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- Chapter 8 – Other legal models for addressing hate crime
Chapter 8 - Other legal models for addressing hate crime
If we decide there are problems with the sentence aggravation model that can’t be easily fixed, we could recommend changing the legal model. We are interested in feedback on two other legal models used to address hate crime overseas (which could be adopted on their own or as well as sentence aggravation):
- specific hate crime offences (recommended by the Royal Commission); and
- the Scottish hybrid model, which combines aspects of sentence aggravation and specific offences.
Specific hate crime offences
Under this model, hate motivation is part of the offence a person is charged with. It must be proven at trial beyond reasonable doubt (unless the defendant pleads guilty). If the defendant is convicted, it should be clear from the court’s sentencing notes and any media reporting that the offending was a hate crime, because hate motivation is part of the offence. The hate motivation is also recorded in the offender’s criminal records. The maximum penalty is higher for hate crime offences. Hate crime offences only cover specified offences and characteristics.
Specific hate crime offences are used in Australia (Western Australia and Queensland) and England and Wales (alongside sentence aggravation).
What offences should be covered?
Hate crime offences are usually based on existing offences (such as assault). These existing offences are called the ‘base offence’. The hate crime offence is the same as the base offence except the prosecution must also show the offender was motivated by hate. Hate crime offences have a higher maximum penalty than the base offence.
Offences must be reasonably specific, so it is clear to the public what conduct is not allowed. Each offence also needs to have its own maximum penalty. Because of this, hate crime offences only cover a limited number of base offences and protected characteristics.
If we recommend introducing specific hate crime offences, we will need to consider what offences they should apply to. Some of the things we may need to think about are:
- how often a base offence is hate-motivated; and
- whether the maximum penalty for the base offence is already high enough to punish hate crimes.
The Royal Commission recommended having hate crime offences for offensive behaviour or language, wilful damage, intimidation, assault, arson and intentional damage. However, this would not cover all hate crime. For example, in Aotearoa New Zealand, burglary and the use or possession of explosives have been hate crimes.
Advantages and disadvantages
Specific hate crime offences may have some advantages compared to the sentence aggravation model. For example, they may:
- send a stronger message that hate crime is serious;
- improve recording and monitoring of hate crime;
- mean more offences are investigated and prosecuted as hate crimes;
- change people’s views by raising awareness of the harm caused by hate crime;
- be fairer to the defendant, since hate motivation would need to be proven at trial beyond reasonable doubt (unless the defendant pleaded guilty).
Specific hate crime offences may also have some disadvantages. For example:
- They don’t cover all hate crime. Some people might think this is unfair.
- They may make criminal trials longer, more complex and more costly. Defendants may also be less likely to plead guilty. The prosecution would need to prove hate motivation at trial, which may involve more evidence from victims and other witnesses.
- Hate motivation may go unrecognised in some cases. For example, prosecutors may charge a person with the base offence instead of the hate crime offence because the defendant would plead guilty to the base offence.
- Hate motivation would be treated more seriously than other sentence aggravating factors (such as serious cruelty or the vulnerability of the victim).
- Punishing offenders more harshly based on their motivation may infringe the rights to freedom of thought and expression. Investigating suspects’ opinions and beliefs could also have a chilling effect on expression.
- Hate crime offences may be disproportionately enforced against minorities and lower socio-economic groups (especially Māori, who are overrepresented in the criminal justice system, including as alleged hate crime offenders).
The Scottish hybrid model
Under this model, any offence can be identified as ‘hate-aggravated’. The prosecutor must state the offence was hate-aggravated when the defendant is charged and the aggravation must be proven at trial (unless the defendant pleads guilty). The hate motivation is taken into account when an offender is sentenced, but the maximum penalty for the offence doesn’t change. Convictions show the offence was a hate crime.
Like the specific offence model, the Scottish hybrid model only applies to specified protected characteristics.
The Scottish hybrid model has similar advantages and disadvantages to specific offences. The main differences are that it:
- doesn’t increase the maximum penalties for hate crimes (so specific offences may be better at showing that hate crime is serious);
- covers more hate crime, since it applies to any offence;
- is simpler, because it doesn’t create lots of separate hate crime offences.
A possible criticism of the Scottish hybrid model is that it may not be worth requiring prosecutors to prove hate motivation at trial, since the maximum penalty for a hate-aggravated offence is the same as for the non-aggravated one.
Should the sentence aggravation model be kept if a new legal model is adopted?
Both the specific offence and Scottish hybrid models could be used with the sentence aggravation model. If a new legal model is adopted, we are interested in whether the existing sentence aggravation model should be kept as well.
The benefits of using a new model with the sentence aggravation model are that:
- the benefits of the specific offence or Scottish hybrid model would still apply; and
- sentence aggravation would cover hate crimes not covered by the new model.
The main disadvantage of using a new model with the sentence aggravation model is it would make the law more complex. There would need to be rules about when sentence aggravation would apply. For example, would it apply if the prosecution could have charged a defendant with a specific hate crime offence but chose not to?