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Conceptualising ‘racism’ in criminal law

Published online by Cambridge University Press:  02 January 2018

Kay Goodall
Kay Goodall*
Affiliation:
University of Stirling
*
Kay Goodall, Senior Lecturer, School of Law, A87 Pathfoot Building, University of Stirling, Stirling, FK9 4LA, Scotland, UK. Email: k.e.goodall@stir.ac.uk
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Abstract

‘Hate’ crime has attracted intense debate, but surprisingly little has been written on how best to draft and interpret hate crime legislation. The dominant conceptual models derive from US scholarship. Although valuable, they pay insufficient attention to principles of criminal law and to how hate crime law is perceived. This paper explores these problems through a discussion of legal approaches to, and lay perceptions of, racism, as embodied in the racially aggravated offence. It proposes a model which offers a more just alternative.

Type
Research Article
Information
Legal Studies , Volume 33 , Issue 2 , June 2013 , pp. 215 - 238
Copyright
Copyright © Society of Legal Scholars 2013

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Footnotes

*

Thanks in particular to the reviewers and Antony Duff, Colin Macilwain, Alex Goodall, Brian Jones, Julianna Eastwood and Bill Munro for their helpful advice and comments. The opinions expressed here, and of course any errors, are mine.

References

1 There is a useful debate about when states should adopt nominate aggravation of offences, penalty enhancement or separate new offences. I do not consider that here, but see, eg, Mason, G ‘Hate crime laws in Australia: are they achieving their goals?’ (2009) 33 Crim LJ 326 Google Scholar. Here, I take ‘racially-aggravated offences’ to include any offences which without the ‘racial’ element would still be offences.

2 Although both the terms ‘bias’ and ‘hate’ have their adherents, it is ‘hate’ which has repeatedly been invoked in criminal justice practice, often to muster support for legislation. Neither term is ideal, but adopting ‘bias’ acquiesces in the growth of this domain. ‘Hate’ is also the term chosen by the OSCE. See Ministerial Council Decision No. 9/09 Combating hate crimes (Athens: OSCE, 2 December 2009) and the Guide, below n 3, p 16.

3 ODIHR Hate Crime Laws: A Practical Guide (ODIHR: Warsaw, 2010). The Guide was produced in pursuance of the OSCE Decision (above n 2).

4 A noteworthy exception is Brudholm, T ‘Crimini dell'odio e diritti umani’ in Sciacca, F (ed) Giustizia globale. Problemi e prospettive (Soveria Mannelli: Rubbettino, 2011)Google Scholar (cited here from the author's pre-publication English translation, with thanks).

5 Private communication with author. See, eg, the Opinion on Draft Amendments to the Moldovan Criminal Code related to Hate Crimes (7 June 2010) HCRIM– MOL/156/2010 (AT); the Opinion on Amendments to the Criminal Code Provisions of Bosnia and Herzegovina related to Hate Crimes (23 July 2009) HCRIM BIH/138/2009 (NK); and the comments on Provisions Relating to Hate Crimes in the Draft Criminal Code of the former Yugoslav Republic of Macedonia (23 April 2009) HCRIMfYROM/132/2009 (TND).

6 Moldova Opinion, ibid, para 36.

7 Ibid, para 52. See also Bosnia and Herzegovina Opinion, above n 5, para 12.

8 Treaty on the Functioning of the European Union, Title V: Area of Freedom, Security and Justice, Art 67(3).

9 Mitsilegas, V, EU Criminal Law (Oxford: Hart, 2009)Google Scholar pp 92 and 98; Bell, M, Racism and Equality in the European Union (Oxford: Oxford University Press, 2008)Google Scholar pp 161–164.

10 Preamble, Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law.

11 To avoid misinterpretation, I restrict the discussion mostly to jurisdictions where English is the official language, excepting ECHR case-law, below. On the absence of definitions of ‘racism’, see also Howard, E ‘Race and racism: why does European law have difficulties with definitions?’ (2008) 24 International Journal of Comparative Labour Law and Industrial Relations 5 Google Scholar.

