The OSCE’s Practical Guide to Prosecuting Hate Crimes: Summary and Observations

 

By Isabella Spano

Graduate at the University of Bologna

 

The guidelines contained in Prosecuting Hate Crimes: A Practical Guide[1] were published by the Organization for Security and Co-operation in Europe (OSCE) with the participation of the International Association of Prosecutors. They were released in September 2014 as a complementary tool to the OSCE Office for Democratic Institutions and Human Rights (ODIHR)’s Prosecutors and Hate Crime Training (PAHCT).[2] If the latter is a programme envisioned to improve the response of prosecutorial authorities to the phenomenon of hate crimes through specialized training, the first explains the nature and impact of the phenomenon, as well as the issues arising from these offences.

 

Memory and bias motivated crimes: an introduction

By nature, whether more or less serious and violent, hate crimes and their relative bias have a close connection to collective memory or “historical truth”. Historically, societies have created truths and memories around what I call “target groups”, often with the intent to justify their vicious victimisation. These facts, however false or bigoted their interpretation, serve as a tool to build a widely accepted narrative to the detriment of minorities and vulnerable groups. This was the case, for example, with hate crimes against LGBT individuals and groups throughout the 80s, after the HIV and AIDS epidemic; or even centuries ago, in the Middle Ages, during the hysteria over the plague which people blamed on Jewish minorities. These false and manipulated memories served the purpose of creating scapegoats and excluded unwanted members of society. Just as it happened then, but without the past malicious intent, communities, through the channelling activity of national and supranational legislators, espouse the historical memory of those target groups, this time in order to counter and not to justify violence and hate. Memory laws create a collective memory, with the intent to protect weaker members of a society, whether successfully or not. In fact, hate crimes or bias motivated crimes represent one of the many phenomena that memory laws intend to counteract. Nowadays, we find ourselves with two – or more – collective memories: the society channels its memory through the legislator while hate crime perpetrators and extremist groups and individuals incited by their narrative, often build their “false truths” through online instruments such as social media interactions. This makes the knowledge of bias motivated crimes essential to the study of memory laws.

 

What is a hate crime?

Hate crimes are criminal acts characterized by a bias motive in which the offender chooses their victim, not due to personal “hate” towards the individual but based on a prejudice held against the group to which the victim belongs. The targeted group is identified through so-called protected characteristics, which create a group identity as well as part of its members’ individual identity (e.g. language, gender or ethnicity). These features are often rigid and immutable. However, there are some peculiar instances in which the perpetrator will target individuals who are not members of the group object of the bias motive. This can happen when the victim is mistakenly believed to be part of a target group (e.g. a Sikh man wearing a turban who gets mistaken for a Muslim man and is attacked due to this erroneous perception) or when the targeted individuals are victimized due to their association with the group or its members, against which the offender has a bias or prejudice (e.g. interracial couples, human rights activists and organizations).

Conduct classifiable as a hate crime can be committed against people as well as against property, when the latter is associated to a particular group and the conduct has the qualifying element of the bias motive (e.g. neo-Nazi graffiti on synagogues). The offences can vary in seriousness, from vandalism to physical violence and even homicide. However, despite only the most gruesome offences being subject of widespread mediatic and public attention, most hate crimes are less serious offences against people or property.[3]

Regarding the profile of a hate crime offender, there is no universal set of characteristics that unequivocally identifies every perpetrator. Surely, they could be part of extremist or politically motivated groups, but most hate crimes are perpetrated by ordinary people who are not linked to any extremist organisation.

 

Hate crime laws

There are two types of laws addressing hate crimes: substantive laws and penalty enhancements.

A substantive hate crime law indicates the criminal conduct in an autonomous provision, including the bias motive as an integral element of the criminalized conduct. It provides for a higher penalty than the norm punishing the same conduct without the bias motive.

A penalty enhancement law, also referred to as aggravating circumstance provision, increases the penalty for a base crime when it is committed with a bias motive.

