CRIM10001 Lecture Notes - Lecture 9: Sydney Gang Rapes, Verbal Abuse, Hate Speech Laws In Australia
29 May 2018
School
Department
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Professor
Week 9 Lectures
Hate Crime
Key Questions
• Are words conduct in themselves or do they cause conduct?
• What is the dynamic of hatred? Does hate carry enough force to be a cause of violence?
• What are the conditions for collective acts of hatred?
• What is the relationship between feelings of hate and action towards another? What are its
effects?
Definitions
• “[A hate crime] is mostly commonly motivated by prejudice, bias or hatred towards a particular
group of which the victim is presumed to be a member. As such, hate crime is generally directed
towards a class of people; the individual victim is rarely significant to the offender and is most
commonly a stranger to him or her” -Mason, 1993
• “A class of crimes characterised by the motivations of the offender rather than any distinction in
the act itself” -James, 2005
• What makes hate crime so complex is that victims are chosen not because of who they are as an
individual, but because of their presumed membership to a group. This complicates the profiling
of victims.
• It is an unusual offence; most crimes are characterised by the acts themselves, but hate crimes
are characterised by the offenders’ motivations. In criminal law, there is a general assumption
that an act is committed intentionally and motivations aren’t as strongly considered.
Laws Against Hate Crime
Substantive Offence Model
This is the existence of criminal law which legislates against particular crimes that are motivated by
hatred. This model is employed in Western Australia, whereby their Crimes Act has specific
provisions which criminalise conduct which racially harasses others or incites racial animosity.
Most other states use anti-vilification laws instead, which mean that it is not possible to be brought
before a court and charged with a hate crime. There are alternative ways that these crimes are
dealt with in such states, in which people are charged with more specific crimes. This can
complicate the matter, because the state simply has to prove the act, not the intent. While the act
can itself be a general category of crime (assault), to define it as a ‘hate crime’ in criminal law adds
extra obligation on the state’s behalf. They are required to not only demonstrate to the satisfaction
of the court that the act has occurred, but also that the motivation was prejudice or fear.
Penalty Enhancement Model
This model imposes additional penalties if an offence is motivated by prejudice.
Sentencing Aggravation Model
In this model, the courts have the discretion to increase penalties if the offence was motivated by
prejudice. Judges and Magistrates are provided the opportunity to determine whether or not bias or
prejudice was an aggravating factor. If they find an offender guilty of their charged offence, and if
they also determine that bias or prejudice played a role, they may sentence the offender to a
lengthier sentence. There is no obligation to do this, but they are entitled to do so. This avoids
some of the complexities of trying to locate hate crime provisions within criminal law legislation.
This approach is common in Australia.
Anti-Vilification Laws
These laws define particular types of prejudice (pertaining to race, skin colour, nationality,
descent/ethnicity, homosexuality, HIV status or transgender status). The types of conduct that
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these laws define include speeches, graffiti, abuse in public, stickers/badges bearing slogans,
posters, and statements made in media forums.
The criteria for vilification includes:
• Conduct occurring in public
• Needs to be considered likely to incite hatred in others
• There are some exemptions of conduct (e.g. a fair reporting of something in the media, acts that
are done “reasonably and in good faith” for academic, artistic, scientific research or other
purposes “in the public interest”, statements made in parliament)
Vilification is not to do with actions, or things that are crimes in their own right), but concerns itself
with words or thoughts that are publicly expressed which are prejudicial. However, there’s always
been a blurry line between vilification and crime. It is only in the jurisdictions that have specific anti-
vilification laws, which then graft motivations on to behaviour, where it is not unlawful in its own
right.
Hate Crimes in Australia
National Enquiry into Racist Violence 1991
There were 950 complaints lodged by people of ethnic minority backgrounds, 66% of which
concerned verbal abuse, and 12% concerned physical abuse.
International Criminal Victimisation Survey 2005
Middle-Eastern and Vietnamese respondents reported that 1 in 2 verbal attacks were racially
motivated, and that more than 1 in 3 physical attacks were.
Forms of Hate-Based Violence
• Homicide of gay men: Beating is the most common cause of death. A high proportion of victims
are killed by a stranger, in attacks of exceptional brutality and were often carried out in groups.
• Violence and verbal abuse against those who have HIV
• Verbal abuse and intimidation of lesbians
• Racially motivated violence
Motivation in Hate Crime
There are 4 reported motivations for hate crime:
1. Thrill
2. Defensive
3. Retaliatory
4. Mission
Types of motivation give clues about the characteristics of the attack that can be used to:
• Determine culpability of apprehended offenders
• In police investigations where no offender has yet been found
The basic underlying factor found throughout all the hate offender groups is bigotry.
Thrill Motivation
• This motivation accounts for 66% of hate crimes.
• It involves motivation by a desire for excitement or thrill, or simply by boredom.
• 90% of incidents involved offenders leaving their own neighbourhood to search for a victim.
• Investigators viewed these attacks as “triggered by an immature desire to display power and to
experience a rush at the expense of someone else”.
• The only benefits are a “sadistic high and bragging rights with their friends”.
• Mostly committed by young men.
Defensive Motivation
• This motivation accounts for 25% of hate crimes.
• It involves motivation by a desire to protect the neighbourhood or community from ‘others’.
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Document Summary
Definitions: [a hate crime] is mostly commonly motivated by prejudice, bias or hatred towards a particular group of which the victim is presumed to be a member. This complicates the profiling of victims: it is an unusual offence; most crimes are characterised by the acts themselves, but hate crimes are characterised by the offenders" motivations. In criminal law, there is a general assumption that an act is committed intentionally and motivations aren"t as strongly considered. This is the existence of criminal law which legislates against particular crimes that are motivated by hatred. This model is employed in western australia, whereby their crimes act has specific provisions which criminalise conduct which racially harasses others or incites racial animosity. Most other states use anti-vilification laws instead, which mean that it is not possible to be brought before a court and charged with a hate crime.
