The discourse of hate crime has come to Europe, supported not least by international human rights actors and security and policy organisations. In this article, I argue that there is a need for a philosophical response to challenging claims about the conceptualisation and classification of hate crime. First, according to several scholars, hate crime is extraordinarily difficult to conceptualise and there is a fatigue among practitioners caused by the lack of clarity and consensus in the field. I (...) agree that there is a need, not for additional definitions, but for a more comprehensive conceptual framework, that may help us think more clearly about given definitions of hate crime; about their basic structure, cross-cutting problems, and possible variations. Supplying such a conceptual perspective represents a timely task for applied philosophy. I engage with this by offering a four-tiered concept of hate crime. Second, the involvement of human rights actors in the consolidation of hate crime law and policy in Europe has supported the classification of hate crime as a human rights violation. Ultimately, what is at stake is not only our understanding of hate crime, but also our maintenance of a precise and pointed discourse on human rights violations. I argue that we should hesitate or even abstain from classifying hate crime as a human rights violation, and that doing so is compatible with taking both hate crimes and human rights seriously. (shrink)

This chapter describes Card's characterization as an idealization that captures why hate crime legislation seems (at least prima facie) to be a very good idea. The rationale for enhanced penalties is far more compelling if hate crimes are characterized as Card characterizes them. She focuses on hate crimes that are motivated by hatred. Hate crimes today should be viewed as part of an ongoing campaign of intimidation. Card is of course well aware of (...) the position that the legal category of hate crimes and enhanced penalties for hate crimes are called for to counter the message sent by hate crimes; in fact she notes that she was initially "attracted to the idea of penalty enhancement legislation for hate crimes as a way to send a strong social message against racism, sexism, anti‐Semitism, and homophobia". (shrink)

This chapter contains sections titled: Hate Speech and the Law Two Theories of Rights Should Hate Speech be Free Speech? Hate Crimes and the Law.

In “Is Penalty Enhancement a Sound Idea?” Claudia Card calls into question hate crime legislation, querying whether hatred makes a crime worse, whether hatred of the sort pertinent to hate crimes is worse than a more personal hatred, and whether the message sent by hate crime legislation is the intended message. This essay questions her assumption that penalty enhancement for hate crimes is warranted only if the crimes are worse than otherwise similar (...) class='Hi'>crimes that do not count as hate crimes. Instead, it may be the case that it is the proper business of the state to take a particular interest in such crimes, in part because they enact not just any hatred but civic hatred. And if hate crimes are understood as enacting civic hatred, hate crime legislation can indeed serve to counter a message that very much needs to be countered. (shrink)

This paper assesses the extent to which enhancing a penalty for hate crimes is a necessity. It conducts its analysis by looking at the theoretical justifications for and against such enhancement and also the impact of hate crimes on their victims, their groups and society, in comparison to non-bias crimes. It recognizes the particularly damaging effect of hate crimes on these three levels but argues that care must be taken to ensure a high (...) threshold framework and a clear vision in terms of protected characteristics. It argues that if penalty enhancements are to be any use, victims should be empowered to access the criminal justice system whilst the right to freedom of expression must be preserved. The paper commences with a definitional and conceptual framework of hate crimes, proceeds with the theoretical argumentations for and against hate crime legislation, conducts a legislative analysis of hate crimes, using examples from around the world as well as an assessment of the approach of the European Court of Human Rights to hate crime. (shrink)

