What is hate crime?

Key definition

Following the definition provided by the OSCE Office for Democratic Institutions and Human Rights (ODIHR), hate crime are ‘criminal offence[s] committed with a bias motive’,^[1] and it can refer to both verbal and physical violence. More specifically, hate crimes are motivated by the perpetrator’s prejudice towards an (often) unchangeable identity trait of the victim. Targeting an identity trait signals that anyone from the larger community of people who shares this trait could be victimized, and hate crimes are considered unique in at least four ways. First, hate crimes cause greater psychological harm to the victim whose identity is under attack. Second, hate crimes spread fear beyond the individual victim to other members of the targeted group.^[2] Third, such crimes have an increased risk of escalating into a wider intergroup conflict than other crimes do, and, fourth, they threaten democratic values and democratic participation.

Hate crime is often associated with a power imbalance between the victim and perpetrator.

Hate crime is considered a judicial term in the penal codes of different countries and often debated in relation to freedom of speech—a pillar of democratic societies. Furthermore, many scholars^[3] would agree that both “hate” and “crime” are social constructions, meaning that what we consider prejudiced or criminal is subjective and will depend on place and time. To be homosexual, for instance, has previously been considered illegal in many Western countries, while today the same countries consider it illegal to discriminate on the basis of sexual orientation.

Hate crime is often associated with a power imbalance between the victim and perpetrator, such as an ethnic majority person targeting a member of an ethnic minority population, or targeting a disabled person.^[4] Thus, hate crimes should be interpreted in the context in which they occurs, i.e., broader historical and societal prejudices relating to, for instance, immigration, religious, and political conflicts.^[5]

Although there are many different perpetrators of hate crime, the emphasis in the penal code is often on the motivation of the perpetrator, where hostility or biased views toward people due to their (assumed) identity typically warrants aggravated sentencing.

History of the concept

The term “hate crime” was first associated with the African American civil rights movement in the 1950-1960s where it was used to frame the oppressed and oppressors as “victims” and “perpetrators”, and thereby question the morality of those who victimize marginalized identity groups. The term was later used by a variety of progressive social movements for women, the LGBTQ community, and ethnic minorities. Narrowly defined as a legal term, hate crime laws were first enacted around 1980 in the US.^[6]

Different conceptualizations

Scholarly efforts to define what constitutes a hate crime center on three core debates. ^[7] The first debate relates to the importance and required evidence of a motive of hate or prejudice. While requiring such evidence makes the law difficult to enforce, so that the extra protection for marginalized groups potentially fails, many still consider it a necessity. Indeed, in recent years, frequent concerns have been raised that what we recognize as hate crimes may not be motivated by prejudice or hate. Instead, hate crimes result from complex social relationships where it is incorrect to define one side as an innocent and passive victim and the other as an evil perpetrator.

A second dilemma concerns whether only dominant identity groups should be recognized as perpetrators, and only marginalized groups as victims, or if all people can fall in either category regardless of whether or not they have a history of marginalization. On the one hand, and according to the principle of equality before the law, legislation should not provide special protection for certain groups.^[8] On the other hand, an opening up for majority reports against minorities may then reverse the original purpose of the law, and further marginalize the marginalized^[9] by framing them as “hateful perpetrators”. To exemplify the potential breadth of the concept, it is worth mentioning the example of a bill in Oregon that called for hate crime protection for capitalists targeted by anti-capitalists.^[10]

A final controversy to mention concerns whether hate crime laws with aggravated sentencing are to be understood as utilitarian or moralizing. From a utilitarian perspective, aggravated hate crime sentencing is justified because hate crimes are believed to cause greater harm than other crimes. From a moralizing perspective, hate crime laws and discourse should be used to “re-moralize the public” that prejudice is wrong, in part by stigmatizing perpetrators. However, it remains unclear whether labeling offenders as “hate offenders” has a positive educational effect on the perpetrator and the public, or merely inhibits offender rehabilitation, while the public remains indifferent.

Due to different judicial understandings of what constitutes a hate crime, as well as variations in the frequency with which they are reported by victims and recorded by officials, it is almost impossible to compare hate crime statistics across countries.

Prevalence of hate crime

Many countries register and publish figures on hate crime offences. The quality of such data, however, vary within and between countries, depending on the resources, knowledge, and focus of the local police. Consequently, such statistics are often uncertain and only cover the “tip of the iceberg” of hate crime incidents.

Recent official figures suggest that, in most European countries, hate crimes recorded by the police are on the rise.^[11] From 2014 to 2018, the recorded incidents went from approximately 3 000 in 2014 to more than 8 000 in Germany, from approximately 52 000 to 111 000 in the UK and from 223 cases to 624 cases in Norway. However, this does not necessarily mean that hate crimes are actually increasing in those countries. For example, it may also be that the police have become better (or worse) at registering such incidents and/or that minorities are more (or less) likely to report hate crime incidents to the police.

There are even bigger challenges when comparing levels of hate crimes across countries. In fact, due to different judicial understandings of what constitutes a hate crime, as well as variations in the frequency with which they are reported by victims and recorded by officials, it is almost impossible to compare hate crime statistics across countries. Notable efforts, however, are undertaken by agencies such as the ODIHR and the European Union Agency for Fundamental Rights (FRA).^[12] ODIHR offers a publically accessible tool to gather data from countries in Europe, Asia and North America. From 2015 to 2018, ODIHR has recorded an average of 5634 incidents per year across the participating states (which varies from 41 to 48).^[13] ODIHR emphasizes that the data is uncertain, and that high levels of hate crime incidents in one country may reflect a broader definition of hate crime or a more effective system for recording data than in other countries.

Surveys that ask minorities about their experiences with hate crime may be more trustworthy when it comes to cross-country comparisons than police statistics. Giving some indication of the potential magnitude of hate crimes, key finding from the 2018 survey by FRA^[14] found that on average, one third of all respondents (39 percent) experienced some form of antisemitic harassment in the five years before the survey, but only 19 percent of those who have experienced such harassment reported the incident.