JUSTIFICATIONS FOR ALLOWING MORE SEVERE PUNISHMENT FOR HATE CRIMES:
1) They harm innocent third parties. According to Columbia University Law School professor- Kent Greenawalt “such crimes can frighten and humiliate other members of the community, they can also reinforce social divisions and hatred.” Therefore, crimes motivated by race, religion, or national origin have a more profound potential impact on the community than other crimes. The Oregon Supreme Court has stated “ hate crimes create a harm to society distinct from and greater than the assault caused alone. Such crimes because they are directed not only towards the victim but also in essence toward an entire group of which the victim is perceived to be a member.
However, this can be said of all crimes, whatever their motivations and hate crimes are by no means unique in this respect. For example, child abduction and murders strike terror in the hearts of parents throughout the community, state or country whether it is racially motivated or not. (Jacobs & Potter, 1998)
In the UK, in September 1997, the Home Office published a consultation document on the governments’ proposals to outlaw racially aggravated crime. There were three prominent expectations behind the legislation: (Iganski, 1999)
- to act as a deterrent against would be perpretators of racially aggravated incidents
- the promotion of social cohesion
- to provide an stimulus for a more effective response to incidents by the Criminal justice System
Overall, its aim was to provide an educative function by portraying a message that racist bigotry and acts of violence, harassment and damage motivated by such bigotry are socially unacceptable in a multi cultural Britain.
However, in doing so, it is necessary to also take into consideration the social networks and communities that sanction the actions of potential perpretators.
Hate crime is a potentially expansive concept that covers a wide range of offenders and situations. It is socially constructed and the new wave of hate crime laws follows in a long line of civil rights legislation that extends special legal rights and affirmative action to groups that are officially recognised as disadvantaged or victimised. That is ethnic minorities, particularly subjected to offensive harassment will feel more self-confident and will feel that society is on their side.
However, critics in the United States have argued that hate crime laws generate social divisions by raising the visibility of hate crimes and there have been conflicts over which prejudices hate crime laws should include. Also, it remains a controversial matter as many argue that all perpretators of serious crime are equally deserving of condemnation and all victims equally deserving of sympathy.
I will now go onto discuss some more fundamental moral dilemmas encountered by legislating against racism and anti-Semitism- that is the potential conflict between claims to freedom of expression and the human rights of those targeted not to suffer discrimination or prejudice.
HATE SPEECH- According to Laura Lederer, this is “speech and conduct aimed at a group of traditionally disenfranchised people, speech that reviles, ridicules or puts into negatively bad light a person or group based on their race, creed, sexual orientation, religion or ethnicity.”
Claims that legislating against racism and anti-Semitism comes into conflict to the right of having freedom of expression are being used as a particular platform by far right groups in the US and across Europe.
However, in the UK, the House of Commons Home Affairs Committee stated in its report that “free speech may in certain circumstances interfere with people’s other rights- for example, it is argued that those who incite racial hatred claim the right to free speech but they misuse that right to preach a doctrine of hatred and violence, therefore, those who persecute others should themselves be prosecuted by the forces of law and order- they agree that there must be a limit to the extremes to which the principle of free speech can be taken.” (House of Commons, 1994a:xxxii)
There is the common sense assumption that hate speech leads to or provokes violence or discrimination against the groups concerned. (Iganski, 1999)
The Public Order Act, 1986 deals with incitement to racial hatred- but there have been a low number of prosecutions under this law –reflecting the low incidence of manifestos covered by this act as ambiguous language is used to what exactly unlawful entails. Even moderate expressions of dislike or prejudiced ideas may provoke or contribute to unlawful acts by a person who already has feelings of hate.
The British National Party recognises this loophole and uses the legislation to their advantage- instead of sending out abusive and illegal material anonymously they use what they call “polite and reasoned argument”. (Iganski, 1999) This is clearly stated on their Internet site.
In the US, hate speech is typically defended as the price that society has decided to pay for safeguarding free expression. (Owen, 1998) Enshrined in the First Amendment to the US Constitution, freedom of speech can only be restricted in situations where hate speech is likely to lead to immense lawless action- and where no other less intrusive measures that would be more effective are available.
One of the most famous defences of the rights to express hate occurred in the case of Skokie. Illinois- when a US neo-nazi group tried to march on a public street, wearing uniforms and brandishing a swastika, in a community populated by a majority of Holocaust survivors. The courts affirmed their rights to do so basing their argument on the First Amendment. Ironically, the same constitutional provision allowed Martin Luther King to promote racial equality in American society in the 1950s.
HOLOCAUST DENIAL-
A specific case of hate speech is the case of the Holocaust denial – it is seen as an insidious form of anti-Semitism. It serves the agenda of neo-nazi and fascist movements whose allegations include the denial of the use of gas chambers to exterminate Jews and therefore advancing the merits of Nazism. It has been stated by Ken McVay, director of the Nizkor project that “World War 2 revisionism boils down to a form of blatant racism disguised as historical scholarship.”
Lipstadt suggests that the objective of the holocaust deniers is “to plant seeds of doubts that will bear fruit in coming years- when there are no more survivors or eyewitnesses to attest the truth.” (Lipsatdt, 1994:24) But against this, there are many films, documentaries, and dramatic performances keeping the memory alive in many European countries.
Holocaust denial has been outlawed in a number of European countries- Austria, Belgium, France, Germany, and Spain- most of them Member States of the European Community. (Iganski, 1999) In Germany, the holocaust denial is also subject to the civil law aswell as the criminal law which holds that “every citizen of Jewish descent in violated in his individual – civil and personality right when the holocaust is denied. (Kohl, 1993:151)
The Kahn Commission (European Parliament, 1995) recognises the need for the establishment of holocaust denial legislation in all Member State of the European Community- arguing that there should be specific offences of holocaust denial and trivilisation of other crimes against humanity.
However, it would require very complex legislative provisions to outlaw all the subtle ways of stating the holocaust is a lie, and again there is the potential conflict between censoring the holocaust denial and the right to having freedom of expression.
The shows in principle that rights are not absolute but interdependent and that competing interests of society must be in balance- thus affirming the overriding principles of equality and non-discrimination.
It should be borne in mind that hate speech whatever the medium that spreads it- perpetuates negative racist stereotypes, promotes discrimination, and maintains whole groups of people as second class citizens.
It is the subordination of one people by another- the mechanism of subordination simply including insidious verbal or symbolic assault- alongside physical acts.
CONCLUSION-
Although, this irrational hatred is mostly verbal, and mostly based on ridiculously distorted arguments expressed in overly simplistic language the phenomenon remains quite spine chilling.
The most dangerous threat behind hate speech lies in the fact that it can go beyond its immediate targets and create a culture of hate- which makes it acceptable, even respectable to hate on a far larger scale.
Therefore, current legal frameworks are moreover useless when confronted with the sanitised language adopted by racists to make their message more acceptable to a broader audience and thus eschew free speech restrictions.
The solution to hate speech can only be a massive public education effort with the assistance of positive moral leadership, rather than an attempt to censor unpleasant speech.
Tolerance, decency, and fairness each of these virtues contributing to a non-racist society, are qualities, which the threat of legislative sanctions cannot coerce on people- what is required is attitudal and cultural change.
The problems of irrational hate in our society are to a great extent attributable to our social and cultural upbringing, and education will have to play a major role in tackling the phenomenon of irrational hate.
