| The hate debate
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Introduction: The problem of hate crimes
and hate crimes laws
by Paul Iganski
So-called 'hate crimes', or 'bias crimes', frequently make the headlines. The bombing in May 1999 of the Admiral Duncan, a 'gay pub' in Soho, London, in which three died and scores were injured; the callous attack on the young gay man Matthew Shepard who was pistol-whipped and left lashed to a fence in freezing conditions to die later in hospital in Wyoming in October 1998; the brutal murder by white supremacists of James Byrd, who was beaten unconscious, chained to the back of a pickup truck and dragged for miles along rural roads outside the town of Jasper, Texas in June 1998; and the racist murder of black teenager Stephen Lawrence in South London in 1993: these are some of the prominent hate crimes brought before the public eye by the media. But behind these well-publicized incidents are thousands upon thousands of hate crimes that don't make the news. The volume of incidents clearly shows that hate crimes are a serious social problem and an unfortunate by-product of diverse and mobile societies. The
greater the diversity in a society, the greater the potential for such crimes.
How best to deal with hate crime offenders is also a problem. In the United States most states have laws that impose extra punishment for crimes that are motivated by hate, in excess of the usual punishment for the same crimes when motivated by other reasons. Yet such exemplary punishment has been controversial. Critics argue that it erodes a fundamental human right. It amounts to the punishment of ideas, improper thinking and opinions deemed abhorrent by government. Opponents of hate crime laws use the 'slippery slope' argument, alleging that the punishment of bigoted motives opens the door to the punishment of any out-of-favour motive.
However, supporters of hate crime laws argue that it is not opinion that is being punished, and therefore offenders' human rights are not violated. Extra punishment is meted out for the extra harms caused by hate crimes, compared with the same but otherwise motivated crimes. Hate crimes hurt the victims more, they say, and they also hurt people beyond the immediate victim. And greater punishment for greater harm is a central principle of criminal sentencing.
In stark contrast to the situation in the United States, where the issue has generated strong controversy, there has been little debate about the longest-standing British version of a hate crime law: the provisions against racially aggravated offences in the 1998 Crime and Disorder Act. That law allows more severe punishment of offences that are racially motivated as well as offences in which there is manifest racial hostility.
Britain has not yet gone as far in extending the coverage as those US states that punish offenders more severely when their crimes are motivated by prejudice against the sexual orientation, gender, disability, age or political affiliation of their victims. But British law appears to be moving in that direction.
In the wake of concern about assaults against Muslims in Britain following the terrorist attack on the World Trade Center, Britain's hate crime provisions were extended, under the 2001 Anti-Terrorism, Crime and Security Act, to cover religiously aggravated offences. These provisions addressed a loophole in British law, as Muslims are not recognized as a 'racial' group—as defined by the 1976 Race Relations Act
(1)— and hence hate crimes committed against them without
manifest racial motivation or hostility have been beyond the remit of provisions against racially aggravated offences. The new religiously aggravated offences crept in without opposition under cover of the controversy over government plans—subsequently suspended—to establish provisions against incitement to religious hatred. Critics of hate crime laws in the United States would no doubt argue that Britain has slid further down the slippery slope of the punishment of thought.
How can we understand the emergence and extension of hate crime laws in the United States and in Britain? Do hate crime laws really create 'thought crimes'? Do they punish articulated ideas and opinions? Is extra punishment the most appropriate way to deal with offenders motivated by hate?
These are the questions that are debated in the following collection of essays, a unique gathering of divergent and, in
some cases, competing opinions. The volume combines scholarship and polemic, not normally brought together in the same publication, by leading commentators in the United States and Britain drawn from the fields of civil rights activism,
criminology, journalism and law.
In bringing out The Hate Debate, the Institute for Jewish Policy Research (JPR) is aiming not to promote any particular perspective. Instead it hopes to provide, as part of its Civil Society Programme, a plurality of opinion and analysis that could inform public policy debates on both sides of the Atlantic. Judging from the number of articles in the press, scholarly journals and even websites on the topic, the
desirability of hate crime laws continues to be a highly controversial subject in the United States. But the debate seems to have reached a stalemate between opponents and supporters of the laws.