The characteristics protected under hate crime laws may vary depending on the jurisdiction, but the usual minimum core of protection includes race, nationality and religion. Often included are also sex, gender, disability, sexual orientation and gender identity.

The controversial term “race”, despite being rejected by the international community as a classification of different human “races”, is often used in international and national laws as an umbrella term to include ethnicity, skin colour or national origin.

Intersectionality must be taken into consideration when evaluating hate crimes, in particular relationships between gender and other protected characteristics (e.g. attacks on Muslim women wearing hijabs might be targeting both gender and religion).

In case of mistaken perception, namely when the offender believes the victim to be part of a group toward which he has a bias or prejudice, most hate crime laws will allow prosecution, since they usually focus on the motive of the offender rather than on the victim’s actual membership to the target group.

 

How to build a hate crime case

The bias motive is sometimes immediately evident (e.g. use of words or symbols showing bias). When this is not obvious, bias indicators can justify further research into a bias motive. Some countries list these indicators to help authorities investigate (e.g. In Poland, the Ministry of Interiors released a list of the most important bias indicators [4]).

Although any group can be victim of a hate crime, minority groups suffer from hate crimes disproportionately. If the victim belongs to a minority and there is no other apparent motive for the alleged hate crime (e.g. economical), the brutality of the attack, often seeking to dehumanize the victim, should warrant a further investigation into a possible bias motive.

Evidence of bias motive can derive from the display of symbolism (e.g. swastika, Celtic cross). When the symbolism is not widely known, authorities should rely on expert consultation, as well as internet searches.

Depending on the legislation, the evidence might need to prove the perpetrator’s “hate” – hostility model – a subjective approach; or prove that the victim was targeted due to the actual or presumed membership to a group – discriminatory selection model – an objective approach.

Hate crimes are highly under-reported due to several factors:

• Fear of being identified as member of a group (e.g. LGBT members; irregular or undocumented migrants).
• Lack of trust in the authorities, sometimes due to traumatic experiences such as racial profiling or other forms of discrimination.
• Fear of secondary victimisation (“victim-blaming”) from authorities.
• Particularly vulnerable victims might further fear for their own and their group’s safety, requiring special measures such as witness-protection programs.

To approach victims and witnesses, authorities must avoid being influenced by bias and prejudice themselves and, ideally, create a dialogue with victim groups and individuals.

In case of conflict between the authorities’ and the victim’s intentions on whether to seek prosecution or discontinuing a case, understanding the victim’s perspective is key. Moreover, prosecutors should indicate support services for victims (e.g. medical, psychological or legal counselling; victim-support services). Communication with representatives of such services can be helpful to authorities, for example as a medium to better communicate with the victim.[5]

When identifying the possible bias motive, prosecutors should gather enough evidence[6] to sustain the case and to distinguish the hate crime from other offences. In fact, hate crime offenders often want their motives to be publicly known, thus facilitating the gathering of direct evidence. They will, for example, shout racial slurs at the victim, leave hateful messages such as graffiti, or boast about their crime with others. Some offenders may even record the event to later post it on the internet or show to friends. These attitudes make it particularly easy to identify individuals who might be aware of the offender’s motives. [7]

Depending on the jurisdiction, circumstantial evidence[8] might be admissible and, despite being weaker than direct evidence, it might have a persuasive cumulative impact together with direct evidence. It is important to note that bias indicators and circumstantial evidence often coincide (e.g. the suspect is associated with hate groups; the criminal act takes place in a temporal and special context significant to the victim group; brutality of the attack and lack of any other motive).

It is important to gather evidence of the physical and psychological injuries suffered from the victim. It could be that a victim, when part of a marginalized group, did not receive treatment. If evidence of psychological injury is not available, the prosecutor should try demonstrating the negative impact of the hate crime on the victim’s psyche by letting the victim present the full impact through the tools admissible in the local jurisdiction.