12 USA: http://www.adl.org/learn/hate_crimes_laws/map_frameset.html

13 Section 3. The English Crown Prosecution Service state for their purposes that ‘“Racialist” means the same as racist’. http://www.cps.gov.uk/publications/prosecution/rrpbcrbook.html

14 Canada: Criminal Code RSC, 1985, c. C-46, ss 318 and 319. New Zealand: Sentencing Act 2002, s 9(1)(h). Australia and its states: all statutes available online: http://www.hreoc.gov.au/racial_discrimination/cyberracism/vilification.html

15 Guide, above n 3, pp 41–43.

16 Rita v United States 551 US 338 (2007). A similar exercise was performed with Australian and New Zealand case databases.

17 R v Rogers[2007] 2 AC 62 at [68].

18 Nachova v Bulgaria (43577/98) (2006) 42 EHRR 43 at [145]; emphasis added. See also Sigma Radio Television Ltd v Cyprus (32181/04, 35122/05) (Judgment of 21 July 2011) at [208].

19 Šečić v Croatia (40116/02) (2009) 49 EHRR 18 at [66]; emphasis added.

20 Mižigárová v Slovakia (74832/01) (Judgment of 14 December 2010) at [119]; emphasis added. The one exception may be Judge Boštjan M Zupančič's judgment in Vejdeland and Others v Sweden (1813/07) (Judgment of 9 February 2012) at [4], discussing viewpoint discrimination and the US Supreme Court. For EU law, there are no relevant ECJ decisions.

21 In French, the other language in which the Court's decisions are available, the wording in Affaire Natchova et autres c. Bulgarie is: ‘La violence raciale constitue une atteinte particulière à la dignité humaine....C'est pourquoi celles-ci doivent recourir à tous les moyens dont elles disposent pour combattre le racisme et la violence raciste...’ (emphasis added).

22 Article 93: http://avalon.law.yale.edu/imt/partiii.asp

23 C Fink ‘The minorities question at the Paris Peace Conference: the Polish Minority Treaty, June 28, 1919’ in Boemeke, M, Feldman, G and Glaser, E(eds) The Treaty of Versailles: A Reassessment after 75 Years (Cambridge: Cambridge University Press, 1998)CrossRefGoogle Scholar ch 11, p 271.

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26 Åkermark, A Justifications of Minority Protection in International Law (The Hague: Kluwer, 1997)Google Scholar ch 7.

27 On the extent to which they should remain so, see Brudholm, above n 4, pp 16–23.

28 Guide, above n 3 p 23.

29 Malik, M ‘“Racist crime”: racially aggravated offences in the Crime and Disorder Act Part Ii’ (1999) 62 MLR 409 CrossRefGoogle Scholar at 420.

30 Guide, above n 3, p 47.

31 The literature is extensive, but for empirical evidence of whether greater harm occurs, see, in particular, Iganski, P ‘Hate crimes hurt more (2001) 45 American Behavioral Scientist 626 CrossRefGoogle Scholar; most recently, Perry, B and Alvi, S “We are all vulnerable”: the in terrorem effects of hate crimes’ (2012) 18 International Review of Victimology 57 CrossRefGoogle Scholar; and for a broader review and class- and race-differentiated analysis, Meyer, D ‘Evaluating the severity of hate-motivated violence: intersectional differences among Lgbt hate crime victims’ (2010) 44 Sociology 980 CrossRefGoogle Scholar.

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34 Guide, above n 3, pp 14 and 15.

35 R v Aslett[2006] NSWCCA 49 at [124].

36 Among others, ‘opportunistic bias crime’, ‘targeted crime’, ‘actuarial selection, discriminatory victim selection’ or a form of ‘rational targeting’. The principle behind them is the same, although the meaning intended varies. ‘Opportunistic’, however, seems inappropriate: one characteristic of these crimes is surely that the calculation is pre-planned.

37 Ashworth, A Principles of Criminal Law (Oxford: Oxford University Press, 6th edn, 2009)Google Scholar p 76.

38 Malik, above n 29, at 410–411 and 423.

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40 See, eg, Moldova Opinion, above n 5, para 53.

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43 Wisconsin v Mitchell 508 US 476 (1993) at [484–488].

44 State v Plowman 314 Or 157, 165 838 P 2d 558 (1992). See Woods, Jb, ‘Taking the “hate” out of hate crimes: applying unfair advantage theory to justify the enhanced punishment of opportunistic bias crimes’ (2008) 56 UCLA Law Review 489 Google Scholar at 493.