The Hate Debate offers some new thinking to take that debate forward. It also aims to generate much-needed debate in
Britain, where there has mostly been silence about the question of punishing hate-despite strong support for protecting freedom of expression, evident in the recent controversy over government proposals to create an offence of incitement to religious hatred.
The problem of hate crime Over half of the hate crimes recorded in the FBI's data for the year 2000 involved victims targeted because of their race, ethnicity or national origin, and they included sixteen murders. Police data on racist incidents in England and Wales show a much higher number of incidents than the FBI data. But a transatlantic comparison is fraught with danger. The criteria used by the FBI for defining hate crimes are far more stringent than those used by police services in England and Wales. For an incident to be reported as a hate crime by the FBI,
there must be sufficient objective facts ...to lead a reasonable and prudent person to conclude that the offender's actions were motivated, in whole or in part, by bias.(3) Police services in England and Wales collect data on racist incidents defined more broadly, as recommended by the Stephen Lawrence
Inquiry,(4) to include any incident which is perceived to be racist by the victim or any other person. Recorded incidents don't even have to be identifiable offences. But even these data understate the true extent of the problem.
Religion Sexual Orientation Ethnicity/national origin Total 4,337 1,472 1,299 911 8,063 The British Crime Survey, which annually asks a random sample of the
British population about their experiences of crime, has shown that the
estimated number of incidents considered by victims to be racially motivated far exceeds the number recorded by the police. For 1999 the British Crime Survey estimated nearly six times as many racially motivated incidents as reported in the police statistics. It also clearly indicates the scale of the problem: racially motivated incidents accounted for one in forty of
all crimes.
The problem of racially motivated crime was even worse in the mid-1990s. It is well known that crime statistics can
misrepresent criminal trends. Again, hate crime statistics are no exception.
Racist incidents recorded by police forces in England and Wales have shown a
year on year rise. But the pattern may reflect changes in police recording
practices and a greater motivation by victims to report crimes, as the British Crime Survey indicates a decline in racist incidents across the late 1990s.
The FBI data show that significant numbers of hate crime victims are
targeted because of their religion or their sexual orientation. There are no
equivalent official data for Britain. But in a poll of British Muslims by BBC
Radio's news programme Today, conducted between 2 and 11 November, in the aftermath of the destruction of the World Trade Center, 30 per cent of respondents reported perceived hostility or abuse
towards them, or a member of their family, from non-Muslims as a result of the events on September
11th.(5) Although it cannot be determined how much of the hostility was manifested as crime. Furthermore, as Peter Tatchell says in his contribution, surveys in Britain have shown that large proportions of lesbian women and gay men have been victims of homophobic hate crimes.
How serious is the problem of hate crime? It would be useful to open the hate debate by examining the scale of the problem that
hate crime laws address. But finding reliable data is a problem in itself. It is well known that official crime statistics understate the true extent of criminal behaviour. Hate crime statistics are no exception. In the United States, under the Hate Crime Data Collection Program, law enforcement agencies voluntarily submit data about hate crimes within their jurisdiction to the FBI's Uniform Crime Reporting Program. But, according to the Southern Poverty Law Center's
Intelligence Report (winter 2001) and research commissioned by the US Bureau of Justice Assistance,(2) the reporting system is full of gaping holes. Not all crimes are reported, and not all law enforcement agencies submit data. The Southern Poverty Law Center estimates the number of hate crimes to be six times greater than the number reported by the FBI.
