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Criminal Law Dealing with Hate Crimes

Functional Comparative Law- Germany vs. USA

by Christine Marie Shavers (Author)
Thesis LXI, 337 Pages

Table Of Content

  • Cover
  • Title
  • Copyright
  • About the author
  • About the book
  • This eBook can be cited
  • Contents
  • Acknowledgements
  • Translation Index of Selected Judicial Terms
  • Preface
  • Chapter 1 Methodical Introduction
  • A. The Term ‘Comparative Law’
  • B. Classification and Derivation of Comparative Law from other Disciplines
  • 1. Classification of Comparative Law as a “pure science”
  • 2. Comparative Law, a Part of Jurisprudence?
  • 3. Resume
  • C. Tasks and Aims of Comparative Law
  • D. Methods of Comparative Law
  • 1. Case Method and Scientific-Theoretical Comparative Law
  • 2. The Functional Method of Comparative Law
  • 3. The Delineation of Comparative Law to other Disciplines
  • Chapter 2 Preparatory Country Report
  • A. Choosing the Appropriate Reference Country
  • B. The U.S. Legal System
  • 1. The Common Law System
  • 1.1. Origin and Development of the Common Law in the United States of America
  • 1.2. Common Law in the United States of America as of today
  • 2. The U.S. Constitution
  • 2.1. Structure and form of the U.S. Constitution
  • 2.2. Separation of Powers
  • 2.3. Constitutional Powers
  • 2.4. Summary
  • 3. U. S. American Criminal Law
  • 3.1. Constitutional Base of Criminal Law
  • 3.2. Legislative Competence and Institution
  • 3.2.1. Federal Matters
  • 3.2.1.1. Federal Legislative Competence
  • 3.2.1.2. Federal Legislative Institution
  • 3.2.2. State Matters
  • 3.2.2.1. State Legislative Competence
  • 3.2.2.2. State Legislative Institution
  • 3.2.3. Summary
  • 3.3. Manifestations of Criminal Law in the United States of America
  • 3.3.1. Federal Criminal Law
  • 3.3.2. State Criminal law
  • 3.3.3. Summary
  • 3.4. Jurisdiction and Competence of Criminal Courts
  • 3.4.1. Federal Matters
  • 3.4.1.1. Federal Courts
  • 3.4.1.2. Applicable Federal Law
  • 3.4.2. State Matters
  • 3.4.2.1. State Courts
  • 3.4.2.2. Applicable State Law
  • 3.4.3. Summary
  • C. The German Legal System
  • 1. The Roman - Germanic Law System
  • 1.1. Origin and Development of Roman – Germanic Law in Germany
  • 1.2. Roman - Germanic Law in Germany as of today
  • 2. The German Constitution
  • 2.1. Structure and Form of the German Constitution
  • 2.2. Separation of Powers
  • 2.3. Constitutional Powers
  • 2.4. Summary
  • 3. German Criminal Law
  • 3.1. Constitutional Base of Criminal Law
  • 3.2. Legislative Competence and Institution
  • 3.3. Competence and Jurisdiction of Criminal Courts
  • 3.4. Manifestation of Criminal Law
  • 3.4.1. Enhancing Criminal Penalties according to German Criminal Law Doctrine
  • 3.4.1.1. Aggravated Statute
  • 3.4.1.2. Aggravated Ruling Example
  • 3.4.1.3. Transfer of the General Penalty Enhancement Methodology to the matter of Hate Crime
  • 3.4.2. Classification of Offenses
  • 3.5. Sense and Purpose of Penalty according to the German Legal Doctrine
  • 3.5.1. Absolute Penal Theory
  • 3.5.2. Relative Penal Theory
  • 3.5.2.1. General Prevention Theory
  • 3.5.2.2. Specific Prevention Theory
  • 3.5.3. Unification Theories
  • 3.5.4. Summary
  • D. Determination of the Legitimate Ambit of Criminal Law in Both Countries
  • 1. Purpose of Criminal Law according to the American Penal Theory
  • 1.1. Content of the American Penal Theory: Harm Principle
  • 1.1.1. Liberty-Limiting Principles
  • 1.1.1.1. Offense-Principle
  • 1.1.1.2. Legal Paternalism
  • 1.1.1.3. Legal Moralism
  • 1.1.1.4. Summary
  • 1.1.2. Result: Harm-Principle as Main Principle among Possible Others
  • 1.1.2.1. Word Meaning of ‘Harm’ in the Context of the Harm Principle
  • a) Setback of Interests
  • b) The Need to “Wrong” the Other
  • c) Violation of Rights
  • 1.1.2.2. Summary: Word Meaning of ‘Harm’ in the Context of the Harm Principle
  • 1.2. Summary: Content of the American Penal Theory: Harm Principle
  • 2. Purpose of Criminal Law according to the German Penal Theory
  • 2.1. Content of the German Legal Good Theory
  • 2.1.1. Inbuilt or System-Critical Understanding of the Legal Good Doctrine
  • 2.1.1.1. Inbuilt Understanding of the Legal Good Doctrine
  • 2.1.1.2. System-Critical Understanding of the Legal Good Doctrine
  • 2.1.2. Intermediate Result: System-Critical Understanding of the Legal Good Doctrine
  • 2.1.3. Individual- and Collective Goods
  • 2.1.4. Substantiality of the Term Legal Good
