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The Routledge International Handbook on Hate Crime

Nathan Hall, Abbee Corb, Paul Giannasi, John G. D. Grieve, Neville

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Legislating against hate

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Gail Mason
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5
Legislating against hate

Gail Mason

The criminalisation of behaviour that manifests prejudice or group hatred is not a new legal
phenomenon. There is a long history in parts of Europe and the US of criminalising racial
and ethno-religious propaganda, intimidation and incitement to violence. Since the 1980s,
however, western nations have witnessed a proliferation of criminal laws specifically designed
to address what has come to be called the problem of ‘hate crime’.
Many global and local factors have come together to produce this current wave of hate crime
laws. Initially, the emergence of the concept of hate crime in the US in the 1980s provided an
umbrella term under which a range of new social movements – such as the civil rights movement
and the gay and lesbian movement – could agitate not just for human rights or equal opportunities
but also for legal protection against the violent manifestations of prejudice ( Jenness and Grattet,
2001). These calls for law to specifically address racial, religious or homophobic violence found
support from a wider movement advocating for the rights of victims within the criminal justice
system. Throughout the 1990s, legislatures thus became increasingly receptive to the idea that
purpose-built laws were necessary to punish, deter and denounce prejudice-motivated crime; and
increasingly cognisant of the political benefits of demonstrating state support for minority groups
in this way (Iganski, 2008; Jacobs and Potter, 1998; Jenness and Broad, 1997; Mason, 2009a).
This approach to regulating prejudice-related crime gradually spread from the US to
other common law countries, including Canada, the United Kingdom, Australia and New
Zealand, as well as to many civil law countries in Europe. Had these laws been introduced in
an earlier welfare-oriented period of penal policy, they may well have taken a more rehabil-
itative approach to the problem. However, emerging as they did in a global period of increas-
ing retributivism, advocates for hate crime laws were able to achieve considerable traction by
framing their calls for law reform within popular ‘tough on crime’ discourses of crime con-
trol. Within the context of these broad global influences, eruptions of high profi le and
extreme cases of prejudice-motivated crime at the local level also strengthened calls for
reform and shaped the kinds of prejudice deemed to warrant legislative intervention in par-
ticular countries (especially when read against the background of national histories of, for
example, colonisation, slavery or extremism). Together, these social and political forces have
generated a well-intentioned but problematic legal response to the social problem of crime
that is related, in various ways, to prejudice, hostility or intolerance of ‘the other’.

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This chapter will examine the ways in which the concept of hate crime is translated into,
and regulated by, law. It will posit a tripartite model for understanding hate crime legislation
across national borders and, in turn, the common elements that distinguish a hate crime from
an ordinary crime under the law. As a means of considering arguments for and against hate
crime laws, it will highlight three contemporary challenges for the way in which such laws
are constructed and interpreted: the kind of test used to prove the element of hatred or bias;
the victim attributes protected by the law; and the justifications that are advanced for the
punitiveness of these laws. The chapter aims to offer a transnational snapshot of hate crime
laws and some of the key debates and dilemmas that currently surround them.

