| Much of the current
global debate around 'hate crimes' legislation
is focused on the pragmatic and logistical difficulties
of winning support for, and enacting, legislation.
This paper takes a step back from the day-to-day
issues of hate crimes and begins to unpack some
of the philosophical underpinnings of the hate
crime category. This is undertaken through an
investigation of the coherence of hate crimes
definitions and their policy implications.
A hate crime law seeks to treat a crime, if it
can be demonstrated that the offence was a 'hate
crime', differently from the way it would be treated
under ordinary criminal law. Attempts have been
made to reach a definition of a hate crime, including
that it is a crime, most commonly violence, motivated
by prejudice, bias or hatred towards a particular
group of which the victim is presumed to be a
member. As such, hate crime is generally directed
towards a class of people; the individual victim
is rarely significant to the offender and is most
commonly a stranger to him or her. (Mason 1993,
adopted by Cunneen, Fraser and Tomsen 1997b) This
definition emphasizes the closely related factors
of perpetrator motivation and the targeting of
a group. Hate crimes are said to occur against
targeted groups because the perpetrators harbor
prejudice, bias or hatred towards that group,
with the particular individual victim being selected
arbitrarily. But other contributors to the debate
emphasize an additional factor that characterizes
a hate crime. They argue that the targeting of
a group produces different and greater consequences,
in comparison with other crimes, in terms of the
person/s it victimizes. This is because the effects
of a hate crime are felt both by the individual
victim and by the group to which that individual
is perceived to belong. A hate crime conveys messages
of hate and the condoning of violence against
those at whom the hate is directed. These features
are said to exhibit uniquely in hate crimes when
compared with other violent crimes.
The purpose of hate crimes legislation, then,
is to try to address the motivation and targeting
of, or the condoning of violence against, target
groups by providing for an altered institutional
response on the part of the police, the judiciary,
the courts and/or criminologists. The kinds of
responses, which may be enhanced in recognition
of the motivation and targeting aspect, include
monitoring, the collection of statistical data
and community education campaigns. The kinds of
responses, which may be enhanced in recognition
of the consequences of hate crime, include widened
opportunities for prosecution and lengthening
of sentencing norms.
Anti-Gay And Lesbian Hate Crimes
From 1989 to 1994, 19 gay men were murdered in
New South Wales (NSW) in crimes identified as
motivated by hatred of homosexuals (NSWADB 1994).
Taking a slightly different time period from 1986
to 1996, the figure recorded by NSW police was
31 murders (Tomsen 1997). The NSW Streetwatch
report documented 67 cases of violence against
gay men and lesbians from 1990 to 1994, and concluded
that 'those who are bashed are selected because
they are suspected of being gay or lesbian' and
that 'this crime is hate-based' and accompanied
by 'anti-gay/lesbian verbal abuse' (NSWADB 1994).
In a similar report into anti-lesbian violence,
The Off Our Backs Report argued that lesbians
had been violently targeted 'because they are
suspected of being lesbian' and noted that these
crimes were similarly hate-based and accompanied
by anti-lesbian verbal abuse (NSWADB 1994).
Importantly, the Streetwatch report argues that
hate-motivated violence against gays and lesbians
is perceived differently from other crimes. Whereas
violence generally is regarded as an unacceptable
crime, the intersection of violence with the identification
and targeting of a group towards which the perpetrator
feels prejudice, bias or hatred undermines this
perception. In a feat of psychological reversal,
violence directed against groups who are viewed
as existing 'outside' or 'Other' to the dominant
norms of society is normalized. That is, it is
more frequently justified, condoned or ignored.
In the community at large, such 'normalization'
may be expressed in a variety of ways ranging
from passive acceptance of the inevitability of
such violence to active incitement. Violence against
groups, which have not been marginalized, on the
other hand, is not normalized in the same way
and is able to be regarded generally as unacceptable.
In this way, violence against gays and lesbians
is not automatically perceived as a crime (NSWADB
1994).