45 Dobbins v State 605 So.2d 922 (1992).

46 RAV v City of St Paul 505 US 377 (1992).

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48 State v Stalder 630 So.2d 1072 (1994) 1076.

49 People v John Fox 844 N.Y.S.2d 627 (Sup. 2007); emphasis added. Notably, the panel reached this conclusion despite the offence itself having been explicitly designated in the statute as a ‘hate’ crime.

50 US v Nelson and Price 277 F.3d 164 (2nd Cir. 2002) at [21].

51 Since United States v Booker 543 US 220 (2005) the guidelines are now only advisory for states, not mandatory.

52 Ch 3, Part B, s 3A1.1. See, more generally, Danner, Am ‘Bias crimes and crimes against humanity: culpability in context’ (20022003) 6 Buffalo Crim LR 389 CrossRefGoogle Scholar at 402.

53 Emphasis added.

54 Council of the European Union, press release 16325/1/08 REV 1 (Presse 344).

55 For concerns, see Booth, S, Howarth, C and Scarpetta, V An Unavoidable Choice: More or Less EU Control over UK Policing and Criminal Law (London: Open Europe, 2012)Google Scholar p 15.

56 Guide, above n 3, pp 48–49.

57 Danner, above n 52, at 406.

58 Woods, above n 44, at 492.

59 Wang 1997, above n 41. Wang's assertion should not pass without comment: the briefest glance at the history of the civil rights battle in the US exposes the many egregious attempts by analysts to misdirect attention from what was, fundamentally, horrific racism.

60 Woods, above n 44.

61 OSCE Hate Crimes in the OSCE Region: Incidents and Responses – Annual Report for 2009 (Warsaw: OSCE, November 2010) p 34; emphasis added. The phrase comes from an earlier ODIHR decision, No.13/06, Combating Intolerance and Discrimination and Promoting Mutual Respect and Understanding, but there it relates to governmental discourse, separate from hate crime.

62 Wang 1999, above n 33, at 812.

63 Wang 2000, above n 33, at 1407.

64 Lawrence, F Punishing Hate: Bias Crimes under American Law (Cambridge, MA: Harvard University Press, 1999)Google Scholar p 73.

65 Ibid, p 34.

66 Ibid, pp 10 and 170.

67 Tsesis, A ‘Contextualizing bias crimes: a social and theoretical perspective’ (2003) 28 Law and Social Inquiry 315 CrossRefGoogle Scholar at 328.

68 Crocker, L ‘Hate crime statutes: Just? Constitutional? Wise?’ (1992) Annual Survey of American Law 485 Google Scholar at 486.

69 Section 28(3). This applies to ss 29–32 of the 1998 Act, but the Criminal Justice Act 2003, s 145(3) provides that for sentencing in other offences, the definition in s 28 also applies. In Scotland, the similar s 96 applies to almost all offences.

70 See, eg, Wang 1997, above n 41, at 68 and fn 85–90, but cf. Tsesis, above n 66, at 328 and Phillips, S and Grattet, R ‘Judicial rhetoric, meaning-making, and the institutionalization of hate crime law’ (2000) 34 Law and Society Review 567 CrossRefGoogle Scholar.

71 Card, C ‘Is penalty enhancement a sound idea?’ (2001) 20 Law and Philosophy 195 Google Scholar at 197.

72 Danner, above n 52, at 424–425 and 431.

73 Lawrence, above n 63, at 76–79.

74 See s 50A(1)(a) or (b) of the Criminal Law (Consolidation) (Scotland) Act 1995. PF v Napier et al (pre-trial debate), Edinburgh Sheriff Court, Sheriff's Note, 8 April 2010.

75 Art 10, European Convention on Human Rights (freedom of expression). Sheriff's Note, above n 73, at [46].

76 For a more detailed discussion of this problem for protest cases, see K Goodall ‘Designing law to tackle racially aggravated offences: challenges for Irish law’ Irish Journal of Legal Studies, forthcoming.