  • 2.1.5. Intermediate Summary
  • 2.1.6. Linking the Legal Good Theory to the Social Theory
  • 2.1.7. Constitutional Guideposts
  • 2.1.8. Result of a Critical Understanding of the Legal Good Theory
  • 2.2. Result according the Content of the German Legal Good Theory
  • 3. Purpose of Criminal Law according to the American and the German Penal Theory
  • Chapter 3 Hate Crime in the United States of America
  • A. Course of Action
  • B. Emergence of the Hate Crime Concept in the USA
  • 1. The Hate Crime Concept and the Role of Social Movements
  • 1.1. Social Movements rumored to be the Author of the Social Phenomenon Hate Crime
  • 1.2. Propagation of the Term “Hate Crime” among American Society
  • 1.3. Hate Crime Legislation as Problem-Solving Approach induced by Social Movements
  • 1.4. Influence of Social Movements on the Wording and the Composition of Hate Crime Laws
  • 2. Clarifying the Role of Social Movements
  • 2.1. Social Problem “Hate Crime” - Real or Constructed?
  • 2.2. Propagation of the Term “Hate Crime” among American Society
  • 2.3. Hate Crime Legislation as a Problem – Solving Approach
  • 2.4. Influences on the Wording and the Composition of Hate Crime Laws
  • 3. Conclusion: Emergence of the Hate Crime Concept in the USA
  • C. Beginnings of Hate Crime Legislation
  • D. Effective Hate Crime Laws in the United States of America
  • 1. Federal Hate Crime Laws
  • 1.1. Civil Rights Legislation
  • 1.2. Hate Crime Statistic Act of 1990
  • 1.3. Violence Against Women Act
  • 1.4. Hate Crime Sentencing Enhancement Act of 1994
  • 1.5. Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act
  • 1.6. Conclusion of Current Federal Hate Crime Legislation
  • 2. State Hate Crime Laws
  • 2.1. The Launch of a Model Law
  • 2.2. Legal Formation of State Law
  • 2.2.1. Hate Crime Reporting Statutes
  • 2.2.2. Paramilitary Training Laws
  • 2.2.3. Legislation for Criminalizing Bias-Motivated Behavior
  • 2.2.3.1. Substantial Hate Crime Statutes
  • a) Substantial Hate Crime Statutes refering to previously Penalized Behavior
  • b) “Real” Substantial Hate Crime Statutes
  • aa) Cross Burning Legislation
  • bb) Intimidation Statutes
  • cc) State Civil Rights Laws
  • dd) Conclusion “Real” Substantive Hate Crime Statutes
  • 2.2.3.2. Sentencing Enhancement Laws
  • 2.2.3.3. Overview of Various State Laws and their provided Definition of Hate Crime
  • a) Alabama
  • b) California
  • c) Connecticut
  • d) Georgia
  • e) Louisiana
  • f) Virginia
  • g) Washington
  • 3. Ambiguity of Hate Crime Laws in the American Nation
  • E. Brief Look at the American Justification of Hate Crime Laws
  • F. The Standards set by U. S. Supreme Courts
  • G. Conclusion: Hate Crime in the United States of America
  • Chapter 4 Hate Crime in Germany
  • A. Historical Background of Hate Crime in its Social and Criminal Political Context (Brief Overview)
  • B. The Hate Crime “Concept” in Germany
  • 1. Early Beginnings of Data Collection
  • 2. Data Collection in the Present Day
  • 3. Comparison
  • 4. Operation of the Data Acquisition System
  • 5. Hate Crime Situation in Case Numbers
  • 6. Significance of these Numbers
  • 7. Result: German Hate Crime “Concept”
  • C. Legal Dealing with Hate Crime
  • 1. Draft Bill of Baden-Wuerttemberg Drs. 564/00, dated September 21, 2000
  • 2. Draft Bill of Brandenburg Drs. 577/00, dated September 26, 2000
  • 3. Draft Bill of Mecklenburg-Vorpommern Drs. 759/00, dated November 16, 2000
  • 4. Draft Bill of Brandenburg/Sachsen-Anhalt Drs. 572/07, dated August 20, 2007
  • 5. Draft Bill of the Federal Council Drs. 458/08, dated July 4, 2008
  • 6. Draft Bill of the Federal Council Drs. 17/9345, dated April 18, 2012
  • 7. Descriptive Summary and Evaluation of the Draft Laws
  • 8. Symbolic Reasoning of Hate Crime Law
  • 9. Comparison of the German Drafts with American Laws on Hate Crimes
  • 10. Conclusion Legal Dealing with Hate Crime
  • D. Judicial Dealing with Hate Crime
  • 1. Judicial Recognition of Bias-Motivation in Homicide
  • 2. Judicial Recognition of Bias-Motivation Apart from Homicides
  • 3. Hate Crime in the Light of Section 46 Penal Code
  • 4. Limited Verifiability of Judicial Sentencing Practice
  • 5. Conclusion
  • E. Parenthesis
  • 1. European Criminal Law Initiatives
  • 1.1. Demands of ECRI for Fighting Hate Crime
  • 1.2. Demands of the OSCE for Fighting Hate Crime
  • 2. Conclusion
  • F. Brief Review
  • G. Eligibility Check of Hate Crime Legislation according to German Criminal Law Doctrine
