5.4 New Zealand
New Zealand has a crime of inciting to racial disharmony. Section 25 of its Race Relations Act 1971 states that every person commits an offence "who with intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons, publishes or distributes written matter or broadcasts words which are threatening, abusive, or insulting or uses in any public place, etc., words which are threatening, abusive, or insulting, being matter or words likely to excite hostility or ill-will against, or bring into contempt or ridicule, any such group of persons in New Zealand on the ground of the colour, race or ethnic origins of that group of persons."<167>
However, there is no specific crime of hate-motivated
violence in New Zealand. So far as the Department of
Justice of New Zealand is aware, no research is being
undertaken or planned by government-funded agencies on the
topic of hate-motivated crime, nor is there any interest
there in creating separate offences for such crime. It has
generally seemed satisfactory for such crime to be dealt
with under the offences listed in the Crimes Act 1961
according to the specific injury or damage committed. <168>
5.5 Federal Republic of Germany
5.5 Federal Republic of Germany
The Penal Code of the Federal Republic of Germany has legislated certain hate crimes such as the crime of criminal agitation ( 130), which includes, in a manner likely to disturb the public peace, attacking human dignity by arousing hatred against segments of the population; that of incitement to racial hatred ( 131); and that of the crime of insult ( 185), which, as a result of changes to the complaint process ( 194), can be used to prosecute instances of Holocaust denial.<169 >
However, in German criminal law there are no special
criminal offences covering racially motivated attacks and
superseding general provisions (e.g., those on murder,
manslaughter or infliction of bodily harrn3. However,
racist motives for committing a crime would be used as an
aggravating factor in the determination of punishment,
although the penalty imposed would have to lie within the
spectrum of punishment provided by the Code.<170>
At the time of writing this paper, there are criminal offences found in the current Penal Code in France (in force until September 1, 1993) that criminalize certain discriminatory conduct (e.g., section 416 -- refusal to provide goods or services by reason of racial and other discrimination). There are also offences found in the law governing the press that penalize hateful defamation or insult, as well as provoking discrimination, hate or violence towards a person or a group of persons by reason of their origin or their belonging to or not belonging to an ethnic group, a nation, a race, or a religion.<171> However, the current Penal Code does not contain specific crimes of hate-motivated violence (such as hate-motivated assault). Robin Oakley, in a consultant's report to the Council of Europe on racial violence and harassment, states:
In considering racial violence and harassment, it must be observed that the law on racism is primarily concerned with verbal and written actions, and not those of direct physical attack. The latter incidents are dealt with under the general penal code. The element of racist motivation is not taken into account by the penal law, either as an offence, nor as a factor in sentencing. In January, 1985, however, a change was made to allow anti-racist organizations to take legal action as civil parties in cases where the "racial" dimension is present.<172>
It should be noted that France has recently adopted a new
Penal Code, which will come into effect on September 1,
993.173 It contains, with modifications, the crimes of
discriminatory conduct found in the present Penal Code.
Generally, the new Code does not provide for specific crimes
of hate-motivated violence (although one exception is that
the new Penal Code specifically provides that attacks
against corpses or cemeteries that are hate-motivated are to
result in a greater penalty<174>).
The Swedish Penal Code contains, in Chapter 3, On Crimes Against Life and Health, the crimes of murder, assault, and aggravated assault,<175> and, in Chapter 5, On Defamation, the crime of insulting conduct, which can be prosecuted by the public prosecutor and not just by the aggrieved person where the insult alludes to a person's race, skin colour, national or ethnic origin, religious creed or alleged homosexual inclination.<176> There is no specific crime of hate-motivated violence. However, there are other crimes that address racial hatred or racial discrimination. Chapter 16, On Crimes Against Public Order, prohibits agitation against an ethnic group (Section 8), and unlawful discrimination in the conduct of business (Section 9). A person who infamously treats a corpse or who damages a grave, et cetera, can also be sentenced for crime against the peace of the tomb (Section 10).
Recently, a commission set up to investigate the need for,
and drafting of, legislation against racist organizations,
proposed, among other proposed amendments to the Penal
Code, that racist motives for or racist components in a
crime should constitute a general ground for the increase
in the severity of a punishment, but the government has not
yet acted on this proposal (or on the others).<177>
This chapter has outlined how the criminal law in certain foreign jurisdictions _in the United States, in some Commonwealth countries, and in some Western European countries_attempts to combat hate-motivated violence. Although no uniform criminal law approach has been taken, at the very least all these countries have regarded hate- motivated violence as a serious problem that needs to be addressed. The most vigorous criminal law response has been taken by the United States, where many states have legislated specific hate crimes, where the Congress has been considering creating an amendment to the federal sentencing guidelines that would enhance the penalty for federal crimes that were hate-motivated, and where hate crime statistics, by the operation of a federal hate crime statistics act, are compiled nationally. Generally, excepting crimes of incitement to racial hatred, the approach of the other countries appears to be to rely on basic crimes (such as assault) to prosecute incidents of hate-motivated violence, rather than to create specific crimes to address such violence (such as hate-motivated assault). But this has not meant that the problem of racist violence has been ignored. In England, for example, the emphasis is on using existing criminal law provisions and on using a multi-agency approach to better combat such violence. And, in some countries, such as Australia and Sweden, it has been recommended that the criminal law be changed to combat this problem more directly. For example, in Australia two national reform agencies have recommended the creation of specific crimes of racist violence. In short, these jurisdictions have, for the most part, recognized the seriousness of hate-motivated violence either by legislating on the issue or by studying the issue and/or using means other than legislation to combat the problem.
It must be recognized, however, that circumstances can arise where, although it cannot be said that the attacker was motivated by hatred of a person's actual or perceived race, religion, colour, et cetera, nonetheless the circumstances of the violent behaviour raise the spectre of mistreatment of a visible minority by the criminal justice system. Perhaps the best known example of this kind is the Rodney King beating. Does the response of the American criminal justice system to the Rodney King beating offer an additional means by which to combat bias-motivated conduct? This will be addressed in the next chapter.
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