77 See above n 68.

78 R v Rogers[2007] 2 AC 62 at [66].

79 Miles, R and Brown, M Racism (London: Routledge, 2nd edn, 2003)Google Scholar ch 2.

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82 See, eg, MM Unzueta and BS Lowery, who compare change in conceptions of institutional racism in a study where self-affirmation is introduced as a variable: ‘Defining racism safely: the role of self-image maintenance on white Americans conceptions of racism’ (2008) 44 Journal of Experimental Social Psychology 1491 at 1494 and passim.

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87 A simple example is a 1999 Gallup poll that asked a general question about hate crime law and then gave a specific instance, resulting in different approval ratings: see Steen and Cohen, above n 32, at 97.

88 Henrich, J, Heine, S and Norenzayan, A ‘the weirdest people in the world?’ (2010) 33 Behavioral and Brain Sciences 61 CrossRefGoogle Scholar.

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90 Henrich et al, above n 87, at 63.

91 Levy et al, above n 88, at 5.

92 Esses and Hodson, above n 84, at 456.

93 SR Sommers and MI Norton ‘Lay theories about white racists: what constitutes racism (and what doesn't)’ (2006) 9(1) Group Processes and Intergroup Relations 117 at 130ff.

94 Unzueta and Lowery, above n 81, hypothesising from their empirical findings that those seeing themselves as belonging to a ‘racially’ privileged group may be reluctant to conceive of racism as institutional (or indeed, systemic) and hence benefiting them.

95 Sommers and Norton, above n 92, at 134–135.

96 Pearson et al, above n 84. ‘Liberal’ here is as defined in US political discourse.

97 Esses and Hodson, above n 84, at 457 and 461. Also McConahay, Jb ‘Modern racism, ambivalence and the modern racism scale’ in Dovidio, Jf and Gaertner, Sl (eds) Prejudice, Discrimination and Racism (New York: Academic Press, 1986)Google Scholar.

98 Duff, A Answering for Crime: Responsibility and Liability in the Criminal Law (Oxford: Hart, 2007)Google Scholar ch 1.

99 Lawrence, above n 63, p 61.

100 He calls it a ‘conception’, but this is too modest: it merits being called a ‘concept’.

101 Garcia, J. ‘Racism and racial discourse’ (2001) 32 The Philosophical Forum 125 CrossRefGoogle Scholar at 134.

102 See also Glasgow, J ‘Racism as disrespect’ (2009) 120 Ethics 64 CrossRefGoogle Scholar, particularly at 77–78.

103 Garcia, J ‘Current conceptions of racism: a critical examination of some recent social philosophy’ (1997) 28 Journal of Social Philosophy 5 CrossRefGoogle Scholar at 30.

104 For reasons of space, I exclude a discussion of recklessness in crimes of specific intent.

105 Lawrence, above n 63, p 171.

106 On disregard, see, eg, Chalmers, J ‘Lieser and misconceptions’ (2008) Scottish Criminal Law 1115 Google Scholar. See also Antony Duff's discussion of ‘practical indifference’, above n 97, ch 7.

107 Calhoun, C ‘Responsibility and reproach’ (1989) 99 Ethics 389 CrossRefGoogle Scholar at 389. See also the discussion of culpable ignorance in FitzPatrick, W ‘Moral responsibility and normative ignorance: answering a new skeptical challenge’ (2008) 118 Ethics 589 CrossRefGoogle Scholar, particularly at 605 onwards. See also Fiske, S ‘Controlling other people: the impact of power on stereotyping’ (1993) 48 American Psychologist 621 CrossRefGoogle Scholar.

108 Iganski, P ‘Criminal law and the routine activity of “hate crime”’ (2008) 29 Liverpool LR 1 CrossRefGoogle Scholar, at 5–6 and passim. See also Garcia 2001, above n 100, at 138.

109 Allen, M Textbook on Criminal Law (Oxford: Oxford University Press, 10th edn, 2009)Google Scholar pp 558–559.

110 H Hurd and M Moore ‘Punishing hate and prejudice’ (2003–2004) 56 Stanford LR 1081.

111 Garcia 2001, n 100 above, at 138.

112 Sommers and Norton, above n 92, at 135. It should, however, be noted that the motivation for some behind this response appeared exculpatory: more would need to be done to support my conclusion here.