 

Charging a hate crime case

Depending on the jurisdiction, the prosecutor might indicate alternative charges (e.g. include both assault and racially motivated assault) and when there is not enough evidence for the bias motive, the offender might still be charged with the base crime. Most times, the court will be allowed to determine the most appropriate charge regardless of the initial legal qualification and based on the interpretation of the evidence of the bias motive.

If plea bargaining is allowed in the jurisdiction and the offender agrees to plead guilty on the base offence, the wishes of the victim must be taken into consideration to minimize possible feelings of “betrayal”.

 

Defence arguments

The defence strategy is often to downplay the defendant’s bias motive or hostility, pointing to alternative explanations for the crime. The conduct may be categorized by the defence as another offence not characterized by bias motive in instances when the offender and the victim had a verbal or physical altercation, which the defence might downplay as “just a fight”[9].

When words can both be used as slurs or statements of fact (e.g. “immigrant”, “Gypsy”) the defendant may claim to have used them as mere observations and not to discriminate. However, the hostile context is essential to understand the discriminatory intent of words. Similarly, some symbols may not express intolerant meanings per se, and it is important to contextualize them.

The defendant might also claim the absence of the bias motive due to the relationships with people coming from a background similar to that of the victim. This, however, does not exclude bias and prejudice. It is common for prejudiced people to know and like individuals from the victim group while viewing them as an exception, and still hold their prejudice toward the group as such and its other members.

 

Sentencing a hate crime

When hate crime law provides for a penalty enhancement provision, a judge might refuse to find the defendant guilty based on a bias motive if evidence of such motive was not included in the trial phase. Similarly, in case of a guilty plea, the bias motive must be included in the accepted facts.

The court, when sentencing, might order financial restitution to the victim when it is proven they incurred in expenses due to the crime (e.g. medical care, repairing damaged property). The victim should be advised to keep and submit to the authorities the receipts for these expenses.

Additional measures might need to be considered by prosecutors to protect the victim and their community. The special needs of victims should also be taken into account when proposing a sentence. If a hate crime is committed by a minor, the treatment of the defendant will be different from that of adults. Increased penalties may not be appropriate in these instances and working with these offenders could be an opportunity to address their bias. However, the offence should not be dismissed as a mere childhood conduct, rather, authorities should promote rehabilitation while still deeming the nature of the hate crime and the bias motive unacceptable.

 

Policies and procedures to help hate crimes prosecution

To better recognize and prosecute hate crimes, providing training to authorities is essential. The training must be tailored to the peculiarity of local experiences and targeted groups. Special national and international policies may be implemented to assist the authorities in their understanding of hate crime cases. In this context, OSCE Office for Democratic Institutions and Human Rights (ODIHR) has developed the Prosecutors and Hate Crime Training (PAHCT)[10] programme, which can be incorporated to national legislation. Moreover, specialized hate crime units might be formed by prosecution agencies. These units can prosecute hate crimes directly or provide support to prosecutors, as well as work with police forces.

Prosecutors should build communication with vulnerable communities before hate crime cases, favouring future cooperation of victims and witnesses. These connections might also ensure the prevention of hate crimes and prompt intervention of police forces when tensions arise. This can be achieved by meeting with vulnerable groups to discuss current issues in the community, and participation of prosecutors in public awareness events and activities, together with representatives of the community. These activities, as well as keeping communities informed of their rights, can encourage more victims to come forward and increase their trust in authorities.

It is important that prosecutorial authorities do not underestimate the impact of the media on the perception of hate crime prosecution, and therefore they will sometimes establish protocols for dealing with media outlets. Efficacious coordination with the media ensures appropriate and accurate reporting of information about a case to the public.

What authorities should avoid is, for example, to exclude the possibility of a bias motive from the beginning, with the intention to calm potential tensions. This could be counterproductive, weakening the trust of communities in authorities to investigate the bias motive. Similarly, authorities should not publicize a bias motive solely based on the victim’s perception. They should first establish evidence substantiating the bias element.

