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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

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.

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.

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 Religion Anti-Jewish Anti-Catholic Anti-Protestant Anti-Islamic Anti-other religious group Anti-multireligious group Anti-atheism/agnosticism/etc  Sexual Orientation Anti-male homosexual Anti-female homosexual Anti-homosexual Anti-heterosexual Anti-bisexual Ethnicity/national origin Anti-Hispanic Anti-other ethnicity/national origin Disability Anti-physical Anti-mental Multiple-bias incidents Total	4,337 875 2,884 57 281 240 1,472 1109 56 59 28 172 44 4 1,299 896 179 182 22 20 911 557 354 36 20     16 8 8,063
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 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.

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)

The problem of hate crime laws

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.

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.
 

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. Penalty enhancements first established by the Act for racially aggravated offences: 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.

 

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. [back]

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). [back]

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). [back]

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. [back]

5 Robert Aitken, 'British Muslims oppose military action' (http://www.bbc.co.uk/radio4/today/reports/features/muslimpoll. html). [back]

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Sections available in hard copy only

2. Contours of hate crime politics and law in the United States Valerie Jenness
3. Racial violence on a 'small island': bias crime in a multicultural society Frederick M. Lawrence
4. Some people are more equal than others Peter Tatchell
5. Hatemongers, dabblers, sympathizers and spectators: a typology of offenders Jack Levin
6. Hate crime, violence and cultures of racism Larry Ray and David Smith
7. The uses and limits of prosecuting racially aggravated offences Elizabeth Burney
8. Punish crime, not thought crime Jeff Jacoby
9. Hate crime: the Orwellian response to prejudice Melanie Phillips
10. Hate crimes hurt more, but should they be more harshly punished? Paul Iganski