Models of intervention: purpose and justifications

Despite the popularity of the phrase ‘hate crime’, most statutes that are characterised as such
avoid the abstract concept of hatred itself in favour of less extreme or more flexible terminol-
ogy such as ‘prejudice’ or ‘hostility’. It is for this reason that hate crime is sometimes, more
accurately, referred to as ‘prejudice crime’ ( Jacobs and Potter, 1998). Thus Lawrence (1999)
defi nes hate crime as a criminal manifestation of prejudice, while the Organization for Secu-
rity and Co-operation in Europe states that ‘[c]rimes motivated by intolerance towards cer-
tain groups in society are described as hate crimes’ (ODIHR, 2009a: 7). Legislative defi nitions
of the crime itself will often differ from operational definitions of hate crime used by police
or in policy documents ( Jenness and Grattet, 2005; Goodey and Aromaa, 2008; Hall, 2005):
for example, in the interests of developing community trust and confi dence, the Association
of Chief Police Officers in England and Wales defi nes a hate crime to include all ‘hate
incidents’ whether they amount to a criminal offence or not (ACPO, 2005: 9). Under the
law, however, it is necessary that a criminal act is committed that constitutes an offence,
although as will be explained, in many instances, the actual offence that constitutes the hate
crime will be one that already existed under the criminal law before the introduction of
reforms in this area.
There is great variation between legislation that is commonly grouped under the umbrella
of ‘hate crime law’ (and also great diversity in how these statutes are interpreted by the courts).
A number of models have been proposed to help categorise the way in which hate crime
reforms have been inserted into the criminal law (Lawrence, 1999; ODIHR, 2009a; Jenness
and Grattet, 2001). Mapping these laws across international borders risks over-simplifying
their elements and the variation between them but, reworking existing classifications, Mason
(2009) has proposed three very broad models that are useful for capturing the key features of
hate crime laws across jurisdictions: i) the penalty enhancement model; ii) the sentence
aggravation model; and iii) the substantive offence model. Some jurisdictions have more than
one model of hate crime legislation in force and in some countries, such as the US, hate crime
laws have been enacted, amidst controversy, at both the federal and state levels (there are also
laws that mandate the collection of statistics and associated matters).
The penalty enhancement model is probably the most common form of hate crime legis-
lation in Europe and the US (ODIHR, 2009a). It specifies an additional maximum, some-
times minimum, penalty on (some or all) pre-existing offences if the conduct is motivated or
aggravated by racial, religious or other forms of prejudice or group hostility. For example, the
maximum term of imprisonment for a conviction of assault occasioning actual bodily harm
in England and Wales is five years, while the maximum penalty for the same offence com-
mitted in circumstances of racial or religious aggravation is seven years imprisonment (Crime
and Disorder Act 1998 (UK), s 29(2)(b)).

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Under the sentence aggravation model, the element of prejudice or aggravation is taken
into account at sentencing thus allowing more judicial discretion than the penalty enhance-
ment model. For example, in Canada, it will be an aggravating factor at sentencing if there is
evidence that the offence was motivated by bias, prejudice or hate based on race, national or
ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orien-
tation, or any other similar factor (Criminal Code, s 718.2(a)(i)). Sentence aggravation provi-
sions also operate in Great Britain, New Zealand, Australia and some European countries.
The substantive offence model captures a diverse body of stand-alone offences that include
prejudice or bias as an ‘integral element of the legal defi nition of the offence’ (ODIHR,
2009a: 32). Although these offences do more than enhance the criminality of a pre-existing
offence, most still operate to impose harsher penalties than those available for ‘parallel’
offences, that is, for comparable offences which do not involve an element of prejudice (it has
been suggested that without heightened penalties law enforcement officers would simply
choose to charge and prosecute under the conventional criminal law). It is not unusual for
substantive hate crime offences to centre on criminal words, images or conduct that are
deemed threatening or that incite certain forms of hatred, including criminal civil rights
laws. For example, in California it is a crime to injure, intimidate, interfere with, oppress
or threaten another person, by force or threat of force, in the free exercise or enjoyment
of Constitutional rights or privileges ‘because of ’ specified characteristics of that person
(California Penal Code, ss 422.6(a)). Many jurisdictions in the US have substantive hate
crime offences (in addition to penalty enhancement provisions) as does Canada, Great Britain
and some jurisdictions in Australia. According to the ODIHR (2009a), this model is not
common in Europe but there are, nonetheless, a range of provisions that criminalise hate
speech and the like, introduced in the wake of World War II and the Holocaust.
Despite these differences, there are several common denominators between these statu-
tory models that enable us to talk about hate crime law with some degree of generality. First,
hate crime laws all explicitly target crime where group hostility, bias, prejudice or hatred is
an integral or associated element of the offender’s behaviour (ie: crime + prejudice); as we
will see, it is not always necessary that this prejudice amounts to motive. Second, this preju-
dice, bias or hostility is directed towards a group attribute or characteristic of the victim that
is usually spelt out in the legislation. Third, in most jurisdictions express hate crime laws are
not necessary to police, prosecute or sentence prejudice-related crime as most of the conduct
they target is already criminalised. As a consequence, hate crime laws ‘top up’ the traditional
criminal law by imposing, in most instances, a heavier penalty than that which is applicable
to parallel crimes. The imposition of an extra penalty for the element of prejudice is thus a
core feature of hate crime law. In a very broad sense, then, hate crime laws are designed to
address multiple and diverse criminal manifestations of prejudice towards specified group
characteristics, which they conceptualise as a very particular kind of social problem, one that
seemingly demands its own label of criminality and punishment.

