Legislation does not need to have any particular form or have a specific title to be considered a hate crime law. A hate crime law is simply any type of criminal provision that recognizes the bias motivation of the crime and allows for the imposition of an increased sentence for that crime. Thus, it always encompasses a criminal act in the Criminal Code, or “base offence”, and requires that the crime was committed out of a bias motivation. It is the proof of motive that makes hate crimes different from other crimes.
ODIHR’s publication, Hate Crime Laws: A Practical Guide, describes the general types of approaches to hate crime laws in the OSCE region and provides specific examples of each type. All hate crime laws included in this section generally fit into one of the approaches listed below. Some states use a combination of legislation to ensure a comprehensive approach. Each approach has its advantages and disadvantages that should be considered when drafting legislation.
Substantive offence: A “substantive offence” is a separate offence that includes bias motive as an integral element of the legal definition of the offence. An advantage of using a substantive offence is that it sends a clear message to both the public and the criminal justice system of the importance of prohibiting bias-motivated crime.
Examples for substantive offences would be specific provisions sanctioning, e.g., racially or religiously motivated assault, as a separate, independent offence.
Under this approach, hate crimes usually have higher visibility, which can result in more reporting by victims, better investigations and prosecution, and more robust data collection. On the other hand, if motive is not proven in court of law, there might not be any conviction for the base offence if the court is only allowed to consider the substantive hate crime offence in the indictment.
Penalty enhancement: “Penalty enhancements” are also sometimes referred to as “aggravating circumstances” provisions. Simply put, they increase the penalty for a base offence when it is committed with a bias motive. This means that the offender is found guilty of a crime or base offence, and the court considers whether there is sufficient evidence of bias to apply an increased sentence.
Penalty enhancements are usually easier to implement in legislation because they can be amendments to current criminal provisions. However, unless the increase for sentence for bias motivation can be stated on the public record, the symbolic value of hate crime may not always be recognized. As the Criminal Code sections on hate crime may not be as easy to identify in aggravating circumstances provisions, victims may report less and law enforcement and prosecutors may be less apt to look for evidence of bias motivation. Data collection on hate crimes can also be problematic as statistics on aggravating circumstances are not always or easily recorded.
Penalty enhancements can either be general or specific.
General penalty enhancement: These are enhancement provisions that apply to a wide range of criminal offences. This type of enhancement is usually contained with sentencing provisions in the Criminal Code. It can be listed as its own provision concerning bias motivation or as part of a longer provision that includes a number of different aggravating circumstances. In these types of provisions, the exact range of sentence increase is generally not described, but rather the sentencing court has broad discretion to determine the amount of increase in the sentence.
An example for a general penalty-enhancing provision would be:
“If the commission of a crime was motivated, at least in part, by the victim’s nationality, race, ethnicity, religion, or sexual orientation, then the court shall treat this as an aggravating factor and must state this when issuing its sentence. “
General penalty enhancements are widely applicable to nearly any criminal act in the Criminal Code. However, such broad enhancements are not always well-known or identifiable in the reporting, investigation and recording of hate crimes.
Specific penalty enhancement: Specific enhancements apply increased penalties to some specifically enumerated offences. Certain crimes, such as different types of assault or bodily injury, may have certain sections that describe general aggravating circumstances that increase the sentence, which can include bias motivation. It is usually listed within the base offence, or in a subsequent or closely-related provision. In most cases, a specific, increased sentencing range for the aggravating circumstances is described.
An example for a specific penalty enhancement would be:
“Murder committed based on national, racial, ethnic, religious grounds, or due to the sexual orientation of the victim, shall be punished with a minimum of 12 years’ imprisonment”
In that example, the base crime of murder without aggravating circumstances would have a minimum imprisonment requirement of 10 years.
Specific penalty enhancements are more easily identifiable in close conjunction with specific crimes, and especially ones routinely associated with hate crime, such as physical injuries or damage to property. On the other hand, specific penalty enhancements often cover a limited amount of provisions, and many hate crimes may escape the application of penalty enhancements.
Posted in June 2012.