Table 1 Hate crime incidents
by bias motivation
Race
Anti-White
Anti-Black
Anti-American Indian/Alaskan native
Anti-Asian/Pacific Islander
Anti-multiracial group
Anti-Jewish
Anti-Catholic
Anti-Protestant
Anti-Islamic
Anti-other religious group
Anti-multireligious group
Anti-atheism/agnosticism/etc
Anti-male homosexual
Anti-female homosexual
Anti-homosexual
Anti-heterosexual
Anti-bisexual
Anti-Hispanic
Anti-other ethnicity/national origin Disability
Anti-physical
Anti-mental
Multiple-bias incidents
875
2,884
57
281
240
1109
56
59
28
172
44
4
896
179
182
22
20
557
354
36
20
16
8
Source: US Department of
Justice, Federal Bureau of Investigation, Uniform Crime Reports, Hate Crime
Statistics 2000 (www.fbi.gov/ucr/cius_00/hate00.pdf)
The problem of hate crime laws
Opponents argue that hate crime laws provide extra punishment for bad values. As Melanie Phillips argues in her essay, provisions for racially and religiously aggravated offences in Britain proscribe 'certain attitudes of mind'. Furthermore, as Jeff Jacoby argues in his, hate crime laws create an 'indefensible double-standard' by proclaiming that hurting some 'kinds of people' isn't quite as bad as hurting others.
However, supporters of hate crime laws argue that they are not advocating
the punishment of expression, the thought behind the crime or the motivation.
Instead, they support greater punishment for the greater harms allegedly
inflicted by hate crimes. Those harms make hate crimes qualitatively different from the same crimes motivated by other reasons. From this perspective the motives or the words of the perpetrator are only relevant as an indicator of the type of act committed, not as the basis for punishment.
In his essay Frederick Lawrence argues that hate crimes hurt more than parallel, otherwise motivated, crimes. This notion has firmly taken root in the defence of hate crime laws. It has been highly influential and was a key argument in the landmark case of
Wisconsin v. Mitchell (113 S. Ct. at 2201 [1993]) that settled the constitutional questions about hate crime laws in the United States.
But how do hate crimes hurt more? Exactly what is the nature of the harms inflicted? I address these questions in my essay, arguing that there are few circumstances in which the harms allegedly inflicted by hate crimes don't amount to revulsion at the offender's motivations. Should supporters of hate crime laws then stand by their principles and honestly declare that their objective is to punish offenders for their bad values, values incongruent with civil society?
There are other important questions addressed by The Hate Debate. Not all states in the US have enacted hate crime laws that cover all the categories of victims included in the FBI's hate crime statistics. Similarly in Britain, hate crimes in which victims are singled out because of their sexual orientation, for instance, are not subject to the same legislative provisions that
apply to racially and religiously aggravated crimes. By such omissions, don't hate crime laws create new injustices? Once established, shouldn't the law be broadened, as Peter Tatchell argues in his contribution, to encompass hate crimes affecting all vulnerable communities? Yet such logic does not necessarily win the argument for legislation. As Valerie Jenness shows in her essay, the enactment of hate crime law is contingent upon the interplay between social movement activism, political expediency, prevailing legal culture and the impact of critical events, as well as arguments for social justice.
Penalty enhancements first established by
the Act for racially aggravated offences: The question of the value of punishment, as against other interventions, for hate crime offences is also addressed by
The Hate Debate. Jack Levin, in his contribution, observes that the great majority of hate crimes are committed not by members of organized hate groups, but by those he calls 'dabblers in hate'. Furthermore, he argues that the actions of perpetrators are sanctioned by others in the wider community who sympathize with bigotry, and also by those who are passive bystanders in the face of its demonstration. This raises questions about the appropriate ways of tackling hate. Similarly, Larry Ray and David Smith argue in their essay, which draws on research into convicted perpetrators of racist crimes, that such crimes are best understood not by focusing on the intent or the motives of offenders, but by examining the cultures of racism and violence within which racist offending takes place.
In acknowledging the social context in which hate crimes are committed, it is important to ask, as Elizabeth Burney does, whether the courts are always the right place for dealing with
hate crimes? Prosecution, in Elizabeth Burney's view, should be part of a varied, holistic and vigorous policy of confronting bigotry that, in her words, 'is appropriate to the situation and feelings of the victim'. Are the courts, then, the right place for dealing with hate?