Where does the hate threshold lie?

It is often said that hate crimes are criminal acts that are motivated by prejudice or bias towards
the victim because of his/her membership of a particular social group (ODIHR, 2009a;
Lawrence, 1999). Under the criminal law, this is not always true and gives the impression
that a very high degree of animosity on the part of the perpetrator is necessary to enliven the
provisions. Attempting to bring a semblance of order to the multiple tests that are used to estab-
lish the prejudicial element in hate crime law is fraught with difficulty and over-simplification.

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Nonetheless, it is helpful to identify some broad and important points of distinction in the
tests that are used to satisfy the ‘prejudice’ element in hate crime offences and, thus, the
degree or kind of prejudice that is required under the law.
The most commonly accepted distinction is between the ‘motive’ or ‘discriminatory
selection’ tests, also referred to as the ‘animus’ or ‘group selection’ tests. In general, the
motive test requires evidence that the offender was motivated to commit the offence by prej-
udice, hatred or hostility towards a group to which the victim is presumed to belong. The
inclusion of motive as an element of a hate crime offence has attracted considerable criticism.
Motive is not normally an element in the determination of guilt and, arguably, it is contrary
to principles of criminal liability to require the prosecution to prove it (Hurd, 2001; Quill,
2010). The motive test has attracted strong opposition in the US where it is said to criminal-
ise an offender for his/her bad thoughts or feelings and thus breach the Constitutional right
to freedom of expression (Gellman, 1992). In contrast, judicial consideration of an offender’s
motive is accepted as a relevant factor at sentencing in many jurisdictions (Mason and Dyer,
2013) and thus, perhaps not surprisingly, hate crime sentencing aggravation provisions do
often require proof that the offender was actually motivated by prejudice/hate/hostility (eg:
in Canada and New Zealand).
In the US in particular, constitutional challenges to hate crime legislation have, according
to some, necessitated the construction of different kinds of tests, particularly the ‘discrimina-
tory selection’ test (Lawrence, 1999; but see Goodall, 2013). Under this test it is only neces-
sary to prove that the offender intentionally selected the victim on the basis of his/her
membership of a group protected under the legislation, for example if the offender selected
the victim ‘because of ’ or ‘by reason of ’ his or her religion (Lawrence, 1999; Wang, 1999).
While the discriminatory selection test provides a way of constructing motive without
requiring actual proof of why the offender selected the victim, in the sense that selecting a
victim because of their group membership is assumed to be tantamount to a motive of bias or
prejudice, in practice it tends to set a lower threshold for liability as it is not always necessary
to prove the reason the offender discriminated in choosing the victim but only that he/she
did so (Mason, 2010). The discriminatory selection test thus has the potential to apply to a
wider range of circumstances than the motive test. For example, if A commits a robbery
against B because he/she believes that B is Jewish and that all Jewish people are wealthy this
crime may well be caught by a discriminatory selection test but not necessarily by a motive
test (although this will depend on other factors, such as how the discriminatory selection test
is interpreted by the courts and whether we are comparing it to a motive test that requires
prejudice to be the sole motive or merely a partial motive). Questions about how much bias
is necessary to satisfy the causal link under this test are largely unresolved, with some courts
settling for a ‘but for’ threshold and/or a ‘substantial’ causal connection rather than a causal
link that demonstrates a ‘preponderance of evidence’ (Quill, 2010). Concerns about the dis-
criminatory selection test thus include the fact that it is likely to be met in circumstances
where the crime is opportunistic or motivated only by mild bias or stereotypes rather than by
strong hatred or prejudice (Mason, 2010; Goodall, 2013; Jenness and Grattet, 2001).
Some jurisdictions have taken an even more expansive approach by criminalising speech
and other forms of expression that incite hatred or demonstrate prejudice in the context of a
criminal offence (Glet, 2009; Mason, 2009). The penalty enhancement provisions in the UK
are of particular interest (these provisions are also replicated in Western Australia). As noted
above, the Crime and Disorder Act 1998 (UK) aggravates an offence where there is evidence of
racial or religious ‘hostility’ on the part of the offender. There are two ways for hostility to
be proven. While one is through motive, the other is through evidence that the offender

