Introduction In 2015 five members of the International Network for Hate Studies from the Czech Republic, England and Wales, Ireland, Latvia and Sweden successfully applied for an Action Grant from the European Commission’s Directorate-General for Justice and Consumers with our project entitled “Life Cycle of a Hate Crime”. The key aim of the project was…
A couple of months ago, I wrote a blog post on how international and European law, which is relevant to challenging hate speech, is marred by several limitations, including what I describe as a hierarchy of hate. Namely, making certain types of speech such as racist speech punishable or prohibitable but not others, such as homophobic speech. Taking into account the recent release of the results of the third monitoring cycleof the European Commission’s Code of Conduct on illegal hate speech, I wanted to focus solely on hate speech. In this blog post, I wish to further embellish on this notion of hierarchies, beyond the sphere of hate speech, into other domains such as hate crimes and the EU’s non-discrimination framework more generally.
Hate crime is a severe crime, a message crime, a symbolic one. It is different to others as it targets the identity of its victim or victims with impact on a micro (individual), meso (group) and macro (societal) level. As noted in a 2014 report of theOffice for Democratic Institutions and Human Rights, there is no consensus amongst OSCE States as to which characteristics should in fact be protected under hate crime laws. This could, partly, emanate from the fact that the international framework and, where relevant, the European Union framework are, in themselves, lacking. Article4(a) of the International Convention on the Elimination of all Forms of Racial Discrimination prohibits acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin. Article 4 of the EU’s Framework on Racism and Xenophobia provides for racist and xenophobic motivation, stipulating that for offences other than hate speech related offences, Member States shall take the necessary measures to ensure that racist and xenophobic motivation is an aggravating factor or that it is taken into account when determining penalties. Article 16 of the International Convention on the Rights of Persons with Disabilities protects persons with disabilities from violence and underlines that violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted. Those are the only tools that have emanated from the UN and the EU to punish hate crime. Furthermore, just as is the case with the respective hate speech framework, no provisions or documents exist that tackle hate crime directed at the LGBTI community. In fact, the European Parliament itself issued a resolution in which it askedthe Commissionto propose a recast of the Framework Decision and include the grounds of sexual orientation and gender identity. This is a problem both conceptually (it could be deemed as legitimising the disregard of some groups in terms of human rights and freedoms) and practically. Let us remind ourselves of the first (and) last ever EU-wide LGBT survey conducted by the Fundamental Rights Agency which found, amongst others, that:
- 26% of LGBT people who responded to the survey had been attacked or threatened with violence in the last five years;
- 66% of respondents were scared of holding hands in public with a same-sex partner and for gay and bisexual men, the figure was about 75%.
Although the EU does recognise the impact of hate crimes on persons who are targeted due to their sexual orientation or gender identity through its Directive on the Rights of Victim, this document has the purpose of ensuring that victims of crime receive information, support and protection. However, as significant as this is, it comes into play afterthe crime has happened. The EU (and other institutions such as the UN) should also develop a framework in which homophobic, biphobic and transphobic acts are criminalised by States, as it the case with the Framework Decision and racist crimes. All I can conclude from appraising the situation is that, essentially, on a European level, the competent institutions did not deem it significant to develop a Framework Decision on several forms of intolerance, thereby ousting LGBT groups from protection against hate speech and hate crime. However, they did remember this group, amongst others, for their post-crime experience. In brief: not good enough.
EU Non-Discrimination Framework
Article 19 of the Treaty on the Functioning of the European Union and the resulting Council Directives 2000/43/EC(the Racial Equality Directive) and 2000/78/EC(the Employment Equality Directive) were major developments for the non-discrimination framework of the EU. Essentially, though these directives, ‘race’ and ethnicity, religion, sexual orientation, disability and age were deemed protected characteristics. However, not all characteristics are granted the same significance in the EU legal order since race and ethnicity are protected by Directive 200/43/EC which provides for equal treatment in relation to a plethora of spheres, namely employment, vocational training, social protection and advantages, education and access to and supply of goods and services. However, the Employment Equality Directive, which integrates the rest of the protected characteristics, such as disability and sexual orientation, is limited to the workplace and vocational training.
On a Council of Europe level, there is theECRI(European Council against Racism and Intolerance). This body monitors phenomena related to discrimination and intolerances against ‘race.’ There is no equivalent body on a Council of Europe level to tackle homophobia, biphobia and transphobia and, apart from reference to such themes in documents such as the general recommendation on hate speech, the ECRI extended its mandate to cover these phenomena. The European Union has taken a different path, establishing one human rights body, the Fundamental Rights Agency, dealing with all related themes generally rather than specifically.
