Hate and Bias Crime: Criminologically Congruent Law? A Review of Barbara Perry's Hate and Bias Crime: A Reader
| Date | 01 April 2004 |
| Published date | 01 April 2004 |
| DOI | 10.1375/acri.37.1.144 |
| Author | David Gadd |
Congruent Law? A Review of Barbara
Perry’s Hate and Bias Crime: A Reader
David Gadd
Keele University
Barbara Perry
(2003) Hate and Bias Crime:A Reader Routledge: New York, 520 pp.,
ISBN 0415944082.
The last decade of the 20th century has seen a flurry of hate crime legislation and
other state activities, none of which have had an appreciable effect on the frequency
or certainly the severity of hate crime. Such initiatives are insufficient responses to
bias-motivated violence, in that they do not touch the underlying structures that
support hate crime. Abdicating responsibility for countering such violence to the
state, then, will not be a sufficiently effective long-term strategy. Rather, the respon-
sibility must be shared and distributed across institutional and interactional levels.
Moreover, the ultimate goal is not only to attack hate crime, but to disrupt the insti-
tutional and cultural assumptions about difference that condition hate crime. To the
extent that difference is socially constructed, it can also be reconstructed (Perry,
2003, p. 387)
“Hate crime” — like “what works”, “zero tolerance” and “three strikes” — is
rapidly becoming another of those criminological buzz-words that travels
around the western world leaving a trail of advocates usurping it into their own
policy agendas (Newburn, 2002). In the United States (US), hate crime legislation
identifies offences motivated by animosity towards particular groups of people as
deserving of higher penalties than crimes that are not motivated in this way. In
most US states the “groups” in question include ethnic and religious minorities. In
some US states evidence of bias motivation in relation to gender, sexual
orientation, and, less often, disability and age also define “hate crimes”.
Similarly, in Canada hate motivation has been counted by sentencers as an
aggravating factor since 1996, although the promotion of hatred against identifiable
groups has been a criminal offence in Canada since 1970. Australians have similar
laws1, some of which have been recently extended to include vilification based on
transgender identity or HIV status (Jones, 1997; Morgan, 2002). While the penalties
Address for correspondence: David Gadd, Department of Criminology, Keele University,
Keele, Staffordshire, England, ST5 SBG, UK. Email: d.r.gadd@crim.keele.ac.uk
144
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
VOLUME 37 NUMBER 1 2004 PP. 144–154
HATE AND BIAS CRIME: CRIMINOLOGICALLY CONGRUENT LAW?
for infringing these Australian laws can involve imprisonment, financial penalties
are more commonly administered, as are mediation, arbitration and community
justice. Conversely, the British Government recently announced its intention to
“protect communities” by extending pre-existing laws so that crimes “aggravated by
hostility towards the victim because of their sexual orientation or disability” receive
stiffer penalties in the same way that crimes “aggravated by the victim’s race and
religion” already do (Home Office, 2003). Finally, the South African Human Rights
Commission (2003) is currently advocating for the introduction of hate crime
legislation “to send out a clear message” that “racist ideas, racist activities, and racist
harassment and violence are a threat to the cohesion and stability of the new South
Africa as a multi-racial and pluralist society”.
Disappointingly, there has been little research commissioned into the likely
impact of introducing hate crime laws on the incidence of hate-motivated crime.
Indeed, the justifications for the changes to United Kingdom (UK) law make no
reference to academic research whatsoever. Yet, a serious academic engagement
with these reforms is much needed. The UK’s legislative changes are embedded in a
context that is confusingly progressive and regressive at the same time. On the one
(progressive) hand, the New Labour government in Britain has announced an
amnesty to allow 15,000 asylum seekers to stay in the UK; outlawed discrimination
in employment on grounds of sexual orientation; extended provisions to protect
people with special educational needs from discrimination in education; enhanced
the legal status of partnerships between same-sex couples; and placed duties on
employers to ensure that workers are not inhibited from taking holidays or
attending daily prayers in line with the tenets of their faith, and furthermore, that
company dress codes do not conflict with the rules of workers’ religions. On the
other (regressive) hand, the new hate crime legislation comes at a time when
investigative journalism has exposed the persistence of undetected and highly
pernicious racism amongst rank and file British police officers (Daly, 2003), British
rates of imprisonment are at an all-time high and the highest in Western Europe
(Howard League, 2003), and the government continues to promote the notion that
asylum seekers are predominantly “bogus” criminals2, who present an unsustainable
burden on tax-payers (Robinson, 2003). Three days after the 2003 Criminal Justice
Bill received royal assent, the British Home Secretary, David Blunkett, announced
his intentions to withdraw all state benefits from rejected asylum-seeking families,
place the children of adult asylum-seekers in care, and withdraw access to legal aid
to those who might wish to appeal against their deportation (Hinsliff, 2003).
Further “tough-talking” followed as the Home Office rumoured it was considering
introducing compulsory HIV and TB testing for all incoming migrants (Travis,
2003a), and then on 8th December 2003 the Home Secretary announced plans to
charge migrants granted permission to work in Britain an additional £500 levy,
generating a “windfall” for the exchequer, and apparently bringing Britain into line
with Australian migration policy (Travis, 2003b).
As readers of this journal will know better than I, similar tensions characterise
legal and policy responses to “hate” in Australia. During the moral panic that
ensued over a gang rape that occurred in Western Sydney in the year 2000,
newspapers editors campaigned, unsuccessfully, to get the courts to identify racial
THE AUSTRALIAN AND NEW ZEALAND JOURNAL OF CRIMINOLOGY
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DAVID GADD
motivation as a cause of the sexual assault, fuelling popular racism (Poynting et
al., 2003). The notion that religious and ethnic minorities pose a threat to some
“authentic” (white, heterosexual) identity has longstanding popular appeal in
Australia, and has been politically exploited since the aforementioned rape case
and the Bali bombing in 2002. In Australia attempts to recognise the brutal
injustices experienced by Aboriginal populations are disparagingly cast by many as
evidence of misplaced liberalism, or a self-serving “Aboriginal industry” (Cunnenn
et al. 1997), while anti-immigrant and anti-Islamic sentiment have been
legitimated by the Howard administration as it redirects asylum-seekers to
detention camps hosted by the poorer neighbouring countries of Papua New
Guinea and Nauru. As in the US, Australian law embodies a tension between the
desire to protect free speech and the desire to protect minorities from vilification.
In Australia extremists can exploit an exemption in the Racial Discrimination Act
that allows them to claim that their racism is “fair comment”, and an “expression
of genuine belief” (Jones, 1997, p. 219).
As criminologists begin to contemplate this perplexing state of affairs, they
would be...
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