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‘demonstrated’ racial or religious hostility immediately before, during or after the commis-
sion of the offence (see R v Rogers [2007] 2 AC 62). The vast majority of prosecutions rely
upon proof that the offender demonstrated such hostility rather than proof that the offender
was actually motivated by hostility to commit the offence (Burney and Rose, 2002). Spoken
or written insults will be sufficient. For example, in R v Londesbrough ([2005] EWCA Crim
151) it was held that statements including ‘fucking Paki . . . fuck off out of our country . . .
I will fucking shoot you, paki bastard, go home’ made by the offender during an assault
arising out of a dispute over a parking space were sufficient to elevate the offender’s offence.
This test gives the UK’s penalty enhancement provisions far reaching application and may
partly account for the significantly larger number of hate crimes recorded, prosecuted and
sentenced in the UK compared to other nations in Europe and the US (ODIHR, 2009b;
Hall, 2005; Goodey and Aromaa, 2008). Although the ‘demonstration’ test seeks to recog-
nise the harm to the victim that flows from the use of prejudiced insults during an offence,
it has been criticised for criminalising hate speech and for setting a low threshold that cap-
tures offenders who are not driven by strong prejudice but, instead, express prejudicial values
or stereotypes in the heat of the moment (Chakraborti and Garland, 2012; Dixon and Gadd,
2006).
The degree of prejudice required to enliven hate crime statutes thus presents an on-going
challenge not only for legislatures but also for the courts. While many statutes are interpreted
to apply in circumstances where the offender was driven by mixed motives (eg: fi nancial gain
and racism), considerable difficulty lies in determining how ‘substantial’ the element of
prejudice or bias need be to warrant the imposition of a harsher penalty upon the offender
(Lawrence, 1999; Goodall, 2013; Quill, 2010). In jurisdictions where proof of the offender’s
motive is required, prejudice or bias that is determined to be peripheral to the commission of
the offence itself is unlikely to be sufficient (Phillips, 2009). For example, under hate crime
sentencing laws in Australia, racial insults by the offender have been held to be insufficient
in circumstances where the offender and the victim are already engaged in a confl ict that has
nothing to do with race (Mason and Dyer, 2013). Hence, the tests that are used to establish
the element of prejudice, bias or group hostility raise important questions about where the
‘hate threshold’ should lie; questions that are answered in very different ways under different
legislative and judicial frameworks.

Which forms of difference should be protected?

Like equal opportunity and anti-discrimination laws before them, hate crime statutes usually
only cover prejudice towards specified victim characteristics or categories of identity (eg:
race, religion, sexual orientation or disability). Although the initial impetus for reform in this
area came from minority groups who successfully demonstrated to legislatures that their
group identity or ‘difference’ from the majority made them vulnerable to prejudice-related
violence and intimidation, the principle of equality before the law has meant that the vast
majority of hate crime legislation has had to adopt a symmetrical approach to the protection
of victim attributes or categories of identity (eg: race is the protected attribute not ‘black-
ness’). This generic construction of hate crime has also enabled the law to recognise crimes
of prejudice that are committed by minority group members upon majority group members
and minority-upon-minority offences. This has produced a tension between the original
impetus for hate crime laws to protect marginalised and stigmatised minorities and their
increasing application to disadvantaged groups and minority offenders (Gadd and Dixon,
2011; Franklin, 2004).