Racist Hate Crimes
In the June 1998 murder of James Byrd, John King,
24, chained his 49-year-old victim to the back
of a utility truck and dragged him two kilometers
along a dirt road until his body, literally, fell
apart. The man found guilty of the murder is a
white supremacist whose body is decorated with
race-hate tattoos including one depicting the
lynching of a black man. The accused wrote a letter
from jail after his arrest in which he said, 'We
have made history and we shall die proudly remembered.'
Prosecutors alleged the offender orchestrated
the killing to generate interest in a new white
supremacist group, a chapter of the Ku Klux Klan
that he was attempting to form (Riley 1999a, b).
During investigations into the murder, it was
reported that King's uncle was tried in 1939 for
killing a gay man who had allegedly made sexual
advances towards him. After half an hour's deliberations
in that earlier case, the jury agreed that 'unnatural
advances' had justified the killing.
In Alabama on 19 February 1999, Steven Mullins,
aged 25, and Charles Butler, 21, murdered a black
gay man. These two men beat Billy Jack Gaither,
then placed him in the boot of his own car and
drove to a new location where they beat him to
death with an axe-handle and set his body on fire
on top of kerosene-soaked tyres. His body was
found by a passer-by the following day. It was
reported that the offenders had spent two weeks
planning their attack and that Mullins regularly
wore 'White Power' T-shirts (Associated Press
1999). The crime led US President Bill Clinton
to make a public statement expressing grief and
outrage about Gaither's death (Clinton 1999).
Since 1996, the US Federal Bureau of Investigation
(FBI) has monitored church arson as an identified
hate crime against African-Americans (FBI 1997).
Thirty-six incidents of hate-motivated arson and
15 incidents of religion-motivated arson were
reported in 1997 (FBI 1997). Australian examples
of racist hate crimes directed against Aborigines
and Torres Strait Islanders, Arab Australians
and Australians of Asian descent have been detailed
by Cunneen, Fraser and Tomsen (1997a).
Gender Hate Crimes?
Historically, the intimacy element of violence
against women has obscured an assessment of such
acts of violence as a crime. Rape within marriage
is a case in point, as is the more contemporary
example of the difficulty of successfully prosecuting
incidents of date rape. By analogy, it is possible
that an emphasis on the intimacy element when
judging whether a crime can be regarded as a hate
crime (instead of the motivation and targeting,
and normalization of violence elements already
addressed) may obscure the hate-based element
of that crime. Perhaps because someone whom they
know often perpetrates crimes against women, it
is difficult to conceive of those crimes as motivated
by hatred towards women. But someone whom the
victim knows commits not all crimes against women.
Is it possible to regard the rape and murder of
a Walgett nurse as any more or less a hate crime
than the murder of a woman whose husband beat
and strangled her and then flushed her body parts
down the toilet (Cornford 1999; Darby 1999)? Perhaps
the inclusion of the stranger factor in some hate
crime definitions demonstrates the singular success
of the normalization of much violence against
women.
In the United States, while more than 40 States
have hate crime laws of some description; in only
22 of them do the laws encompass gender (Robinson
1999). A 1987 report on 'bias crime' sponsored
by the US National Institute of Justice declared
'the most frequent victims of hate violence today
are Blacks, Hispanics, South-east Asians, Jews
and gays and lesbians. Homosexuals are probably
the most frequent victims' (Herek and Berrill
1992). The omission from this list of violence
against women is glaring and unexplained. During
discussion in the Indianapolis legislature in
March 1999 in relation to the introduction of
the hate crime legislation designated as House
Bill 1183, a 'bias crime' was defined as one committed
by a person who intentionally selects and injures
another person, or damages his or her property,
because of 'color, creed, disability, national
origin, race, religion or sexual orientation'
(Hirsch 1999). Again, gender was omitted. In 1999,
however, the US Congress began to debate the Hate
Crimes Prevention Act 1999 which aimed to extend
an existing federal hate crimes statute targeting
crimes based on race, color, religion or national
origin to include crimes based on sex, sexual
orientation and disability (Robinson 1999).
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