Minister for Justice Helen McEntee wants to pass hate crime legislation by Christmas. Her long-awaited Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 marks a hugely significant step in Irish law, addressing as it does a growing social ill which causes widespread harm.
There is incontrovertible evidence that hate crimes threaten societal cohesion and cause direct victims more and longer lasting emotional and psychological harm. They cause similar emotional and behavioural harms among community members who share the identity targeted.
The rights of accused people also demand that we legislate against hate crime. Courts in Ireland address hate crime in the absence of a legislative framework, resulting in inconsistencies in the way that such offences are dealt with.
If legislators have the will and the foresight to make these changes, they have the capacity to save this much-needed legislation and ensure that the experiences of victims are recognised and addressed
Whether one is concerned with the needs of society, victims or the accused, introducing legislation to standardise how we address hate crime makes sense. We need to move past the question of why we are introducing such legislation to address the question of how we are legislating against hate crime.
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It is vital that in the politically fuelled discussions regarding criminalising hate speech, we do not ignore the content of the hate crime provisions and what they will mean for our ability to respond to hate crime offending.
While Ireland has had legislation to address incitement to hatred since 1989, if this Bill is passed we will for the first time have specific legislation that addresses hate crime.
The Bill provides that where an ordinary crime – such as assault or criminal damage – is committed with a hate element, then the offender will be charged with a new offence – for example assault aggravated by hatred, or damaging property aggravated by hatred. This conviction will go on the criminal record of that offender, marking them out as a hate crime offender. Sexual, fraud or theft offences – which are too often the form of hate crimes against people with disabilities and LGBTQI+ people – are not included.
There is no requirement that the prosecution prove that they committed the crime because they were motivated by hatred in order for someone to be convicted. Rather, a person who commits an offence for any reason – financial need, greed, addiction, intoxication – and demonstrates hatred towards a group named in the legislation can be convicted.
There is, a qualitative difference between offending motivated by hatred and crimes committed with entirely different motivations where the offender demonstrates hatred to the victim. The Bill will label both types of offenders as people who committed a crime “aggravated by hatred”, which will be on their permanent criminal record.
The argument in support of the demonstration threshold for hate crime that the State is proposing is that motivation is too difficult for prosecutors to prove, and requires that prosecutors get “into the mindset” of the offender.
This lower demonstration threshold would serve well those who consider lots of convictions to be a measure of effective responses to hate crime. But what are the wider implications and unintended consequences?
The Garda – who currently use the motivation, not the demonstration, test for policing purposes – will have to adjust to the resource implications of a much more expansive definition of hate crime.
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Courts will have to deal with many more hate crime prosecutions because what constitutes a hate crime has been defined so broadly, with more trials taking place as defendants plead not guilty to avoid the evidenced stigma associated with a conviction for a hate crime.
Administrative records will not be able to distinguish between hate crime offenders who committed crimes because of hatred and those who committed crimes for other reasons; this may have knock-on effects on the work on probation officers, prison officers and Garda vetting. Prisons will also have to manage the fallout of an expansionist approach to applying the additional penalties associated with a hate crime conviction.
A few amendments are all that are required to avoid these pitfalls and make this legislation operable.
Courts will have to deal with many more hate crime prosecutions because what constitutes a hate crime has been defined so broadly
From international experiences, we know that replacing the term of “hatred” with a definition of “hate” which includes bias, prejudice, contempt and hostility towards a protected characteristic will address the unconstitutional uncertainty created by this ambiguous term and reduce the threshold to a level that more accurately reflects the realities of hate crime offending.
Removing the option to convict someone of a hate crime using the demonstration test will ensure the label of hate crime offender is only formally applied to those people who have decided to criminally victimise others out of prejudice.
The demonstration of hate during crimes that happened for other reasons can be addressed by enhancing the sentences of people who have engaged in this type of harm without their having to carry the label of hate crime offender for the remainder of their lives.
It will be possible to distinguish those motivated by hate for the purpose of Garda vetting, rehabilitation supports and recidivism monitoring. If legislators have the will and the foresight to make these changes, they have the capacity to save this much-needed legislation and ensure that the experiences of victims are recognised and addressed.
Dr Amanda Haynes is an associate professor in sociology. Dr Jennifer Schweppe is an associate professor in law. They are co-directors of the European Centre for the Study of Hate based at the University of Limerick