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Should misogyny be a hate crime? A comparative view of hate crime legislation, based on a legal dilemma in the UK

The EU pays lip service to the concept in several instances, such as with the Stockholm Program, but generally only does so via soft law (as they themselves state), so the effectiveness greatly varies from state to state. Some states do not require any extra regulation, but other states still have issues with violence against women specifically.
  1. Preamble
hate crime

The New Year has, as it would seem, ushered in problems for every state and authority. This does not limit itself, however, to the sweeping changes brought by the Coronavirus pandemic. The United Kingdom’s Parliament has seen a new proposal, one that would classify violence against women because of their gender as a hate crime.

First of all, it would serve to have an overview of what a hate crime under UK Law looks like, its scope and area of effect. The general definition agreed upon by the Police and the Crown Prosecution Service[1] is that a hate crime or a hate incident is exerting violence upon a person, due to the perceived adherence to a certain protected group. These are exhaustively: disability, race, religion, transgender identity and sexual orientation.           

But why now, and why misogyny? Well, the question itself is the crux of the whole issue, but, as is generally the case when legal novelty is concerned; a comparative approach might shed some light. So, a first step would be to see how other states in the Union (of which the UK was part of until recently) have responded to this phenomenon.

  1. The continental approach of the EU States:

The provisions in the matter differ greatly among EU Member States. To begin with, most states do not have a separate provision for what constitutes a hate crime, and rather choose to only codify such transgressions as penalty-enhancing attributes, (as is the case of Italy, Romania and Austria)  while some others have opted for hate crimes to be their own codified institutions  (Croatia, Estonia, Hungary).

As exemplified above, in the Romanian criminal code, hate crimes can receive up to two extra years of incarceration, above the maximum punishment for the crime committed in normal circumstances, should the judge find it necessary.  The Italian Law is even more drastic, increasing the punishment by up to a half of its original maximum.

Even what is considered a protected group widely varies from State to State, mostly since it depends on what categories have been historically discriminated against (and that the state expressly wants to protect currently).  Generally, protected groups have been racial, national and ethnic, given the often bloody history of neighbors in Europe.

The Organization for Security and Cooperation in Europe defines hate crimes, in its “Hate Crime Laws: A Practical Guide[2], as “[…] criminal acts committed with a bias motive. It is this motive that makes hate crimes different from other crimes. A hate crime is not one particular offence. It could be an act of intimidation, threats, property damage, assault, murder or any other criminal offence”. The same Guide also outlines what constitutes a protected characteristic: ”A protected characteristic is a characteristic shared by a group, such as ‘race’, language, religion, ethnicity, nationality, or any other similar common factor”. These provisions’ purpose is to gently guide states in the Union, one of which the UK was, towards a unification of practices regarding such important legal aspects.

If the general guideline was not enough, there even exists a provision in a directive, one regarding “establishing minimum standards on the rights, support and protection of victims of crime [3]”, which states that “[…]the personal characteristics of the victim such as his or her age, gender and gender identity or expression, ethnicity, race, religion, sexual orientation, health, disability, residence status, communication difficulties, relationship to or dependence on the offender and previous experience of crime”.

If this provision exists, then why do all states not yet have a unified, or at the very least similar approach? Well, sadly, this Directive serves only to outline what facts should be taken into account when applying a criminal sentence, not how (or even if) the states should criminalize separately such actions. As such, it does not, in any way, shape, or form, create an obligation for the states.

So then, if women are generally not protected under hate crime laws in most states of the EU, are they even given any sort of special protection?

Well, not really. The EU pays lip service to the concept in several instances, such as with the Stockholm Program[4], but generally only does so via soft law (as they themselves[5] state), so the effectiveness greatly varies from state to state. Some states do not require any extra regulation, but other states still have issues with violence against women specifically. As mentioned before, all the provisions in the matter create no obligations. Therefore, even if philosophically the Union does believe that women should be granted special protection in this regard, it’s all theory and no praxis.

But another question should be analyzed before we conclude the assessment on the EU side: if there is no protection from a hate crime perspective, are they protected through any other mechanisms?

As most any lawyer would answer, it depends. There are mostly no provisions enacted in EU states that would protect solely women, unless we count the penalty-enhancing aspect of committing certain crimes against pregnant women (and even these could be subject to discussion, should a transgender man get pregnant). However, there are certain crimes that primarily target women, such as sexual harassment, rape, domestic violence etc. These do not replace, even practically, the effects of hate crime legislation, since all provisions mentioned can very much be applied to men as well. Men can be raped, sexually assaulted and even sometimes become pregnant if they are intersex or trans men. These provisions could, however, serve as a sort of outline, or, even better, as a case study for what these new provisions could target.

