THE ROLE OF LAW IN HATE CRIME AND DISCRIMINATION AGAINST MARGINALIZED COMMUNITIES

This article is written byKanika Arora of 4^th Semester of Delhi Metropolitan Education

Abstract

Hate

The word “hate” is not always accurate. The word “hate” does not refer to passion, anger, or general distaste when it is used in a hate crime law. The term “hate” here refers to prejudice against individuals or groups who possess certain legally specified traits.

Hate crime legislation at the federal level covers offenses committed based on the victim’s real or perceived race, color, religion, national origin, sexual orientation, gender, or disability.

The majority of state hate crime statutes cover offenses based on race, color, and religion; many additionally cover offenses based on sexual orientation, gender, gender identity, and disability.

Crime

In cases of hate crimes, the “crime” is frequently a violent one, like an attack, murder, arson, vandalism, or a threat to conduct one of these crimes. It may also include arranging for someone else to commit a crime or soliciting them to do so, even if the crime was never committed.

Keywords:

 Race, Colour, Gender, Disability, Gender Identity, Sexual Orientation, Attack, Murder, Arson

Introduction

Hate crimes are cruel expressions of prejudice and have a profound impact on both the victim and the group they identify with. Social stability and community cohesion are impacted. For both individual and collective security, a strong response is therefore essential.

The motive of the offender distinguishes hate crimes from other types of crime. The underlying motivation behind a crime is rarely thoroughly investigated because it is typically unrelated to proving the fundamental elements of a crime. If a criminal justice system doesn’t employ the term “hate crime,” the motivation isn’t acknowledged as a crucial component of the offense, and the presence of hate crimes will consequently remain hidden.

Although several state laws have been implemented to address hate crimes, these crimes still occur and have a profound impact on the victim as well as the community in which they occurred. The harm done by hate crimes can be reduced if law enforcement, prosecutors, and courts are properly prepared to recognize and address these crimes.

An act of hatred is what?

Hate crimes are criminal acts committed with prejudice in mind. This viewpoint allows for the distinction between hate crimes and other types of crime. Hate crime is not a single, isolated me. It could be an act of violence, a threat, damage to property, an attack, a murder, or some other type of crime.

Therefore, “hate crime” or “bias crime” refers to a kind of crime rather than a specific violation under the penal law. A person may commit a hate crime in a country without specific criminal penalties due to bias or prejudice. The term does not have a legal definition; rather, it describes a notion.

Hate crimes always involve two components: a crime committed with bias and a Motive.

The first element of hate crime is the commission of an act that creates an offense under fundamental criminal law. This criminal offense has been referred to as the “base offense” in this guide. Despite minor differences, all legal systems have a common set of core standards that make some types of heinous conduct illegal. As a result, there are some distinctions in the kinds of behavior that add up to wrongdoing. A fundamental offense must always have occurred for there to be a hate crime. There cannot be a hate crime if there is no fundamental offense.

The execution of the criminal act with a particular mental process—referred to in this manual as “bias”—is the second element of hate crime. The element of bias cognition that distinguishes hate crimes from other types of crime is this one. This suggests that the offender purposefully chose the victim of the violation based on some secure trait.

Hate crimes are committed with the intent of intimidating the target and the victim’s community due to the victim’s unique personal traits. Such acts have the effect of depriving the victim’s right to full engagement in society by leaving the harmed person with the perception that they are not wanted. Additionally, they give the idea to those from the network who share the trademark that they may also be targets and lack a place in society. Because of this, hate crimes can destroy communities and hurt society as a whole.

Hate or Bias?

The terms “hate crimes” and “hate motive” might be misleading when used literally. For instance, although though murders frequently have a hateful motivation, they are not categorized as “hate crimes” unless the victim was chosen deliberately because of a protected characteristic.

On the other hand, misbehaviour that is committed despite the perpetrator’s lack of “hate” for the specific unfortunate victim might still be classified as a hate crime. The majority of hate crimes may not effectively portray hatred, which is an incredibly distinct and intense emotion.