Notes 1 See Sukhwinder S. Chokar and Kuljeet S. Dobe,
'Muslims, ethnicity and the law'. International Journal of
Discrimination and the Law, vol. 4, 2000, 369-86. 2 Center for Criminal Justice Policy Research, College of
Criminal Justice, Northeastern University, Boston, and the
Justice Research and Statistics Association, Washington,
DC, Improving the Quality and Accuracy of Bias Crime
Statistics Nationally, An Assessment of the First Ten Years of Bias Crime Data Collection, report submitted to the
Bureau of Justice Statistics, US Department of Justice,
September 2000 (http://www.dac.neu.edu/cj).
3 Federal Bureau of Investigation, Hate Crime Data Collection Guidelines, Washington, DC: Federal Bureau of
Investigation, US Department of Justice 1999, 4-6
(http://www.fbi.gov/ucr/hatecrime.pdf).
4 Sir William Macpherson, The Stephen Lawrence Inquiry:
Report of an Inquiry by Sir William Macpherson of Cluny (Cm 4262-1), London: The Stationery Office, 1999, re- commendations 12-14, 328-9.
5 Robert Aitken, 'British Muslims oppose military action'
(http://www.bbc.co.uk/radio4/today/reports/features/muslimpoll.
html).
Sources: 1988 to 1996-7 data taken from
Racial Violence and Harassment. A Consultation Document, London: Home Office
1997 (www.homeoffice.gov.uk.rvah.htm)
1997-8 to 1999-2000 data taken from Statistics on Race and the Criminal
Justice System, London: Home Office 2000 (www.homeoffice.gov.uk/rds/pdfs/s95race.pdf)
Is it just for offenders who commit a violent assault because of prejudice against their victim to be punished more severely than other offenders who commit the same assault just for the hell of it? Take two people, both beaten bloody, lying on the
ground. Tell one of them: 'We're going to take the crime against you less seriously than the crime against the person next to you because of what was in the mind of his attacker.' Many people would find such an idea offensive. But that is the principle behind hate crime laws in the United States and in Britain.
Crime and Disorder Act 1998
Racially-aggravated offences: England and Wales
Section 28. An offence is racially aggravated if
(a) at the time of committing the offence, or immediately before or after
doing so, the offender demonstrates towards the victim of the offence
hostility based on the victim's membership (or presumed membership) of a
racial group; or
(b) the offence is motivated (wholly or partly) by hostility towards members
of a racial group based on their membership of that group.
Existing offence
Maximum penalty for basic offence
Maximum penalty for racially aggravated
offence
Common assault
6
months and/or a level 5 fine(£5,000)
2
years imprisonment and/or an unlimited fine
Assault occasioning actual bodily harm
5
years imprisonment
7
years imprisonment
Malicious wounding
5
years imprisonment
7
years imprisonment
Criminal damage (section 10 years imprisonment 14 years imprisonment
1(1) Criminal Damage Act 1971)
10
years imprisonment
14
years imprisonment
Section 5 Public Order Act 1986; disorderly behaviour
Level 3 fine
(£l ,000)
Level 4 fine (£2,500)
S.
4A Public Order Act 1986: intentional harassment
6
months and/or a level 5 fine (£5,000)
2
years and/or an unlimited fine
S.
4 Public Order Act 1986:threatening behaviour
6
months and/or a level 5 fine (£5,000)
2
years and/or an unlimited fine
S.
2 Protection from Harassment Act 1997: harassment
6
months and/or a level 5 fine (£5,000)
2
years and/or an unlimited fine
S.
4 Protection from Harassment Act 1997: fear of violence
5
years and/or an unlimited fine
7
years and/or an unlimited fine
As amended by the Anti-Terrorism, Crime and Security Act 2001 (Section
39)
An offence is racially or religiously aggravated if
(a) at the time of committing the offence, or immediately before or after
doing so, the offender demonstrates towards the victim of the offence
hostility based on the victim's membership (or presumed membership) of a
racial group or religious group; or
(b) the offence is motivated (wholly or partly) by hostility towards members
of a racial or religious group based on their membership of that group. In
this section 'religious group' means a group of persons defined by reference
to religious belief or lack of religious belief.
