that encourages its followers to behave peacefully, morally equivalent to hatred of a group that urges its followers to commit acts of violence, or abuse children? Should we give harsher sentences to those who commit “hate” crimes against the followers of the peaceful religion than to those who commit “hate” crimes against the group whose religion encourages violence? I think not. I think we should judge a murder simply as a murder regardless of these distinctions, because trying to make such distinctions will lead us into a moral quagmire and result in subjective sentencing.

To summarize this problem I am asking – is all hatred morally equivalent? I think most people would agree with me that hatred of another based on race, gender and other unalterable characteristics is certainly a bad thing. In these cases there is no doubt that the hatred is unjustified. However even in cases involving such hatred we are still left with the other problems I am raising.

THE QUESTION OF REHABILITATION OF OFFENDERS

In my own mind the casual murderer is a person to be feared actually more than a murderer motivated by hatred. If the hatred is irrational then it is more likely that the perpetrator can be reasoned out of his hatred during a course of rehabilitation. If the hatred is rational, for example a murderer feels hatred towards cannibals, it may also be possible to persuade the offender that it is better to allow the police to deal with cannibals rather than taking the law into their own hands. A casual murderer, on the other hand, is more likely to be suffering from a psychopathic mentality, which could be extremely difficult, perhaps virtually impossible, to “cure”.

The length of sentencing should always be aimed at removing an offender from society as long as it takes to ensure the safety of the general public. It seems to me this is often not accomplished, violent offenders are allowed back into society too quickly. It also seems to me that our prison system is not as good at rehabilitating offenders as it ought to be. The disparity between sentences given for crimes deemed to be “hate” crimes and those not deemed as such seems to me to pay scant regard to the question of rehabilitation. Surely this is one of the most important functions of our justice system, to protect the general public from re-offending. First the priority should be to remove the criminal from society and then to ensure that the criminal is not released back into society until they can be judged to no longer be a risk to society.

I am not at all suggesting shorter sentences for “hate” crimes here, in fact I think in many instances that crimes not currently categorized as “hate” crimes should be given longer sentences. The sentences for violent crimes particularly should always be long enough for the public to feel certain that the offender has had time to be properly rehabilitated.

Take the case of the brutal murder of Ross Parker, who was murdered in 2001. The 3 convicted of his murder were given sentences of 16 and 18 years, so they will soon be released. However, if they had committed the crime just a few years later, they would have faced much longer sentences (a minimum of 30 years) because the crime was deemed racially motivated, and longer sentences applied for such “hate” crimes after 2005. If we cannot be sure such murderers no longer pose a danger to society after 16 or 18 years, why on earth should we assume the case would be different if this brutal murder had not been deemed racially motivated? (1)

THE PROBLEM OF CATEGORIZATION

It seems that in the UK there is some confusion about exactly what should constitute a hate “incident”. The confusion has led to different police forces in the UK categorizing hate “incidents” differently (2). Hate incidents are not necessarily classified as hate crimes, the concept of the hate “incident” is designed for reporting purposes.

When it comes to the law, hate crimes against certain groups are not categorized as hate crimes, according to the UK’s Citizen’s Advice Bureau (2):

“Incidents which are based on other personal characteristics, such as age and belonging to an alternative subculture, are not considered to be hate crimes under the law. You can still report these, but they will not be prosecuted specifically as hate crimes by the police and the Crown Prosecution Service.”

So if say a hipster is violently attacked and there is evidence that the attack was inspired by hatred of hipsters, this will NOT constitute a hate crime. Therefore the attackers will be given a shorter sentence than if they had been attacking a gay person because the person was gay.  Surely this disparity in sentencing is tantamount to state discrimination against hipsters. It seems to me that trying to apply a vague subjective notion such as hatred in law is bound to lead to some degree of confusion.

MINOR OFFENCES

What about the relatively minor offences such as threatening behaviour that is motivated by hate? Still here we have the problem that when evidence of the hatred is not present, the threatening behaviour may still be motivated by hate.

If someone is threatened for example for the way they dress then they may become prone to fear of venturing out of doors, especially if they feel that the hatred behind the threats is widespread in the area in which they live. For example a non-Muslim woman may find it difficult to wear Western dress such as T-shirt and tight-fitting jeans in a Muslim area. However, effectively trying to criminalize the cultural attitudes of an entire community is going to be very hard to enforce. Hatred can be expressed in subtle ways, such as hostile stares.

If a Jewish person arrives home to discover that someone has drawn a swastika on their front door, with the words “Jews go to hell” scrawled beneath it, then clearly they are going to find this threatening. Such graffiti should clearly be deemed much more serious than if the graffiti were to say something harmless such as “Bozzer woz ere”. It might make more sense however to regard the threatening graffiti as a form of threatening behaviour, rather than complicating the justice system with an extra law against “hate” crime.