In the early 1980s, a new category of crime appeared in the criminal law lexicon. In response to concerted advocacy-group lobbying, Congress and many state legislatures passed a wave of "hate crime" laws requiring the collection of statistics on, and enhancing the punishment for, crimes motivated by certain prejudices. This book places the evolution of the hate crime concept in socio-legal perspective. James B. Jacobs and Kimberly Potter adopt a skeptical if not critical stance, maintaining that legal (...) definitions of hate crime are riddled with ambiguity and subjectivity. No matter how hate crime is defined, and despite an apparent media consensus to the contrary, the authors find no evidence to support the claim that the United States is experiencing a hate crime epidemic--instead, they cast doubt on whether the number of hate crimes is even increasing. The authors further assert that, while the federal effort to establish a reliable hate crime accounting system has failed, data collected for this purpose have led to widespread misinterpretation of the state of intergroup relations in this country. The book contends that hate crime as a socio-legal category represents the elaboration of an identity politics now manifesting itself in many areas of the law. But the attempt to apply the anti-discrimination paradigm to criminal law generates problems and anomalies. For one thing, members of minority groups are frequently hate crime perpetrators. Moreover, the underlying conduct prohibited by hate crime law is already subject to criminal punishment. Jacobs and Potter question whether hate crimes are worse or more serious than similar crimes attributable to other anti-social motivations. They also argue that the effort to single out hate crime for greater punishment is, in effect, an effort to punish some offenders more seriously simply because of their beliefs, opinions, or values, thus implicating the First Amendment. Advancing a provocative argument in clear and persuasive terms, Jacobs and Potter show how the recriminalization of hate crime has little value with respect to law enforcement or criminal justice. Indeed, enforcement of such laws may exacerbate intergroup tensions rather than eradicate prejudice. (shrink)

Early in the 1980s, a new category of crime appeared in the criminal law lexicon. In response to what was said to be an epidemic of prejudice-motivated violence, Congress and many state legislatures passed a wave of 'hate crime' laws that required the collection of statistics and enhanced the punishment of crimes motivated by certain prejudices. This book places in socio-legal perspective both the hate crime problem and society's response to it. From the outset, Jacobs and Potter (...) adopt a skeptical if not critical stance. They argue that hate crime is a hopelessly muddled concept and that legal definitions of the term are riddled with ambiguity and subjectivity. Moreover, no matter how hate crime is defined, the authors find no evidence to support the claim that the US is experiencing a hate crime epidemic—nor that the number or rate of hate crimes is at an historic zenith. (shrink)

This chapter reaches the following conclusions about laws that enhance punishment for criminal conduct prompted by group hatred or bias:Hatred should not be either a necessary or a sufficient condition for enhanced punishment.Enhanced punishment is justifiable when bias crimes display greater culpability, express disrespect for the victim’s group, or cause either greater psychic harm to the victim or group-specific outrage in the victim’s community.Properly designed bias crime laws do not improperly punish for thoughts or character.Such laws are more defensible (...) if they require that the actor’s primary motive was animus toward the disfavored group.There is no principled reason to require that such laws merely enhance punishment for an already existing parallel crime.Increasing punishment significantly because of bias may violate principles of proportionality. (shrink)

There is a divide within political and legal theory concerning the justification of hate-crime legislation in liberal states. Opponents of Hate-Crime Legislation have recently argued that enhanced punishment for hate-motivated crimes cannot be justified within political liberal states. More specifically, Heidi Hurd argues that criminal sanction which target character dispositions unfairly target individuals for characteristics not readily under their control. She further argues that a ‘character’ based approach in criminal law is necessarily illiberal and violates the (...) state’s commitment to political neutrality. In the current paper, I attempt to show the difficulties and absurdity that follows from Hurd’s characterization of hate- rimes. I aim to show that punishment for undesirable character traits is consistent with western conceptions of criminal law. Upon doing so, I then go on to construct a positive argument for the justifiability of punishing for character traits as well as for the enhanced punishment associated with hate-motivated crimes. (shrink)

New York defines rape as forced penile vaginal penetration, which means only women can be rape victims. Given this definition, rape should always be considered a type of hate crime and thus eligible for sentencing enhancement because the perpetrators target victims based on their group membership. Such a narrow definition of rape is problematic because it fails to acknowledge oral and anal rape and overlooks the fact that men can also be raped. I argue that regardless of the type (...) of sexual assault that occurs, rape should be considered a hate crime when the rapist chooses the victim based on gender, gender identity, and/or sexual orientation and the rape reinforces the patriarchal and heteronormative hegemony. (shrink)

(2001). Domestic violence and hate crimes: Acknowledging two levels of responsibility. Criminal Justice Ethics: Vol. 20, No. 2, pp. 31-43. doi: 10.1080/0731129X.2001.9992106.

