II. Updates: Hate Crime Provisions
As Human Rights First discussed in more detail in its 2007 Hate Crime Report Card, while governments have an obligation to combat all crime, the hate crime concept is a simple acknowledgement of the greater seriousness of crimes motivated by racial, religious, or other prejudice and hatred that harms whole communities. Hate crime legislation signals a society’s commitment to combat violent discrimination and gives force to this by providing for more severe penalties. A growing number of the 56 countries in the OSCE are adopting criminal legislation to expressly address violent hate crimes. At present, there are over 30 countries in which legislation treats at least some bias-motivated violent crime as a separate crime or in which one or more forms of bias is regarded as an aggravating circumstance that can result in enhanced penalties. However, 23 OSCE countries still have no express provisions in their criminal law defining bias as an aggravating circumstance in the commission of violent crimes against persons. These countries include: Albania, Bosnia and Herzegovina, Bulgaria, Cyprus, Estonia, Germany, Greece, Holy See, Hungary, Iceland, Ireland, Luxembourg, Lithuania, Macedonia, Monaco, Montenegro, the Netherlands, Poland, San Marino, Serbia, Slovenia, Switzerland, and Turkey. Data from government bodies, NGOs, and the media in a number of these countries, such as Estonia, Germany, Greece, Hungary Ireland, Lithuania, the Netherlands, Poland, Serbia, Slovenia, Switzerland, and Turkey indicate that hate crimes are occurring, but criminal justice authorities lack a legislative basis to treat bias as an aggravating circumstance in the commission of these crimes. Of the 39 countries where legislation addresses bias-motivated violence as a separate crime or as an aggravating circumstance, those provisions all cover bias founded on race, ethnicity, and/or national origin, while 32 also cover religious bias. However, hate crime legislation extends to bias motivated by animus based on sexual orientation in only twelve countries and disability in only seven. Bias based on gender identity is explicitly mentioned in criminal law only in the United States—and even there only at the state level in 11 states and the District of Columbia. Legislation that extends to all forms of bias is both a better guarantee of the commitment to provide equal protection of the law to all as well as a practical incentive for criminal justice officials to track incidents, assess public policy, and develop preventative measures for all forms of bias-motivated violence.
The provisions will also allow the existence of the aggravations to be recorded at all levels in the criminal justice system from the initial recording of a crime through to the charging stage, prosecution, conviction and eventual sentence. Upon conviction, where the sentence is different as a result of the aggravation, the court will be required to state and record the extent of, and reasons for, that difference. This will enable Government and practitioners to build up an accurate picture of the extent of these particular hate crimes in Scotland and inform policy accordingly.In the United States, efforts to adopt the Local Law Enforcement Hate Crime Prevention Act of 2007 (LLEHCPA) were unsuccessful. The LLEHCPA, a federal measure that would have expanded the scope of national hate crime legislation, was passed by both houses of Congress, but was ultimately withdrawn in the face of a promised veto by President George W. Bush. The proposed law would have eliminated the requirement that prosecutors must demonstrate that a victim was targeted expressly because of that person’s participation in one of the six federally protected categories, one of the current requirements for application of federal law to a violent hate crime. The bill would also have extended the bias categories under federal protection to include gender identity, sexual orientation, and disability.