Author’s Bio: Isabelle Ehiorobo is a 3rd year Law undergraduate studying at the University of Sussex. Isabelle has interests in tackling social justice issues through writing, campaigning and public speaking . She aspires to practice as a Human Rights Lawyer worldwide and also aims to pursue her passion for writing, ultimately becoming an author. Have…
Author: Caroline Erentzen (MA, JD, PhD Candidate/Psychology) is a senior PhD Candidate in Psychology (York University) and holds a JD from Queen’s University. Her primary research focuses on hate crimes, including the role of model victim prototypes and schematic processing in observer reactions to such crimes. Her larger research sits at the intersection of psychology and the law,…
By: Joanna Perry As Bogdanić and Rakić point out in this volume, hate crimes have been with us ‘since the distant past’. Indeed, people acting on their racism, homophobia, disablism, and religious intolerance in harmful and discriminatory ways across the world is hardly new. However, as the contributions to this book illustrate, understanding and addressing…
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 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…
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).
Guest post by Tanner Mirrlees, the Director of the Communication and Digital Media Studies program at the University of Ontario Institute of Technology (UOIT). His research examines the political economy of US media and communications dominance around the world, the relationship between the US security state and cultural industries at war, and the economics and…
By Dr Irene Zempi, Lecturer in Criminology, Department of Sociology, Nottingham Trent University. Irene is a board member of Tell MAMA, Nottinghamshire Hate Crime Steering Group, and Leicestershire Police Hate Crime Scrutiny Panel. She is the co-author of the books: Islamophobia: Lived Experiences of Online and Offline Victimisation (Policy Press, 2016 with Dr Imran Awan)…
By Dr David Brax, post-doc at the Centre for European Research, and the Department of Philosophy, Linguistics and Theory of Science, Gothenburg University. Dr Brax is a member of the advisory board for the INHS, and an associate editor of the book series “The Psychology of Hate Crime as Domestic Terrorism (Preager 2016). His most recent…
By Dr Loretta Trickett, Nottingham Law School In response to the rise in incidents after the EU Referendum, a new initiative on hate crime with cross-party and government support has been launched. The #BetterThanThat campaign was initiated by the Polish Cultural Institute and includes other groups such as Kick it Out, The Board of Deputies of British…