This book approaches the topic of the subjective, lived experience of hate crime from the perspective of Husserlian phenomenology. It provides an experientially well-grounded account of how and what is experienced as a hate crime, and what this reveals about ourselves as the continually reconstituted “subject” of such experiences. The book shows how qualitative social science methods can be better grounded in philosophically informed theory and methodological practices to add greater depth and explanatory power to experiential approaches to (...) social sciences topics. The Authors also highlight several gaps and contradictions within Husserlian analyses of prejudice, which are exposed by attempts to concretely apply this approach to the field of hate crimes. Coverage includes the difficulties in providing an empathetic understanding of expressions of harmful forms of prejudice underlying hate crimes, including hate speech, arising from our own and others’ ‘life worlds’. The Authors describe a ‘Husserlian-based’ view of hate crime as well as a novel interpretation of the value of the comprehensive methodological stages pioneered by Husserl. The intended readership includes those concerned with discrimination and hate crime, as well as those involved in qualitative research into social topics in general. The broader content level makes this work suitable for undergraduate and postgraduate students, even professionals within law enforcement. (shrink)

This book approaches the topic of the subjective, lived experience of hate crime from the perspective of Husserlian phenomenology. It provides an experientially well-grounded account of how and what is experienced as a hate crime, and what this reveals about ourselves as the continually reconstituted “subject” of such experiences. The book shows how qualitative social science methods can be better grounded in philosophically informed theory and methodological practices to add greater depth and explanatory power to experiential approaches to (...) social sciences topics. The Authors also highlight several gaps and contradictions within Husserlian analyses of prejudice, which are exposed by attempts to concretely apply this approach to the field of hate crimes. Coverage includes the difficulties in providing an empathetic understanding of expressions of harmful forms of prejudice underlying hate crimes, including hate speech, arising from our own and others’ ‘life worlds’. The Authors describe a ‘Husserlian-based’ view of hate crime as well as a novel interpretation of the value of the comprehensive methodological stages pioneered by Husserl. The intended readership includes those concerned with discrimination and hate crime, as well as those involved in qualitative research into social topics in general. The broader content level makes this work suitable for undergraduate and postgraduate students, even professionals within law enforcement. (shrink)

Introductory anthology to the philosophy of hate crime, written in the EU project "When Law and Hate Collide".

(1992). Rethinking the war against hate crimes: A New York city perspective. Criminal Justice Ethics: Vol. 11, No. 2, pp. 55-61. doi: 10.1080/0731129X.1992.9991925.

After defining a hate crime as an offense in which the criminal selects the victim at least in part because of an animus toward members of the group to which the victim belongs, this essay surveys the standard justifications for state punishment en route to defending the permissibility of imposing stiffer penalties for hate crimes. It also argues that many standard instances of rape and domestic battery are hate crimes and may be punished as such.

In the UK and USA ‘Hate crime’ has become a topic of public controversy and social mobilization around issues of violence and harassment. This has largely but not exclusively addressed racism, homophobia and gender based violence. This article has three objectives. First, to situate hate crime legislation within a broad theory of modernity;secondly to examine the politics of its emergence as a public issue; thirdly to use data from the authors' recent research in Greater Manchester to illuminate the (...) complexity of the concept of ‘hate crime’. The centrality of ‘hate crime’ to current debates derives from the importance of rights-based regulation of complex societies and the juridical management of emotional life. Hatred and violence have become problematic behaviour thrown into relief by a long term civilizing process. Hate crimes have thus acquired powerful rhetorical focus for mobilization of victim and identity politics. With reference to racist violence in Oldham and elsewhere in Greater Manchester, we argue that in its application and construction, however, ‘hate crime’ is a complex phenomenon that might dramatize rather than regulate the problems it seeks to address. (shrink)

In this Note, effigies hung during the 2008 Presidential campaign are examined in detail to determine the most effective way to prohibit this undesirable conduct. The analysis commences with a detailed description of the various effigies reported to the public media and whether or not the individuals who displayed their respective effigy were prosecuted. Next the Note characterizes the statutes of the states where effigies were hung and analyzes whether individuals could have been prosecuted under federal or the various state (...) hate crime statutes. In the end a review of the reported effigies during the Presidential campaign of 2008 and the various hate crime reporting statutes suggests that the most effective way to deter such conduct is to provide for more expansive hate crime incident reporting statutes rather than more substantive hate crime statutes criminalizing the hanging of effigies. (shrink)

Among the most persuasive arguments against hate speech bans was made by Ronald Dworkin, who warned of the threat to political legitimacy posed by laws that deny those subject to them adequ...