  • 1. The Enactment of a Substantive Norm to Punish Hateful and Bias-Motivated Criminal Behavior
  • 1.1. Possible Goods Protected by a Hate Crime Law
  • 1.1.1. Human Dignity of the Immediate Victim
  • 1.1.2. Human Dignity of the Victim’s Community
  • 1.1.3. Public Peace
  • 1.2. Priority of Protected Legal Goods
  • 1.3. Legitimacy of Hate Crime Legislation according to the Legal Good Doctrine
  • 1.3.1. Precepts of the Legal Good Doctrine
  • 1.3.2. Legitimization of Hate Crime Legislation according to the Social Theory
  • 1.3.3. Legitimization of Hate Crime Legislation according to Constitutional Provisions
  • 1.3.3.1. Constitutional Obligation to enact Hate Crime Penal Law
  • 1.3.3.2. Constitutional Criteria to Legitimize Hate Crime Penal Law
  • 1.3.3.3. Constitutional Restriction to enact Hate Crime Penal Law
  • 1.3.4. Jurisdiction of the Federal Constitutional Court
  • 1.3.5. Result
  • 1.4. Legitimacy of a Hate Crime Norm in Regard to the Protected Human Dignity
  • 1.5. Legitimacy of a Hate Crime Norm in Regard to the Protected Partial Aspect of Public Peace
  • 1.5.1. Ambiguity and Heterogeneity of the Legal Good Public Peace
  • 1.5.1.1. Meaning of the Objective Part of Public Peace in a Hate Crime Norm
  • a) General Legal Safety
  • b) Protection of Public Peace to Preserve the Current Social Climate
  • aa) Prevention of Vigilante Justice
  • bb) Prevention of Revenge Related Activity
  • cc) Exchangeability of Victims
  • dd) Prevention of Intergroup Relations
  • ee) Incited Climate
  • c) Intermediate Summary
  • d) Protection of a Tolerant Climate to Maintain the current Multi-Cultural, Pluralistic Form of Society
  • 1.5.1.2. Meaning of the Subjective Part of Public Peace in a Hate Crime Norm
  • 1.5.2. Current Protection of Public Peace by the German Penal Code
  • 1.5.3. Result: Meaning of Public Peace in a Hate Crime Norm
  • 1.6. Hate Crimes and “Worthiness of Punishment“
  • 1.6.1. Disvalue of the Result
  • 1.6.2. Disvalue of the Act
  • 1.6.3. Intermediate Result
  • 1.7. Necessity of Punishment
  • 1.7.1. Necessity of Punishment with regard to Previously Established Criminal Norms
  • 1.7.1.1. Necessity of a Hate Crime Law with regard to the Existence of certain Criminal Norms
  • 1.7.1.2. Section 211 Penal Code
  • 1.7.1.3. Sections 223; 224; 226 Penal Code
  • 1.7.1.4. Section 46 Penal Code
  • a) Hate Crime Motives: Part of the Wrong or the Culpability of an Offense
  • b) Culpability Addressed in Section 46 Penal Code and the Influence of the Bias Motive
  • c) Hate Crime Motives are Different
  • d) Result According the Reach of Existing Standards
  • e) Necessity with Regard to the German society
  • 1.7.2. Intermediate Result
  • 1.8. Characterization of a Hate Crime Law
  • 1.8.1. Differentation of Injury Torts and Non-Result-Constituted Offenses
  • 1.8.1.1. Sensational Features as Supplementary Elements of Criminal Liability
  • 1.8.1.2. Frequency and Severity are no Criminality Prerequisites
  • 1.8.2. Intermediate Result
  • 1.9. Summary According a Separate Offense
  • 1.10. Prerequisites of Penalization of Hate Crime
  • 1.10.1. Objective Constituent Elements of a Norm
  • 1.10.2. Protected Characteristics
  • 1.10.2.1. Immutable or Fundamental Characteristics
  • 1.10.2.2. Social and Historical Context
  • 1.10.2.3. Excluded Characteristics
  • 1.10.2.4. Implementation Issues
  • 1.10.2.5. The Protection of Persons Affiliated with Principal Hate Crime Victims
  • 1.10.2.6. Conclusion
  • 1.10.2.7. Defining the Motive in Regard to Consequential Differences
  • 1.10.2.8. Drawn Precepts of the Racial Animus- and the Discriminatory Selection Model for Implementation
  • 1.10.2.9. Unimportant Error in Persona
  • 1.10.2.10. Conclusion
  • 2. Further Possibilities of Explicit Implementation of Hate Crime Legislation
  • 2.1. Aggravated Statute
  • 2.2. Implementation of Aggravated Exemplified Rules
  • 2.3. The Enactment of a Rule for Judicial Penalty Assessment
  • 2.3.1. Scope of Culpability that Could be Addressed by such a Regulation Technique
  • 2.3.2. Legislator’s Duty of Providing the Abstract Penal Frame in Regard to the Type of Crime
  • 2.3.3. Hate Crime Enhancement - a Decision of a Court drawn in Equity and Good Conscience
  • 2.3.4. Hate Crime Motives are to be Differentiated from Such Exemplarily Named in Section 46 Penal Code
  • 2.4. Implementation of an Extra Rule in the General Part of the Penal Code
  • 3. Final decision
  • 4. Summarizing Aspects
  • German Abstract
  • Bibliography
  • Series index

