2.2.2 Analysis of Persons Who Commit Hate-motivated Violence
What do we know about those who commit hate-motivated crimes? Daniel Goleman, in an 1990 article for The New York Times, summarizes the findings of American scientists studying hate crimes, focussing on who commits such crimes, what motivates them, and exactly why people who would not commit violent crimes on their own act so freely in groups. These findings are:
(a) They are far more lethal than other kinds of attacks, resulting in the hospitalization of their victims four times more often than is true for other assaults;
(b) They are crimes of youth: most of those who perpetrate them are in their teens or 20's. But they are not crimes of youthful rebellion: those who carry them out are venting feelings shared by their families, friends and community;
(c) The large majority are committed by people in groups of four or more. And the more people in the group, the more vicious the crime; and
(d) They reflect the primal emotions aroused by love of one's own group. These deep feelings of group identity are particularly vivid in times of economic and political uncertainty and among people who suffered emotional neglect as children.<51>
Given these data, some legal commentators have questioned the utility of creating specific crimes of hate-motivated violence. It has been argued that the bias attack is seen by the perpetrator as a positive act that reinforces the attacker's love for the group to which he or she belongs. Because of the "mindless" nature of the hate crime, hate crimes legislation has little, if any, general deterrent value and any special deterrent value depends upon the offender's disassociation from racist elements of his group following release, an unlikely rehabilitation.<52>
It is also argued that hate crime laws might actually increase bigotry. As regards the offender, punishing a person for hate-motivated behaviour is unlikely to cure a person of his or her hate; if the offender goes to jail, the hatred will likely be reinforced, and the offender will probably feel very resentful towards the very group to which the victim belongs. As regards the larger population, one argument is that these laws may stir resentment of minorities among the larger population. For example, persons may believe that the minorities are being treated in a more favourable manner, leading to resentment like that of children who dislike a "teacher's pet". Another argument is that hate crimes legislation may act to disempower minorities, because it implies that minorities are incapable of holding their own without special protection. This may lead some members of the majority population to believe that there is something really wrong with the minorities. And, there is the danger that the hate crime laws may be used against minority members.<53>
Ancillary problems are also pointed out. For example, there is the difficulty of drafting legislation in this context. As American legal commentator Susan Gellman argues, the drafting of an ethnic intimidation statute requires a series of "near Solomonic decisions", such as what types of bias to address: race, religion and ancestry only, or sex or sexual orientation as well? What types of behaviour should be included: symbolic acts such as cross-burning, or existing crimes committed with a bias motive? Should intraethic as well as interethnic situations be covered? Should standards be subjective or objective? At what point does behaviour become criminal instead of merely being offensive? For example, is "slut" a sexist or a personal slur?<54>
Another American legal commentator argues that a further problem with these crimes lies in proving that the accused was motivated by racism. In the absence of an explicit admission of racial motivation, inferences about motive would have to be drawn from circumstantial evidence, inferences that may be highly inaccurate given the
inherent ambiguity of motive.<55> Prosecutors may have a
difficult time proving racist motive because multiple
motives may impel an individual to action, and the
prosecutor may have difficulty proving the racial motivation
in the face of the existence of other motivations.<56> As a
result, it is contended that the requirement of proving
motive has seriously undercut the efficacy of existing hate
crimes. Prosecutors, rather than risk an acquittal on a
charge under a hate crimes statute, often charge a person
who has committed a crime evidencing racial motivation under
traditional criminal law statutes. And, a jury's reliance on
its own subjective intuitions about the motivations behind
an individual's conduct may encourage arbitrary application
of the statutes against disfavoured groups for whom the
statutes were intended in the first place.<57>
This chapter has shown that, historically, Canada has not been free of incidents of hate-motivated violence. Recent Canadian data on the scope of such violence have been limited in scope. For example, the League for Human Rights of B'nai Brith Canada audits anti-Semitic incidents that are reported to it. Jeffrey Ross's quantitative analysis of right-wing violence in Canada did not include an examination of incidents of hate-motivated vandalism such as cemetery desecration. Indeed, different conclusions have been expressed as to just how serious a problem such violence is, in the Canadian context. Nonetheless, Canadian data relating to hate-motivated conduct are not collected and reported systematically by police forces on a national scale. In contrast to Canada, other jurisdictions, such as the United States, England and France, have put in place reporting mechanisms that provide a more comprehensive national picture of the scale of hate-motivated behaviour; or, like Australia, have created a national inquiry to examine the scope of such violence throughout the country.
As regards what such data reveal about those who commit hate crimes, certain American studies indicate that these crimes are more vicious than other kinds of attacks, that they are committed by youths, often in groups, and that they are committed by those who have strong feelings of group identity. This has led some American commentators to question the effectiveness of hate crimes legislation as a deterrent to hate-motivated conduct or as a means of decreasing the level of bigotry within society.
Nonetheless, in the Canadian context, the present law clearly views hatemotivated violence as serious criminal conduct deserving of greater punishment than that accorded the usual commission of a crime. This will be explored in more detail in the next chapter.
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