Here are some of the motives stated below for committing hate crimes:

• The perpetrator may act inexplicably for a variety of motives, such as hatred, jealousy, or a desire for social acceptance;
• They may not feel any feelings of attraction or repulsion towards the specific victim of the crime but may be threatening feelings towards the group to which the victim belongs;
• They may feel animosity towards everyone who is outside of or does not belong to the group to which they identify themselves; or even at an even more extreme level.

Why have legislation against hate crimes?

Hate crimes are typically not handled properly if they are treated like other crimes and are not seen as an exceptional classification. This can show up in a variety of ways, such as professionals doubting the victim or failing to adequately investigate claims of biased motive; investigators limiting the offense when choosing charges; and courts failing to apply their forces to increase sentences to reflect the motives of the culprit. Hate crimes are a violent manifestation of prejudice, which can be endemic in the larger community. They do not happen in a vacuum.

Several trends can be seen in cases of subpar investigations, prosecutions, and punishments for hate crimes. When a crime is committed against someone who is a member of a stigmatized group (for instance, if the group is frequently associated with criminal activity), this might affect the victim the blame during the investigation. It only takes a few numbers of such incidents for the impacted communities to lose faith in law enforcement officials’ handling of the situation. In contrast, such open affirmation reassures the victim that their experience has been accurately perceived when the prosecution and punishment evaluate the biased motive. This can encourage confidence among various network members that hate crimes will be prosecuted. The legalization of hate crimes is crucial for influencing networks, can help in building confidence in the criminal justice system, and can therefore mend societal rifts.

Practical justifications

Adopting legislation against hate crimes may have significant practical effects. Ideally, legislation is enacted after a certain amount of debate among members of the government, experts in law enforcement, and members of society at large. This puts the issue at the forefront and sheds light on the severity and kind of the crimes. This will increase awareness of and responses to hateful wrongdoing throughout the path to enactment. Once approved, the execution of a hate crime law involves skillful planning that improves the knowledge and skills of police, detectives, and judges. This leads to more effective criminal justice responses to hate crimes.

The likelihood of affected networks increases with an enhanced criminal equity response. This elicits information and involvement from networks that may be wary of the police in some way. More investigations are now being conducted about hate crimes as well as into other problems for which the police require network assistance. Activism in this way broadens awareness and encourages greater analysis, which leads to more effective action and stronger police-community relations.

Theoretical justifications

First, society’s dismissal of crimes based on bias can and should be demonstrated using the representative assessment of the law. The creation of laws against hate crimes is a revolutionary expression of how society views certain misdeeds as particularly heinous and deserving of harsher punishment.

Second, the harm done is punished by the law. As previously said, hate crimes have a greater negative impact on the victim than regular crimes. They also have an impact on other people who belong to the victim’s group. Thus, the additional harm caused to the offender and the community serves as justification for longer terms.

Third, laws against hate crimes punish the culprit more severely.  The crime is more authentic than it would be if the offender hadn’t had a motivation for committing it. Criminal law frequently necessitates the expansion of consequences for actions that are combined based not on their outcome but rather on the intent of the perpetrator. Therefore, this argument assumes that the perpetrator intentionally causes lopsided injury or that they are careless about the possibility of causing further pain.

Are Laws Against Hate Crime Discriminatory?

Some opponents of hate crime legislation claim that they are oppressive because they protect some groups more than others. This is not the circumstance. Even though hate crimes often target members of minority communities, they can also target larger social networks.

• The offenders can belong to a minority group.
• The target might have been chosen because they are a member of the majority group. Members of various minority groups may make up both the perpetrator and the target.

According to the principle of equality under the law, regulations against hate crimes shouldn’t and shouldn’t favor one group over another. For instance, if an anti-hate crime statute includes ethnicity as a trait, it does not necessarily refer to a particular one; under such a rule, a tragic victim may be of any ethnicity, even the majority one.