In light of the above, this hierarchy of hate, this arbitrary focus on particular protected characteristics over others in certain spheres should leave nothing but a sour taste in the mouth of institutions and Member States which are allegedly founded on principles of solidarity and equality. The reasons for this loophole are unclear. My personalappraisal of the situation, after working both on the ground and in academia is that international human rights law, as a post World War II creation has been predominantly formed by the desire of the international community to prevent the reoccurrence of the horrors of racism. Although persons belonging to other minorities at the time such as LGBTI persons were victims of the Nazis, the focus, most probably because of numerical differentiation, has been on the extermination of the Jews. As such, subsequent developments to tackle hatred have never really departed from this mindset. Another reason could be the (wrongly) perceived issue of choice. More particularly, that one cannot choose to hide one’s ethnic group, whereas one can hide the fact that, for example, he or she is gay or lesbian. Either way and whatever the reasons for this anomaly, within such a context, efforts to combat anti-LGBTI hate on an international and European level are seriously stifled. What is necessary is a common approach where personal and innate characteristics which are real, perceived or exist by association are protected from haters. It must be noted that an emphasis in this post is on sexual orientation and gender identity because it is the only characteristic which this author considers to be completely lacking from the relevant frameworks on the regulation of hate. This position does not exclude discussion on extending the current framework further. For example, although protection of disabled people from violence exists on a UN level, this is not deemed sufficient in relation to identifying and punishing the aggravation arising from the hate towards disabled people. One solution, at least for EU Member States would be amending the Framework Decision as the only European hate crime document to extend to disability as well.
By Ruth Walshe, University of Sussex Categorised by their deviance from the supposed norm of heterosexuality and cisgender identity, LGBTQI people have long now found themselves hoarded together, fighting for their rights side by side. However, there are an abundance of individual identities within LGBTQI communities; each letter standing for a different (though often intersecting)…
By Lumi Zuleta, Senior Advisor, the Danish Institute for Human Rights Social media has undoubtedly become an integral part of our daily lives, as a means of communication and information as well as platforms for distribution of news and thus a central arena for the public debate. In line with this development, the ‘tone’ used…
By Dr Mark Walters, co-Director of the International Network for Hate Studies It is almost twenty years since the UK Government enacted specific race hate crime offences (ss. 28-32 Crime and Disorder Act 1998 (CDA)). Since then, the legislation has been amended to include religious-based hate crimes, while sentencing provisions that prescribe sexual orientation, disability…
Your Problem is My Problem: Disability Hate Crime by Proxy -the Effect on Carers and Voluntary Support Workers
By David Wilkin: Postgraduate Researcher at the University of Leicester You do need to be disabled to be a victim of a disability hate crime – don’t you? Working as a volunteer Job Advisor can provide high levels of job satisfaction alongside stress, disappointment, and utter frustration. This role involves meeting with and trying to help…
By Dr Stephen James Minton
‘Our generation is realistic, for we have come to know man as he really is. After all, man is that being who invented the gas chambers of Auschwitz; however, he is also that being who entered those gas chambers upright, with the Lord’s prayer or the Shema Yisrael on his lips’ (Frankl, 1959, p. 157).
Like many people, I have always had a curiosity about what it is that underlies choices in extreme circumstances; and like many psychologists, I have always had a desire to find out what is it that can or could help human beings to survive. In Marginalisation and Aggression from Bullying to Genocide: Critical Educational and Psychological Perspectives, I have attempted to bring whatever learning I have accrued from my professional experiences (in the fields of psychology and education) to bear on shedding some light on how and why human beings create unliveable situations for their fellow human beings. An informing idea that runs through the book is the position held by various phenomenologist philosophers (beginning with Sartre and de Beauvoir), and those influenced by them, that human beings inevitably define and perceive themselves (and people ‘like them’) as the One, and simultaneously set up those who are somehow not like them, as an oppositional Other. I argue that this results in an observable ‘continuum of marginalisation’ experiences. Essentially, this is based on the findings that similar sets of individual, group and societal mentalities and actions (all of which relate to the targeted persecution and destruction of ‘Otherness’) exist. These underlie and stretch across a continuum of phenomena that span prejudice, stereotyping, discrimination, harassment, bullying and street violence, through to acts of colonisation, forced assimilation, legally sanctioned subjugation, war, and at its most extreme, genocide.