This article adds to the small but growing body of hate crime legal scholarship in the United Kingdom by examining the meaning of the term ‘hostility’ as prescribed under section 28 of the Crime and Disorder Act 1998. The article highlights the confusion which has occurred within the lower courts as to the distinction between section 28(1)(a), which proscribes ‘demonstrations’ of hostility, and section 28(1)(b), which proscribes offences ‘motivated’ by hostility. In addition to this confusion has been a clear (...) reluctance to apply section 28(1)(a) by some judges in cases where the demonstration of hostility appears to be incidental, as against causal, to the offence committed. The article argues that in order to provide greater clarity in law, the words ‘demonstrates … hostility’ must be interpreted to include, not only acts that are motivated by, or which are intended to express prejudice or hatred, but any conduct carried out during an offence where the offender is aware his behaviour is likely to be perceived by right-minded individuals as indicating hostility towards the victim’s identity. The article concludes that such a broad approach to conceptualizing hostility is justified based on the need for the state to expressly denounce all public displays of identity-based prejudice. The approach also acknowledges the harmful effects that all expressions of hate (motivated by hostility or not) have on victims, minority communities and to the cohesiveness of Britain’s multicultural society. (shrink)

In the future, it is likely that we will form strong bonds of attachment and even develop love for social robots. Some of these loving relations will be, from the human’s perspective, as significant as a loving relationship that they might have had with another human. This means that, from the perspective of the loving human, the mindless destruction of their robot partner could be as devastating as the murder of another’s human partner. Yet, the loving partner of a robot (...) has no recourse to legal action beyond the destruction of property and can see no way to prevent future people suffering the same devastating loss. On this basis, some have argued that such a scenario must surely motivate legal protection for social robots. In this paper, I argue that despite the devastating loss that would come from the destruction of one’s robot partner, love cannot itself be a reason for granting robot rights. However, although I argue against beloved robots having protective rights, I argue that the loss of a robot partner must be socially recognised as a form of bereavement if further secondary harms are to be avoided, and that, if certain conditions obtain, the destruction of a beloved robot could be criminalised as a hate crime. (shrink)

: After defining a hate crime as an offense in which the criminal selects the victim at least in part because of an animus toward members of the group to which the victim belongs, this essay surveys the standard justifications for state punishment en route to defending the permissibility of imposing stiffer penalties for hate crimes. It also argues that many standard instances of rape and domestic battery are hate crimes and may be punished as (...) such. (shrink)

In 1998, the Labour government introduced legislation broadening British sentencing powers in relation to crimes aggravated by the offender's hostility towards the victim's actual or perceived race, religion, sexual orientation or disability. Gender is a notable omission from this list. Through a survey of eighty-eight stakeholders working in the violence against women (VAW) sector, this paper explores both the potential benefits and possible disadvantages of adding a gender-based category concerned with VAW to British hate crime legislation. The majority (...) of participants believed that a hate crime approach would offer significant benefits, especially in terms of the symbolic power of the law to send a message to society that VAW is unacceptable. However, most also recognised that the addition of a VAW category to current legislation would involve major practical and conceptual difficulties, not least those resulting from problematic assumptions about the nature of hate crimes versus VAW, and a general unwillingness on the part of policy-makers to address the socio-cultural inequalities that underpin VAW. Overall, the fact that the majority of participants favoured inclusion, on the basis that the possible symbolic benefits were likely to outweigh the potential practical disadvantages, is significant: it speaks to the power of hate crime legislation to challenge many forms of inequality and discrimination still endemic in British society. (shrink)

. Freedom of thought as freedom of expression: Hate crime sentencing enhancement and first amendment theory. Criminal Justice Ethics: Vol. 11, No. 2, pp. 29-42.

In this article I argue that the objections against hate crimes defined as separate offenses and in terms of group animus are misguided and are based upon a mistaken view of human action that does...

(1992). “Brother, you can't go to jail for what you're thinking”: Motives, effects, and “hate crime” laws. Criminal Justice Ethics: Vol. 11, No. 2, pp. 24-29. doi: 10.1080/0731129X.1992.9991919.

This is a review of Hate Crimes: Criminal Law and Identity Politics, by James B. Jacobs and Kimberly Potter; it is argued that the arguments of that book completely fail to establish the book's principal conclusions.