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The question of which victim characteristics, and thus which forms of prejudice, should
be protected under hate crime laws has been contested from the very beginning. Protected
attributes tend to reflect identity categories that are already well recognised under human
rights legislation and have the backing of influential social movements and organised modes
of identity politics. Thus race is the attribute most widely protected globally. In many juris-
dictions, governments have gradually responded to increasing political pressure to include
more group categories. For example, advocates for the inclusion of sexuality and disability
have struggled, with varying levels of success, for their recognition under hate crime statutes
(Sherry, 2010). A surge in genuine public concern or media-generated alarm about particular
forms of prejudice-related violence, both locally and globally, has also prompted some legis-
latures to expand hate crime laws to attributes previously not protected; such as including
religion in response to a perceived rise in anti-Muslim violence in the wake of September 11
and other terrorism attacks. Gender continues to divide advocates of hate crime laws, with
some recognising the misogynist nature of much sexual and domestic violence against
women but others expressing concern that gender will swamp other hate crime offences and
is better addressed under criminal laws already developed for this purpose (Gelber, 2002;
Lunny, 2011). Some rarely protected categories include marital status, birth, wealth, class and
political affi liation (ODIHR, 2009a).
This piecemeal, inconsistent and politically charged approach to coverage of victim attrib-
utes generates concern about groups that are also vulnerable to targeted crime, such as the
homeless, sex workers and asylum seekers, but who are rarely included as ‘legitimate’ hate
crime victims under the law. By singling out selected victim attributes, and forms of preju-
dice, legislatures are ‘sending a clear message’ both that some attributes are ‘deserving of
more protection than others’ (Schweppe, 2012: 178) and that offenders who act on some
forms of prejudice are deserving of more punishment than others (Mason, 2013). Thus it has
been argued that, despite their generic application, hate crime laws continue to jeopardise the
principle of equality before the law by privileging particular victim attributes for protection
and failing to treat all victims the same; for example, by protecting victims on the basis of
their race but not their gender (Morgan, 2002). This has led to the characterisation of hate
crime laws as a quick-fi x political solution, fuelled by a sense of resentment on the part of
minority groups, that run the risk of further balkanising destructive divisions between iden-
tity groups instead of tackling the problem at its source ( Jacobs and Potter, 1998; Goodall,
2007).
These concerns are undoubtedly valid but the difficulty with continuing to add more and
more victim attributes to hate crime legislation is that it risks, fi rst, watering down the pro-
visions to the point that they are meaningless and difficult to enforce in practice (Hall, 2005;
ODIHR, 2009a) and second, obfuscating the initial purpose of the provisions, which was to
address the violent and criminal manifestations of prejudice towards stigmatised and oppressed
minorities. While previous responses to this challenge have been to advance the claims of
individual groups to protection, a preferable approach, and one that appears to be gaining
increasing traction, is to reconsider the criteria that scholars, policy-makers, non-governmental
organisations (NGOs) and legislatures use to determine statutory protection. Some time ago,
Stanko (2001) proposed that the concept of ‘targeted crime’ more helpfully encapsulated the
vulnerability of multiple groups to prejudice-related violence and hostility. Building on this
insight, some scholars have argued against the presumption that the only worthy victim
attributes are those that have long histories of oppression and/or well articulated forms of
group identity. Thus criteria of ‘targeted vulnerability’ (Roulstone et al., 2009) or ‘vulnera-
bility and difference’ (Chakraborti and Garland, 2012) have been proposed as a way of

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breaking open the narrow, singular and fi xed configurations of victim protection criteria. A
parallel line of argumentation has proposed that the principles of social equality and respect
for diversity that guide discrimination and human rights law provide an important potential
touchstone for determining human attributes deserving of protection (Schweppe, 2012).
Together, a combination of these approaches may ultimately assist criminal law to rise to the
challenge of greater inclusiveness by recognising vulnerability to victimisation based, not
necessarily all forms of difference but, rather, on forms of difference that have a claim to equal
rights and freedom from unfair or unjustifiable prejudice (Mason, 2013).

