The Hate Threshold
| Date | 01 September 2014 |
| Author | Gail Mason |
| Published date | 01 September 2014 |
| DOI | 10.1177/0964663914534459 |
| Subject Matter | Articles |
Article
The Hate Threshold:
Emotion, Causation and
Difference in the
Construction of
Prejudice-motivated Crime
Gail Mason
University of Sydney, Australia
Abstract
Hate crime laws have emerged within a climate of penal expansion and identity
politics. They contain ideological claims designed to reconfigure social norms and
regimes of difference. This article employs the concept of the hate threshold to
examine the principles and practices that turn an ordinary crime into a hate crime
and the normative messages that flow from this. The hate threshold takes three
major elements – emotion, causation and difference – as a framework for analysing
how the legal rules are operationalised. Analysis of Australian sentencing aggravation
law reveals that co urts have set a relat ively rigorous st andard for offende r sentiment
and causation. However, the development of a more fluid threshold around the
element of difference raises questions about the constitutive implications when law
‘misfires’. This analysis of the law in action provides a material foundation for
reflecting on the capacity of hate crime law to engage in larger processes of
remoralisation.
Keywords
Hate crime, hate threshold, politics of difference
Corresponding author:
Gail Mason, Sydney Law School, University of Sydney, New Law Building F10, New South Wales 2006,
Australia.
Email: gail.mason@ sydney.edu.au
Social & Legal Studies
2014, Vol. 23(3) 293–314
ªThe Author(s) 2014
Reprints and permission:
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DOI: 10.1177/0964663914534459
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Introduction
Hate crime laws have emerged in a climate of penal expansionism. They have also
emerged in an era of identity politics. This is no coincidence. A confluence of punitive
justice policy and social justice ideals provides the ostensible mandate for hate crime
laws, framing their objectives, elements and expressive functions in specific ways. By
criminalising and punishing manifestations of prejudice on the part of offenders, and
by offering extra protection to victims who are the targets of such prejudice, these laws
construct hate crime as a breach of liberal democratic values of equality, acceptance and
respect. In theory, this ideological claim has the capacity to reach beyond the legal
sphere to reconfigure the social norms that govern regimes of difference and otherness.
In this article, I ask: Where and how does the criminal law construct these normative
boundaries? Through what principles and practices is a demarcation drawn between con-
duct that amounts to hate crime and conduct that does not meet this threshold? This
analysis of the law in action provides a material foundation for reflecting on the capacity
of hate crime law to engage in larger constitutive processes of resistance and remoralisa-
tion (Mason, 2014; O’Malley, 1999).
To consider these questions, I employ the concept of the hate threshold. The hate
threshold is a heuristic device for examining the principles and practices that turn an
ordinary crime into a hate crime and the normative messages contained within these
legal constructions. The hate threshold takes the three major elements that are common
to most hate crime statutes – emotion, causation and difference – as an initial framework
for analysing and comparing how the legal rules are operationalised at different points in
the criminal justice system (e.g. police investigation, prosecutorial discretion or judicial
pronouncements). Drawing upon the first national study of hate crime law in Australia,
I use this framework to analyse how sentencing aggravation provisions, for offences
motivated by prejudice or group hatred, have been interpreted by the courts. This anal-
ysis reveals that Australian courts have set a relatively rigorous threshold for the kind of
offender sentiment that is necessary to enliven the provisions and the extent to which this
sentiment must actually cause the criminal conduct. It is the development of a hate
threshold around the element of difference that proves most controversial. Two issues
emerge as worthy of further consideration. The first is the judicial application of senten-
cing aggravation provisions to provide protection and recognition to victims targeted
because they were perceived to be ‘paedophiles’. The second is the disproportionate
number of cases where the prosecution sought to invoke the provisions against offenders
from racial, cultural or religious minorities. If we accept that hate crime laws are a form
of moral training designed to resist and challenge established notions of ‘good’ and ‘bad’
citizens, we must ask, what happens to these perlocutionary effects when law misfires
(Butler, 2010; Callon, 2007)? In other words, what are the implications of drawing a
legal threshold around victim and offender attributes that do little to progress, or may
actually contradict, the normative aspirations of these laws?
This article begins by considering how discourses of punitive justice and social justice
have influenced the enactment of hate crime laws in Western nations and the bold ideo-
logical claims that flow from these statutes. It then turns to the hate threshold to analyse
cases where the application of hate crime sentencing laws have been given serious
294 Social & Legal Studies 23(3)
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