The political polarisation that has dogged our country since the 1960s – which, unfortunately, plays out as racial polarisation and violence – was once again intensified by the political cynicism of the People’s National Congress (PNC) following the March 2 General Election. But amazingly, there has been no prosecution of those who perpetuated the violence even though it was clearly racially directed. While the violence was clearly criminal in that it was manifested in beatings, arson, destruction of property, it was accompanied by taunts, etc, that confirmed the racial nexus.
Similar crimes are also directed against specifically distinguished persons based on such criteria as colour, sex, gender, sexual orientation, etc. In some countries, they have been legislatively addressed by the juridical concept of “hate crimes” in an effort to deal with their effects and their elimination. Maybe we should have a discussion in Guyana as to whether persons can pursue civil suits – individually or as a class action – for hate crimes.
Back in 2017, Scotland revived their laws on hate crimes and its “Report to the Hate Crime Legislation Review” might offer a salutary background for our discussion. From the legislative perspective, it defined hate crimes as the creation of offences, or sentencing provisions, “which adhere to the principle that crimes motivated by hatred or prejudice towards particular features of the victim’s identity should be treated differently from ‘ordinary’ crimes”.
Hate crimes legislation can be divided into two categories. First, sentence aggravation provisions, which do not create distinct criminal offences, but allow for offences aggravated by prejudice to be recorded as such and require the aggravation to be taken into account in sentencing. Secondly, substantive offences, which primarily consist of offences relating to the stirring up of racial hatred, but also include offences of racially aggravated harassment and threatening communications intended to stir up hatred on religious grounds.
The possible justifications can be divided into three broad categories: harm-based justifications; culpability-based justifications; and denunciation-based justifications. Assessing the available evidence, it concludes that the argument that hate crimes are – compared to parallel non-hate crimes – more likely to cause harm both to the direct victim and to members of the group to which the victim belongs or was perceived to belong is particularly compelling. The argument that it is important to send a message to victims of hate crime that bias and inequality of treatment is roundly condemned by the State is also persuasive. Collectively, the harm argument and the denunciatory argument (and perhaps to a lesser extent the culpability argument) provide compelling justification for punishing hate crimes more severely.
The characteristics generally protected (in one form or another) under hate crime law are race, religion, sexual orientation, disability and transgender identity. There are two specific legislative models to deal with hate crimes. The first is the discriminatory selection model (where a hate crime is committed where the victim has been selected because of their membership of a protected group). The second is the animus model (where the offender is motivated by, or demonstrates, prejudice against a protected group). It notes a clear preference for the animus model in legislative practice and strong arguments of principle in support. In relation to punishment, there are three broad models: (i) the penalty enhancement model, (ii) the sentence aggravation model, and (iii) the substantive offence model, noting that jurisdictions may choose to combine these models rather than choosing one alone. It concludes by outlining the thresholds specified for a crime to count as a hate crime in a range of jurisdictions, and examines various questions about the precise formulation of these thresholds.
“Hate speech” was also considered. This has been defined as speech that “expresses, encourages, stirs up, or incites hatred against a group of individuals distinguished by a particular feature or set of features such as race, ethnicity, gender, religion, nationality, and sexual orientation”. Hate is primarily relevant not as the motive for the crime, but as a possible effect of the perpetrator’s conduct.