Key Policy Questions while Creating Legislation

The legislators had several questions, and each one of these policy questions included a description of the problem and a recommendation for how to address that crime.

The following inquiries were put forth:

• First Policy Question: Should the law function as an additional punishment for already committed offenses or as a new substantive offense?
• Policy Question 2: What qualities ought to be written into the law?
• Third policy question: How should the legal definition of motive be written?
• Fourth Policy Question: How should associations, affiliations, and perception errors be handled?
• Fifth Policy Question: What proof and how much justification are required?

Question 1: Should the law work as an increase in punishment for already committed offenses or as a new substantive offense?

A distinct offense called a “substantive offense” has a biased motive as a key component of its legal definition.

It is also possible to create a statute against hate crimes by using penalty enhancements, which are occasionally referred to as “aggravating sentencing clauses” or “aggravating circumstances clauses.” In essence, they raise the fine for a fundamental offense when it is presented with prejudice. The subject of a biased thought process is typically considered when the wrongdoer is condemned, which happens when punishment enhancements are used to deter hate crimes. In a sense, the court should first consider whether the wrongdoer is guilty of the basic offense, and only then should it consider if there is sufficient evidence of prejudice to impose a sentence enhancement. This will be at the condemning stage in areas under customary law. In common law doctrines, establishing guilt and passing judgment are not distinct steps, and the judge will consider the demonstration of how the judge’s thought process affected the verdict as a crucial component of a process akin to this. Enhancements to penalties may be both broad and specialized.

General penalty enhancements are described as enhancement measures that encompass nearly all criminal acts and apply to a wide range of criminal charges.

Specific enhancements to penalties – Specific enhancements to penalties are only applicable to some specific types of criminal acts.

Question 2: Which attributes ought to be protected by the law?

All laws against hate crimes define guaranteed characteristics, although different states guarantee different characteristics. All statutes against hate crimes should include “race” as an assured category. Some of them include categories, such as “sex,” “sexual orientation,” and “disability.” Less frequently, certain laws against hate crimes protect traits like “education,” “profession,” “political affiliation,” and “ideology.”

One of the most important aspects of laws against hate crime is the selection of protected characteristics. There is no definitive answer as to which characteristics should be included, although they are often those that are evident or observable to others and are thus more effectively emphasized by wrongdoers. Regarding each state’s needs, a decision must be made.

The most frequently protected qualities are those related to “race”, “national origin,” and “ethnicity,” with religion coming in second. When hate crime laws were first developed, these traits were recognized.

Additionally, some rigid organizations may be portrayed in terms of “race” as well, and a person may be taken advantage of based on more than one secured trademark. For the sake of certainty, the offender must not distinguish between the “race” and the “religion” of his or her victim.

The Most Frequently Protected Features

• Race

“Race” is a social construct without a foundational notion of logic. Due to its ambiguity, the term “race” can also make it difficult for courts and law enforcement to interpret it. As a result, it is preferable to use other phrases when drafting legislation, such as “family line,” “national root,” or “ethnicity.” Although several international organizations and several states currently refrain from using the word “race,” the use of comparable phrases, As an illustration, “racism” and “racial discrimination” still exist.

• Nationality, ethnicity, and place of origin

An “ethnic group” is defined as a collective within a broader population that has genuine or imagined common ancestry, memories of a shared past, and a social focus on at least one representative component that characterizes the group’s identity.” National source” is occasionally used to denote “citizenship,” but it can also represent social ties to a national group that may be associated with a state different than the one in which the person resides, or even with no state at all.

• Nationality

The legal connection between a person and a country is referred to as “nationality,” which is distinct from an individual’s ethnic background. Citizenship or a state-granted legal status is frequently implied by the term “nationality.” Although “nationality” and “national origin” are sometimes used interchangeably, the former term refers to the legal relationship between a state and an individual, whilst the latter term refers to the individual’s ethnic or social origin.

• Religion

Legislation against hate crimes that uses religion as a hallmark should protect people of all faiths as well as those who don’t practice any particular religion. In actuality, certain laws that promote hatred imply that “religion” also refers to a lack of religious conviction. Thus, non-believers or atheists are safeguarded.