At one end of the continuum, school bullying is a form of aggressive behaviour which generally stems from marginalisation and prejudice. Given its frequency, most people will have had at least second-hand experience of it. Evidence also shows that members of so-called ‘minority’ groups (e.g., ethnic minorities, LGBT people, those with intellectual disabilities and special educational needs) continue to experience both school bullying and other forms of aggressive and discriminatory behaviour (Minton, 2014; Zych, Ortega-Ruiz & Del Rey, 2015). Hence, I see school bullying not so much as a phenomenon in itself, but as one of a number of possible manifestations of broader historical and contemporary patterns of marginalisation in society. Anti-bullying actions to date have generally had rather modest effects. My view is that an explicit focus on prejudice (hitherto, a relatively unattended to factor) should be considered in the redesign of such efforts in order to improve their efficacy.
At the other extreme is genocide. In this book, I have outlined an eight-stage model of physical genocide, which is applied to an exemplar which has received little attention: the genocide committed against the indigenous peoples of North America, and in particular, the Lakota-Cheyenne Campaign (1864 – 1890) of the so-called ‘Indian Wars’ of late nineteenth century United States. My position is that even with the acknowledged limited psychological knowledge that we have, we can, at least, learn to look out for the warning signs of genocidal mentality that are reflected in our discourse around ‘Others’. However, in order to understand why genocidal behaviour is actualised, we must be aware of the systemic and power factors that permit it. It is instructive, I believe, to consider how so-called ‘cultural’ forms of genocide have been perpetrated through the apparently ‘benign’ process of education. Such processes have been repeated all over the world in the models of residential schooling that were set up to ‘civilise’ indigenous peoples. The deliberate, legally sanctioned and forcible separation of indigenous children from their families and native cultures, coupled with the often abusive nature of the ‘education’ that such children received, and the conditions that they endured (although too many did not survive), means that this experience of ‘education’ has continued to cast a long shadow. If restitution, reconciliation and reclamation are to be attained – none of which are possible without arriving at truths – then we must engage with and address these issues of legacy. With their historical predecessors having been part of the problem, it remains to be seen if today’s educators can be part of potential solutions.
If we – as professionals, perhaps, but above all, as human beings – really do wish to do things differently in future, we must, as Frankl (above) stated that we are, be realistic. Our tendency to understand ourselves in oppositional relationships to those we deem as ‘Others’ , and our deeply embedded drives toward aggression, must be acknowledged. However, in my view, some aspects of our dominant, non-critical, approaches to psychology and education, obscure rather than assist us in doing things differently. I feel that if we are to genuinely learn from the horrors of the past and present, we must make a genuine attempt to re-capture genuine person-centredness, in the radical form in which it was originally conceived, in our thinking and our practice. My hope is that, within whatever constraints that we may have, we can become more genuinely active in actualising our possibilities for reaffirming humanity in our individual and collective choices.
Minton, S.J. (2014). Prejudice and effective anti-bullying intervention: evidence from the bullying of ‘minorities’. Nordic Psychology, 66(2): 108-120. doi:10.1080/19012276.2014.928485
Zych, I.; Ortega-Ruiz, R. & Del Rey, R. (2015). Scientific research on bullying and cyberbullying: Where have we been and where are we going. Aggression and Violent Behaviour, 24: 188-198. https://doi.org/10.1016/j.avb.2015.05.015
Dr Stephen James Minton CPsychol AFBPsS is a chartered psychologist and a lecturer in the psychology of education at the School of Education, Trinity College Dublin. He is author of Marginalisation and Aggression from Bullying to Genocide: Critical Educational and Psychological Perspectives (Sense, 2016) and Using Psychology in the Classroom (Sage, 2012), and the co-author of Dealing with Bullying in Schools: A Training Manual for Teachers, Parents and Other Professionals (Sage, 2004) and Cyber-Bullying: The Irish Experience (Nova Science, 2011). His research and practice interests include processes of inclusion, exclusion and marginalisation in education and society (especially regarding so-called ‘minorities’, e.g. indigenous peoples, LGBT people, and members of alternative youth sub-cultures), and aggression and violence (including bullying and cyber-bullying).
By Professor Rupert Brown, Mark Walters and Jennifer Paterson, University of Sussex In 2015/2016 there were 7,194 recorded hate crimes motivated by sexual orientation hostility and a further 858 recorded incidents based on transgender identity hostility in England and Wales; rises of 29% and 41% from 2014/2015 respectively (Home Office, 2015/16). This may suggest improved…
Guest post by Luke Brunning and Per-Erik Milam Luke Brunning is British Academy postdoctoral research fellow at the University of Oxford. He researches topics in ethics and moral psychology. Per-Erik Milam is postdoctoral fellow with the Gothenburg Responsibility Project at the University of Gothenburg. He writes on forgiveness and moral responsibility. On 17 June 2015,…
By Joanna Perry The last year has seen a lot of activity at the European level to better understand and counter hate crime and hate speech, which is set to continue into 2017. A major development has been the creation of the European Union High Level Group (HLG) on combating racism, xenophobia and other forms…