Even so, a US Dept. of Justice study in 2014 [6] found that of the almost 1000 people on probation for committing acts of domestic violence, the majority was indeed male; however, the conclusion is a bit different than expected. For one, it was mostly the female subjects who only had convictions for committing acts of domestic violence, rather than it being “just another crime” in their record, the way it was found in men. Sure, the data does seem somewhat skewed and biased, since rather than the general population it uses criminals on probation specifically for acts of domestic violence, it seems to be in accordance to the results of other studies in the matter. So far, it would seem that not even in these fields are women granted special protection.

  1. Hate Crimes in Common Law

In order to have a more complete picture, it also serves to analyze a legal system closer to the one the UK employs, the US common law system. Rather unsurprisingly, there is no unanimous definition of a hate crime in all American States. Most states protect race, color, ethnicity, religion, gender, and disability, and, more recently sexual orientation and gender identity or expression.

Summarily reading this, it would seem that, since gender identity is a protected attribute, and should quickly conclude this part, but things are not quite as simple in the US either. From a strictly criminal perspective, the 1993 ruling the case of Wisconsin v. Mitchell [7] has set a precedent that contradicts the very thesis of what is currently under analysis: that even a person that is a part of the majority group can be victim of a hate crime. The case concerns a 1989 attack of a young white boy by a black man, attack motivated by the victim’s race. As such, hate crime laws in America have the power to protect anyone from anyone; not just, for example, black victims from white perpetrators, or female victims from male aggressors. Therefore, technically speaking, yes, American women are protected against misogyny-driven crimes under hate crime laws.

The Violence against Women Act (abbreviated VAWA) sought to offer people affected by gender-based discrimination at first, and was passed in order to better protect women against sexual assault, rape and domestic violence, by enforcing recognition and support for rape crisis shelters, federal prosecution of interstate domestic violence and sexual assault/rape. This act has had a rather tumultuous past, being unauthorized and then reauthorized several times. In its latest form, it has evolved from offering protection to heterosexual women; extending the protection to members of the LGBTQ+ community, while also empowering tribal courts to judge instances of rape/ sexual aggression committed against Native Americans, even by non-tribesmen.

  1. Final considerations

At the end of the day, after a comparative analysis, what arguments have the proponents of this legal initiative brought forward? Do they have the same rational foundations as the provisions of the other aforementioned states?

The arguments of the proponents largely concern two main issues: the correlation between “everyday misogyny”, such as cat-calling, groping, ‘slut-shaming’ etc. can easily devolve into assault, be it sexual, physical, or both. On the other hand, the increased penalty and seriousness of a hate crime would both empower women to tell their stories to the authorities and for the authorities to treat these issues seriously.

This reasoning follows closely in reasoning the process of adopting the VAWA, since the reasoning behind classifying a certain conduit as a hate crime is rarely just punishment. Usually, dissuasion, one of the key roles of criminal law, is the one that these kinds of measures target. Nevertheless, the extra protection granted by essentially forcing law enforcement to take these complaints seriously is not to be underestimated.  Certain papers [8] suggest that some 170.000 hate crime incidents (under current legislation) are not even reported. This statistic by itself is rather worrisome, but if even such a serious crime is severely underreported, one can only imagine the extent to which misogyny is.

Even if this legal initiative is met with disinterest or downright apathy in the British Parliament, the uproar and awareness it has brought to a real problem permeating the British society is commendable. While at first it sounds somehow both outlandish and retrograde to think that women should be offered special protection against acts of hate, these laws serve as grim reminders of where and who society fails the most.

Adnotări   [ + ]

1. The Police and Crown Prosecution Service are responsible with the pursuit and prosecution of criminals in the United Kingdom. Their general attributions are to gather evidence, decide which acts are prosecuted, what the appropriate charges for the respective act should be etc.
2. https://www.osce.org/files/f/documents/3/e/36426.pdf
3. Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA
4. https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52010XG0504(01)&from=EN
5. https://eige.europa.eu/gender-based-violence/regulatory-and-legal-framework/eu-regulations
6. https://www.ncjrs.gov/pdffiles1/nij/grants/244757.pdf.
7. https://www.oyez.org/cases/1992/92-515.
8. https://www.sciencedaily.com/releases/2016/10/161020092232.htm

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