Death threats are already covered separately as well in UK law. Should a death threat be deemed less serious for example if it is made against a witness in a trial, compared with a death threat made against a person for following a particular religious sect?

MINOR PUBLIC ORDER OFFENCES AND FREEDOM OF SPEECH

There is a huge danger that when the concept of “hate” crime is applied to certain minor offences that this will infringe on one of our most important liberties, namely freedom of speech.

According to the UK’s Citizen’s Advice Bureau (CAB) a hate incident includes (2):

  • “displaying or circulating discriminatory literature or posters”
  • “online abuse for example on Facebook or Twitter”

However, exactly what constitutes a “hate” incident is left up to the “Victim” to decide:

“This means that if you believe something is a hate incident it should be recorded as such by the person you are reporting it to. All police forces record hate incidents based on these five personal characteristics.”

The followers of a religion might decide that any criticism of their religion is hateful. Thanks to the above advice, they are encouraged to report it to the police, who will be forced to record such criticism as a hate incident, even if the police don’t perceive it as such themselves. The police might even feel obliged to then charge the writer for example of Facebook or Twitter posts that have been deemed hateful by the “victim”.

The UK already has a very vague law called the Communications Act 2003 which criminalizes any communications deemed “grossly offensive”, a very subjective concept. The combination of this above advice on “hate crime” with the already vague law about communications should therefore be seen as a very serious threat to freedom of speech in the UK. Always remember that the threat of being charged with an offence can act as a deterrent even if such a charge was unlikely to lead to a conviction. Court cases damage people’s lives, not just in terms of time lost but also in terms of damaged reputations.

COMPLICATING THE JUSTICE SYSTEM

Society may have varying perceptions of which kinds of hatred are more or less justified over time. Taking account of precedents may become more difficult due to this. This may affect judgements or cause judges to take longer to reach decisions leading to the prolonging of court cases.

Equality before the law is hugely important for a fair system of justice, I simply do not believe it is possible to have such equality if the law is open to subjective interpretation. It is also likely to bog the police and justice system and our society more generally down in arguments about whether this or that judgement was fair, after a trial is concluded. Court cases are likely to be prolonged, and more likely to be challenged by appeals after sentencing against the length of sentencing.

AN ALTERNATIVE APPROACH TO COMBATING HATRED

Instead of seeking increased sentences for “hate crime”, we should aim for prevention rather than cure, by encouraging rational debate and dialogue in society when hatred of a particular group appears to be on the rise. Open debate, dialogue and honesty are far more likely to combat the rise of such hatred. We might even discover through such debate that some such hatred is actually entirely well founded. For example, through such debate it might be discovered there are aspects of a particular religion that inspire hatred against those who are not members of the religion. Hatred of that particular religion by those who were not members would then be revealed to be well founded. Better to continue to allow the questioning of such religious beliefs, and to continue to protect from harm those who dare to question such beliefs.

CONCLUSIONS

I personally believe that giving different lengths of sentences for crimes perceived to be motivated by hatred is a fundamentally bad idea.

Surely the application of “hate” crime sentencing is bound to lead to discrimination in the justice system. Hatred is merely a thought process, it may well be present even when there is no evidence of it. Such sentencing may even increase the very hatred it is designed to combat, in cases where the sentencing is perceived to have discriminated against one group or another.

I therefore call for the repeal of the Racial and Religious Hatred act in the UK, and other similar laws in other countries. These laws simply cannot be applied fairly, and create an environment where various forms of injustice and discontent can flourish. As long as these laws exist, equality before the law is endangered. Last but not least, such laws endanger freedom of speech. Let us combat hatred with dialogue and debate instead.

[Please note I am writing from a layman’s perspective, if anybody with legal knowledge wants to dispute any of the points I raise here, I would be particularly interested to hear from them. More general feedback is always welcome as well of course.]

REFERENCES:

(1) http://www.peterboroughtoday.co.uk/news/environment/ross-killers-fail-in-bid-to-have-sentences-cut-1-93471

(2) https://www.citizensadvice.org.uk/discrimination/hate-crime/what-are-hate-incidents-and-hate-crime/

FURTHER READING:

https://en.wikipedia.org/wiki/Hate_crime#Support_and_opposition_to_hate_crime_laws

https://en.wikipedia.org/wiki/Murder_of_Ross_Parker

http://webarchive.nationalarchives.gov.uk/20110218200720/http://www.hmcourts-service.gov.uk/cms/144_13296.htm

http://www.peterboroughtoday.co.uk/news/environment/court-ross-was-killed-by-a-hunting-party-1-56919

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