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Hate crimes: Sexuality as an additional aggravating factor

Wed 13 Feb 2002 In: Features

"Hate crime" legislation, which includes sexuality amongst other criteria, is to be added to the Government's new Sentencing And Parole Reform Bill, which aims to ensure perpetrators of the worst crimes get longer sentences. The following is an excerpt of text from the seklect committee's recommendations, which includes content prepared by Wellington Gay Rights activist Calum Bennachie (referred to in the text as "one submitter") One submission asks for hate crimes to be added to the list of aggravating factors. The submitter provides numerous examples of violent offending, including murder, against members of the lesbian, gay, transgendered and bisexual communities (LGBT), while indicating that similar actions are made against other groups of people simply because they belong to a specific or identifiable group. It is clear that many of the offences were committed out of hatred for members of these communities, rather than because of a personal animosity towards the individual victim. Most of us recommend adding a new aggravating factor to be taken into account in sentencing to cover crimes involving hostility towards a group of persons, where the persons have an enduring common characteristic such as race, colour, nationality, religion, gender identity, sexual orientation, age, or disability (new subclause 9(1)(ga)). This is further strengthened by new subclauses 9(1)(ga)(i) and (ii). Although this new clause lists groups which may be the targets of hate crimes, subclause 9(4)(a) allows the court to take into consideration any other aggravating or mitigating factor it thinks fit. We see this as a matter for the court's discretion, on the understanding that the common characteristic in question be of a similar kind to those listed. We received advice from the Law Commission on the treatment of hate crimes in other jurisdictions and in particular the treatment of the hate crime element as an aggravating factor in determining sentences. The report notes there are two main forms of hate crime legislation. It either creates free-standing criminal offences for acts motivated by prejudice against a certain race, ethnicity, or sexuality etc or it permits a sentencing court to increase the penalty attached to existing crimes if the perpetrator acted as a result of hatred against a certain group of people. Canada, the United States and the United Kingdom have specific legislation on the issue of hate crime in relation to sentencing. Both Canada and the United States define hate crime to cover that motivated by prejudice against race, colour, religion, national or ethnic origin, gender, disability and sexual orientation. In the United Kingdom sentencing legislation, in relation to hate crime, is limited to racial aggravation. Prior to such legislation, it was an accepted sentencing principle in some jurisdictions in the three countries that hatred acts as an aggravating factor which increases the severity of the offender's crime and hence, the sentence to be imposed. Most of us agree hate crimes involve behaviour which indicates hatred towards a group (or towards someone who is assumed to be a member of a group) on the basis of their common characteristic. Most of us note this kind of behaviour indicates there is something wrong with the way the offender thinks. Offenders who commit hate crimes need to be punished/dissuaded further, as prejudice presents a long-term threat. A focus on hate crimes has the effect of both denouncing them and encouraging awareness of their existence. It is very important that police in particular understand when an offence may have been a hate crime. Most of us recommend that police be trained and equipped to monitor, recognise and deal with hate crimes. Most of us agree that hate crimes represent the point at which we want the law to say ‘we simply will not tolerate' this kind of behaviour. At this point, it is important for the court to send a real message on fundamental values. There is a different moral quality and a different risk to society which we should be reflecting. One submitter calls for the legislation to prevent the use of the so-called Homosexual Advances Defence (HAD), arguing that it ‘provides an indirect sanctioning of homophobic violence'. The amendment to the Crimes Act 1961 this submitter recommends is outside the scope of the bill. We note this area will be considered as part of the Government's intended review of all criminal defences and most of us recommend consideration is given to this issue at that time. - 13th February 2002    


First published: Wednesday, 13th February 2002 - 12:00pm

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