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A Comparative Analysis of Hate Crime Legislation

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A Comparative Analysis of Hate Crime Legislation A Report to the Hate Crime Legislation Review James Chalmers and Fiona Leverick University of Glasgow, July 2017 i A Comparative Analysis of Hate Crime Legislation: A Report to the Hate Crime Legislation Review July 2017 CONTENTS INTRODUCTION ________________________________________________ 1 1. WHAT IS HATE CRIME? ________________________________________ 4 2. HATE CRIME LEGISLATION IN SCOTLAND __________________________ 7 3. JUSTIFICATIONS FOR PUNISHING HATE CRIME MORE SEVERELY ______ 23 4. MODELS OF HATE CRIME LEGISLATION __________________________ 40 5. CHOICE OF PROTECTED CHARACTERISTICS _______________________ 52 6. HATE SPEECH AND STIRRING UP OFFENCES _______________________ 68 7. HATE CRIME LEGISLATION IN SELECTED JURISDICTIONS _____________ 89 8. APPROACHES TAKEN IN OTHER JURISDICTIONS RELEVANT TO THE OFFENSIVE BEHAVIOUR AT FOOTBALL AND THREATENING COMMUNICATIONS (SCOTLAND) ACT 2012 ____________________________________________________ 134 ii INTRODUCTION In January 2017, the Scottish Government announced a review of hate crime legislation, chaired by Lord Bracadale.1 Lord Bracadale requested that, to assist the Review it its task, we produce a comparative report detailing principles underpinning hate crime legislation and approaches taken to hate crime in a range of jurisdictions. Work on this report commenced in late March 2017 and the final report was submitted to the Review in July 2017. Chapter 1 (What is Hate Crime?) explores what is meant by the term “hate crime”, noting that different definitions may properly be used for different purposes. It notes that the legislative response to hate crime can be characterised by the definition offered by Chakraborti and Garland: the creation of offences, or sentencing provisions, “which adhere to the principle that crimes motivated by hatred or prejudice towards particular features of the victim’s identity should be treated differently from ‘ordinary’ crimes”. Chapter 2 (Hate Crime Legislation in Scotland) outlines the principal provisions of hate crime legislation, as identified in the Review’s remit. These can be divided into two categories. First, sentence aggravation provisions, which do not create distinct criminal offences, but allow for offences aggravated by prejudice to be recorded as such and require the aggravation to be taken into account in sentencing. Secondly, substantive offences, which primarily consist of offences relating to the stirring up of racial hatred but also include offences of racially aggravated harassment and threatening communications intended to stir up hatred on religious grounds. Chapter 3 (Justifications for Punishing Hate Crime More Severely) considers the various possible justifications for treating hate crimes as more serious than parallel non-hate crimes. The possible justifications can be divided into three broad categories: harm-based justifications; culpability-based justifications; and denunciation-based justifications. Assessing the available evidence, it concludes that the argument that hate crimes are – compared to parallel non-hate crimes – more likely to cause harm both to the direct victim and to members of the group to which the victim belonged or was perceived to belong is particularly compelling. The argument that it is important to send a message to victims of hate crime that bias and inequality of treatment is roundly condemned by the State is also persuasive. Collectively, the harm argument and the denunciatory argument (and perhaps to a lesser extent the culpability argument) provide a compelling justification for punishing hate crime more severely. 1 Scottish Government, “Review of hate crime legislation”, 26 January 2017, available at https://news.gov.scot/news/hate-crime-legislation-review 1 Chapter 4 (Models of Hate Crime Legislation) considers two questions: first, how should hate crime be identified; and secondly, how should it be addressed – through substantive and distinct offences or the penalty attaching to general offences? In relation to the first question, it outlines two specific legislative models. The first is the discriminatory selection model (where a hate crime is committed where the victim has been selected because of their membership of a protected group). The second is the animus model (where the offender is motivated by, or demonstrates, prejudice against a protected group). It notes a clear preference for the animus model in legislative practice and strong arguments of principle in support. In relation to the second question, the chapter outlines three broad models: (i) the penalty enhancement model, (ii) the sentence aggravation model, and (iii) the substantive offence