Punitive justice in the name of social justice: Are hate crimes worse?
Despite the many differences between hate crime laws that have proliferated throughout
western nations during the last few decades, the vast majority of statutory provisions are
punitive in nature, that is, they impose a heavier penalty upon offenders than that which is
applicable to comparable crimes where there is no evidence of prejudice or bias on the part
of the offender (Al-Hakim and Dimock, 2012; Schweppe, 2012; Mason, 2009; Lawrence,
1999). While it is true that hate crime laws have not emerged in response to populist pressure
from mainstream society (Iganski, 2008), the raw fact remains that, by and large, they do
provide the opportunity, sometimes the mandate, for heavier penalties to be imposed. In
light of their purported purpose, which is to protect the human right to be different, safe
from the threat of violence and the means by which they seek to do this, which is to explicitly
criminalise and punish violent manifestations of prejudice towards this difference, it is diffi -
cult to avoid the conclusion that hate crime laws rely upon the mechanisms of punitive justice
to achieve, not just the instrumental goals of retributivist justice, but also the wider symbolic
goals of social justice (Mason, 2009a).
Advocates for hate crime laws argue that the heightened punishment they impose is justi-
fied because crimes that manifest prejudice are more serious than parallel crimes. Two main
arguments are advanced to support this claim: i) hate crime is said to infl ict greater harm
upon the individual victim, the targeted community and/or society as a whole; and ii) the
offender’s moral culpability is said to be greater than that of similar offenders whose conduct
lacks the element of prejudice or hostility (Lawrence, 1999; ODIHR, 2009a; Levin and
McDevitt, 2002; Sherry, 2010; Iganski, 2008). To this way of thinking, the harsher sentence
imposed upon the offender is proportionate to the seriousness of the crime and thus consist-
ent with traditional aims of punishment (Wellman, 2006). The underlying logic of these ‘just
deserts’ rationales – and the feature that purportedly sets hate crime apart from other
crime – is that such crimes are said to ‘violate the ideal of equality between members of soci-
ety’ and that this ‘equality norm is a fundamental value that seeks to achieve full human
dignity and to give an opportunity to all people to realize their full potential’ (ODIHR,
2009a: 19). In other words, the criminal law constructs hate crime as more serious than par-
allel crimes because it negates the ‘values of tolerance, respect and equality’ for diversity,
difference, multiculturalism and the like (Mason and Dyer, 2013: 882).
The need for hate crime laws is also frequently justified on symbolic or denunciative
grounds (Gerstenfeld, 2004; Chakraborti, 2010). Advocates argue that the state has a respon-
sibility to make a declaration of support for the safety and security of groups who are targeted
because of their difference (Iganski, 2008; Wellman, 2006) and to affi rm ‘prosocial values of
tolerance and respect’ ( Jenness and Grattet, 2001: 179). This requires hate crime to be explic-
itly recognised and punished as hate crime (Lawrence, 1999; ODIHR, 2009a) and, as Kahan
(1999: 69) puts it, ‘[s]evere punishment is the idiom’ that these laws use to ‘get the message