Question 3: What constitutes a motive—hostility or discrimination?

• The language used while crafting a statute against hate crimes may be crucial in determining whether certain offenses qualify as hate crimes. It’s possible that many states didn’t purposefully choose either approach when they wrote their legislation. The impact that the choice of model may have on investigative and prosecutorial resources should also be given top importance.
• The Model of Hostility

According to the hostility model, the offense had to have been done in response to hostility or disdain based on one of the guaranteed traits. A resolution that demands evidence of a guilty party’s bigoted or hostile intention may be consistent with the popular understanding of what constitutes a hate crime, but it may also present barriers to use. Whether someone truly feels “hate” is a very abstract question that might be challenging to prove in a formal courtroom. The issue is made worse by the fact that no other criminal charges include the requirement of rationality verification as a part of the offense.

• The Model of Discriminatory Selection

In the discriminatory selection model, the offender deliberately singles out the victim due to a protected trademark, but no actual contempt or animosity is required to prove the crime. The biased decision category would include a perpetrator who assaults a settler believing the outsider is less likely to call the police and report the crime. Another example of prejudiced determination misconduct would be a guilty party attacking a gay guy because “gay-slamming” is common in his friend group and will improve his standing and recognition among friends.

Question 4: Issues involving association, affiliation, and (misperceptions)

Some crimes are committed against someone because of their membership in a particular group. This connection may manifest as membership in or affiliation with a particular meeting. On the other side, it may manifest as a partnership with someone from a particular group, like in a personal connection, a group, or a marriage. The right to affiliation and the right to respect one’s private life is protected by international and local laws.

Relationships and affiliations

Some people disapprove of the idea that those who are wrongfully exploited are chosen not because they possess a certain particular trait but rather because of their connections to those who do.

Sense-related Errors

Incorrect assumptions about the victim’s membership in a certain group may also lead an offender to choose the victim. There was a spike in “backlash” crimes committed against Muslims after the terrorist attacks of September 11, 2001.

Question 5: How much motive is required and what kind of evidence is needed?

Similar to every other criminal offense, the availability of evidence will determine whether charges will be filed under a particular provision of the penal code. Whether or not to press charges for hate crimes depends on whether or not there is sufficient evidence to show the biased intention. A final decision will be influenced by the concept of the wrongdoer, the character of the legal requirement examination, and any sacred or statutory provisions regarding the proof.

In addition to typical difficulties in explaining the cognitive process, hate crimes frequently raise unique problems with mixed reasoning. A mixed intention suggests that the offender may have had multiple motivations for their actions. Even if there is a well-known genesis for “typical” hate crimes, in which the perpetrator is motivated solely by hatred for the unfortunate victim’s group, there are occasions when the motivations behind hate crimes are undeniably increasingly perplexing. According to research, many motivations are typically found in hate crimes. “Frequently, perpetrators are more strongly or equally impacted by situational factors than by their attitudes towards the objective group (including social norms that identify particular groups as suitably exploited persons).

Conclusion

The fundamental problem is that the hatred motivation needs to be explicitly recognized and rejected when criminal proceedings are brought. Occasionally, when cases of hate crime are described, the motivation for the victim’s selection (such as the victim’s “race,” “nationality,” or “ethnic origin”) is never mentioned. The chance and capacity for the offender’s punishment to deter others are gone in the unusual case that this occurs. The danger is that the message to the offender and the individual in question is that the state doesn’t genuinely recognize the hatred intention that motivated the wrongdoing.

References

1.  Accessed July 20, 2023. https://www.osce.org/files/f/documents/3/e/36426.pdf.

2.  Advocacy, Legislation & Issues. Accessed July 20, 2023. https://www.ala.org/advocacy/intfreedom/hate.

3.  ipleaders. Accessed July 20, 2023. https://blog.ipleaders.in/hate-crimes-nature-ideology-behind-making-laws-connected/.