model, noting that jurisdictions may choose to combine these models rather than choosing one alone. It concludes by outlining the thresholds specified for a crime to count as a hate crime in a range of jurisdictions, and examines various questions about the precise formulation of these thresholds. Chapter 5 (Choice of Protected Characteristics) notes that the characteristics presently protected (in one form or another) under hate crime law in Scotland are race, religion, sexual orientation, disability and transgender identity. The chapter considers the range of characteristics protected in a range of other jurisdictions, noting that the characteristics protected in Scots law are the characteristics that are most commonly protected in the other jurisdictions analysed and that the two characteristics that are not presently protected in Scots law, but are most commonly protected in other jurisdictions, are age and sex . The chapter goes on to examine the principles which should guide a decision as to which characteristics should be protected. It notes a range of possibilities which have been identified in this respect, concluding that the most persuasive accounts are those that focus on identify groups that experience unjustified marginalisation or possess forms of difference that have a justifiable claim to respect. Chapter 6 (Hate Speech and Online Hate Crime) acknowledges that significant recent work has been carried out in relation to hate speech by the Law Commission and provides a high-level overview of the legal issues related to hate speech in a comparative perspective, including the applicability of legislation to online hate speech. It considers two questions of principle – what is hate speech, and what is the harm of hate speech? – before detailing offences relating to hate speech in a range of jurisdictions, considering both the legislative models adopted and the range of groups protected. It then outlines certain issues which arise in relation to hate speech online. 2 Chapter 7 (Hate Crime Legislation in Selected Jurisdictions) details the legislative provisions relating to hate crime in a range of jurisdictions. The jurisdictions assessed are as follows: Australia (the six states and two territories are examined separately); Canada; England and Wales; New Zealand; Northern Ireland; Republic of Ireland; South Africa and ten jurisdictions in the United States of America (the jurisdictions selected for analysis being those which expressly protect characteristics which are not explicitly protected in any of the hate crime legislative provisions discussed elsewhere in the chapter). Chapter 8 (Approaches Taken in Other Jurisdictions Relevant to the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012) examines section 1 of the 2012 Act, which is distinct because it applies only to behaviour that takes place in relation to a regulated football match. The chapter outlines the background to the Act, sets out the offences contained in section 1 and details analogous legislation in other jurisdictions including England and Wales and Northern Ireland. 3 CHAPTER 1: WHAT IS HATE CRIME? There is no single accepted definition of the term “hate crime”. One writer on the topic recounts a conversation with a British government policymaker “who lamented that even if you could lock academics in a room for six months with the task of producing a definition of hate crime, they would most likely emerge with more definitions than they had when they went in, which makes for interesting scholarly debate but is utterly useless for those tasked with actually responding to the problem of hate crime ‘in the real world’”.2 The issue is inevitably complicated by the fact that different definitions may be produced for different purposes: a definition may be useful for criminological or sociological purposes but not for practitioners and legislators.3 Even within criminal justice practice, definitions will (for good reason) vary. For example, definitions produced for recording purposes may focus on the perception of the victim or any other person as to the motivation for the offence,4 so as to ensure they are properly “victim oriented”5 and that recording is comprehensive and inclusive. In contrast, legislative definitions, setting out the conditions which must be satisfied for a criminal conviction, are likely to be narrower.6 One of the most commonly quoted academic definitions7 is Barbara Perry’s, which is in the following terms:8 Hate crime… involves acts of violence and intimidation, usually directed toward already stigmatized and marginalized groups. As such, it is a mechanism of power and oppression, intended to reaffirm the precarious hierarchies that characterise a given social order. It attempts to re-create simultaneously the threatened (real or imagined)
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