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across’. The enactment of hate crime laws is thus a ‘statement that these actions will no longer
be tolerated and that severe penalties will be applied if such offences are committed’ (Hall,
2005: 132). In effect, the symbolic or expressive justifications for hate crime laws, and the
harsher penalties they impose, also comes to rest on the ‘strong interest liberal democracies
have in promoting diversity and demonstrating equal concern and respect for all citizens’
(Al-Hakim and Dimock, 2012: 572).
Opponents of hate crime laws, and principally of the punitive quality of these laws, make
a number of counter-arguments. Many point out that empirical evidence that hate crimes
infl ict greater harm upon individual victims is weak (Al-Hakim and Dimock, 2012; Hurd,
2001; Mason and Dyer, 2013). Although there is research to suggest that hate crimes do
infl ict damage upon the targeted group and other minorities by reinforcing a sense of mar-
ginalisation and vulnerability (Mason, 2002), as well as damaging wider social values of
tolerance and respect (Al-Hakim, 2010), critics contend that this harm is no greater than that
which is infl icted by some other crimes, such as sexual assault (Morgan, 2002). To this way
of thinking, the enhanced penalties imposed by these laws violate the principle of propor-
tionate punishment (Al-Hakim and Dimock, 2012), unfairly penalise an offender for his/her
bad character and undermine the commitment of liberal democracies to neutrality and free-
dom of thought/expression (Gellman, 1992; Hurd, 2001). Moreover, given the weakness of
evidence to support imprisonment as a form of deterrence in other areas of criminal justice
(Wan et al., 2012), it is questionable that the heightened penalties imposed by hate crime laws
are actually capable of deterrence (Dixon and Gadd, 2006). In light of the extensive prosecu-
torial options available under modern criminal law, it has also been suggested that hate crime
laws are superfluous ( Jacobs and Potter, 1998). Finally, critics argue that in seeking to exploit
the expressive function of the criminal law to the extent that they do, such laws effectively
operate as a form of ‘affi rmative action’ (McLaughlin, 2002: 495) that attempts to ‘extend the
civil rights paradigm into the world of crime and criminal law’ ( Jacobs and Potter, 1998: 27).
Even if we were to accept that the harsher punishment imposed by hate crime laws can be
justified under principles of proportionality, the issue of punishment raises questions of ethics
and policy that run deeper than principles of criminal liability alone. The problem of mass
imprisonment and a culture of control across many, albeit not all, western nations should
prompt us to query whether legal responses to hate crime need be punitive. For example,
recent work points to the potential of restorative justice as a means of addressing hate crime
(Walters and Hoyle, 2010). While we need to recognise that hate crime laws are an important
symbol of state support for those who are victimised because of prejudice towards their
‘otherness’, it is time that we pushed harder to imagine a path to legislating against hate, and
promoting social justice, that is not paved with penal punitiveness.

Conclusion
Criminal law has always been at the heart of the anti-hate crime movement. It has provided
parameters for the construction of hate crime as a social problem, the defi nition of its ele-
ments, the scope of its application and, arguably, it has been promoted as the key remedy to
the problem. While the concept of hate crime has taken root in some places in the absence of
statutory reform, this has always been slower and less pronounced. The enactment of specific
hate crime offences lends the authority of the law to the issue that spreads to other domains,
including policy, education and media. For better or worse, it is fair to say that hate crime
becomes the elements that are bestowed upon it by the criminal law: a particular kind of
problem with a particular kind of solution.
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While law thus provides a tangible avenue for addressing the harm and the hurt of tar-
geted victimisation, as the above discussion suggests, the multiple, contradictory and shifting
ways in which law articulates hate crime reveal the contingent nature of the concept itself
and the social reality it seeks to capture. Internationally, it is possible to discern patterns in
legislative intervention that reflect broad models of reform but debates over how far to set the
threshold for the element of prejudice, which groups to protect and whether punitiveness can
be justified all point to on-going challenges. On the one hand, we could see these challenges
as indicative of the incoherent state of hate crime law and policy or, on the other hand, as a
sign of the dynamic and passionate investment that continues to characterise and strengthen
hate crime discourse. This is a discourse that, despite the seeming centrality of criminal law
to the meaning of hate crime, develops and moves in directions that are much bigger than
law itself: directions that prompt us to remember that criminal law is only one small, often
problematic, part of the solution to the problem.

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