OSCE participating States have committed to collect and share data on hate crimes. The data is also made publicly available through ODIHR’s annual hate crime reports[11]. Monitoring activities help evaluate the effectiveness of programmes addressing hate crimes, and improve the analysis of hate crime patterns. Prosecution offices can develop data-collection policies and systems and collaborate with other governmental agencies to increase their effectiveness.

All individual steps indicated in the guide should be undertaken simultaneously, and should involve the police, prosecutors and civil society by raising hate crime awareness, professional training and monitoring, as well as judicial training on hate crimes for the competent institutions within the judiciary.

 

Conclusive observations: Memory laws in the fight against hate crimes

The summarised guidelines analyse a phenomenon which can result in extreme acts of violence and, therefore, which requires diversification of efforts and methods to counteract it. In this perspective, the role of memory laws can result in a diverse set of advantages, as well as potentially counter-producing results.

Firstly, the participation of victim groups and individuals represents a central means to counteract hate crimes and bias. However, victims can often display a mistrusting attitude towards authorities, whether due to past discriminatory experiences or fear of future repercussions, both ingroup and outgroup, requiring efforts from prosecutorial authorities to build communicative bridges with target groups and individuals.

The peculiar nature of memory laws can represent, in the eyes of minorities and victims of bias, a broader societal willingness to recognise their historical victimization, with a reparative intention, to favour cooperation and dialogue. Inclusiveness and intergroup integration could ease the development of a long-lasting cooperation between victims and prosecutorial authorities.

Particularly relevant is the phenomenon of secondary victimization or “victim-blaming”, a very relevant fear of victim groups and individuals which discourages them from reporting hate crimes. The recognition of historical victimization could encourage victims to report crimes while knowing that they will be listened to, and foster a trusting relationship with law-enforcement, as well as other national and supra-national institutions.

The goal of numerous memory laws is to ban extremist groups and ideologies which are a fertile environment for bias and prejudice development. If successful, these norms would directly target the ideological core of potential hate crime offenders, serving as a tool in the prevention of hate crimes. Although, from a different perspective, the employment of memory laws could potentially create a hostile environment toward target groups themselves due to the perceived martyrisation of hate-inciting offenders who might be seen by their peers, and possibly even outgroups, as persecuted “free-thinkers”. In fact, in the attempt to marginalize risks of bias-motivated crimes, the outcome might be the opposite, that is, unintentionally promoting a hostile environment for target groups and individuals.

The multifaceted outcomes of the employment of memory laws, here strictly considered from the perspective of countering hate crimes, should prompt particular attention of national and supra-national legislators, who should evaluate the risks and benefits of said norms, and adapt their content in a particularized effort.

 

Footnotes

[1] OSCE/ODHIR, Prosecuting Hate Crimes: A Practical Guide, Warsaw: OSCE, 2014. The complete guide can be found at https://www.osce.org/odihr/prosecutorsguide. Retrieved October 25, 2018.

[2] ODHIR, Prosecutors and Hate Crimes Training (PAHCT), Warsaw: OSCE, 2014.The PAHCT programme description can be found at https://www.osce.org/odihr/pahct. Retrieved October 25, 2018.

[3] For a classification of related issues and conducts (e.g. Hate Speech) see Prosecuting Hate Crimes: A Practical Guide (2014), pp. 22-24.

[4] Ibid. “Excerpt from “Hate Crimes: General Information for Police”, Polish Ministry of Interior”, pp. 47-48.

[5] Ibid. “Case example: Working with victims who have special needs”, pp. 55-56.

[6] Admissible evidence will depend on national criminal procedures.

[7] For a list of types of direct evidence see Ibid. p. 60.

[8] Ibid. “Case example: Using circumstantial evidence to prove bias motivation”, pp. 61-62.

[9] Ibid. “Case example: A hate crime murder – not just a fight”, pp. 68-69.

[10] Ibid pp. 76-77.

[11] ODHIR’s annual hate crime reports can be found at http://hatecrime.osce.org/. Last viewed December 6, 2018.