Notes on contributors
Elizabeth Burney is Senior Research Associate at Cambridge University's Institute of Criminology. During a varied research career she has published books on race and housing; lay magistrates; youth court sentencing; as well as a critique of social landlords' methods of controlling crime and disorder. Recently she completed research for the Home Office on the use of racially aggravated offences legislation. She is on the council of the Howard League for Penal Reform, a victim support volunteer and a Fellow of the Royal Society of Arts.
Paul Iganski is a lecturer in sociology and criminology at the University of Essex, England, and Civil Society Fellow at the Institute for Jewish Policy Research, London. He is also a visiting scholar at the Brudnick Center on Violence and Conflict at Northeastern University, Boston. He has carried out research and published articles on hate crime laws in the United States and Britain, racial stratification, and equal employment opportunity policies. He is co-author (with David Mason) of Ethnicity and Equality of Opportunity in the British National Health Service (2002).
Jeff Jacoby is an award-winning columnist for the Boston Globe. His articles on hate and hate crimes include 'Why this death didn't count' (9 December 1999), '1999: The year in liberal hate speech' (30 December 1999), 'Banned in Boston' (6 April 2000) and 'Hate crimes laws send a terrible message' (22 June 2000).
Valerie Jenness is chair of the Department of Criminology, Law and Society and an associate professor at the University of California, Irvine. Her research focuses on the links between deviance and social control (especially law), gender, and social change (especially social movements). She is the author of three books: Making Hate a Crime: From Social Movement to Law Enforcement Practice (2001), Hate Crimes: New Social Movements and the Politics of Violence (1997) and Making it Work: The Prostitutes' Rights Movement in Perspective (1993). She has also published numerous articles on the politics of prostitution, AIDS and civil liberties, hate crimes and hate crime law, the gay/lesbian movement and the women's movement in the United States.
Frederick M. Lawrence is Law Alumni Scholar and Professor of Law at the Boston University School of Law. Previously he was an Assistant United States Attorney for the Southern District of New York and served as Chief of the Civil Rights Unit of that office in the mid-1980s. Professor Lawrence was awarded an Inns of Court Fellowship in 1996 at the Institute for Advanced Legal Studies in London and a Ford Foundation Grant in 1998 and 1999 for the study of racially motivated crimes under British law, and during the spring 2001 semester was a Senior Honorary Research Fellow at University College London. He is the author of Punishing Hate: Bias Crimes under American Law (Harvard 1999).
Jack Levin is the Brudnick Professor of Sociology and Criminology at Northeastern University, Boston, where he directs the Brudnick Center on Violence and Conflict. He has written a number of books on hate and violence including The Functions of Prejudice (1982), Hate Crimes: The Rising Tide of Bigotry and Bloodshed (1993) and The Violence of Hate: Confronting Racism, Anti-Semitism, and Other Forms of Bigotry (2001).
Melanie Phillips is a social commentator whose columns have appeared in the Guardian, Observer, Sunday Times and now the Daily Mail. She is also the author of All Must Have Prizes (Warner), The Sex-Change Society (Social Market Foundation) and America's Social Revolution (Civitas). A selection of her writing can be found at www.melaniephillips.com.
Larry Ray is Professor of Sociology at the University of Kent, where he has worked since 1998. In addition to the research described in his article he has worked extensively on political reconstruction and problems of ethnicity and nationalism in post-Communist societies. He is currently working on a project examining experiences of harassment and support networks among ethnic minorities in the Canterbury area.
David Smith has been Professor of Social Work at Lancaster University since 1993. His research interests are criminology and criminal justice, and he often works with offenders. He has recently published the reports Working with Persistent Juvenile Offenders and Witness Support in Scotland for the Scottish Office. He is a former probation officer and uses criminological research to promote socially inclusive and re-integrative policies and practice with regard to offenders.
Peter Tatchell is a journalist, author,
broadcaster and campaigner on gay and other human rights issues. For more than
thirty years he has been confronting and shaming homophobic presidents,
archbishops, police chiefs, generals and prime ministers. For more details, see
his website www.petertatchell.net.