← XVIII | 1 → Preface

This research deals with so-called hate crimes. This is the term for offenses that are not solely characterized by a particular motive, namely by hatred against the otherness of others, but by their different social importance in the external world. It is important to understand that these offenses are not only determined by a prejudiced offender motivation. In addition to the inner motivation of the offender they are characterized by objective criteria and adverse social impacts, not only on those who are directly attacked, but on the uninvolved public1. Therefore it is not about the punishment of the prejudiced perpetrator-personality, or of certain prejudiced attitudes and values2; the general idea of this offense category is the wrong- and culpability appropriate protection of legal goods.

This study aims to provide a contribution to the current issue3 on whether there is a need for an explicit legal recognition of hate crimes in the German Penal Code by examining findings from the current criminal treatment of hate crimes in the United States of America and Germany with the use of the functional method of law comparison. Within the context of the exploratory analysis of hate crimes, attention is quickly drawn to those legal systems that already have explicit norms to cover these offenses and which have been involved with the similar social problem more intense, or for a longer period of time, in order to, if possible, be able to gain from their knowledge and profit from their cognition. An examination of the legal situation in the United States reveals a variety of mechanisms enshrined in the country’s numerous legal texts to penalize xenophobia and discrimination. The United States, considered as the founder of the concept of ‘hate crime’4, provides a wealth of experience in terms of penalizing this form of crime. This country, a country of immigration, has always been challenged with the need to unite the coexistence of different ethnic groups. Hence, it is not surprising that a societal problem connected to human diversity, and the need for combating offenses based on disregard or contempt for each other, reaches a long way back in the United States5.

However, Germany is currently becoming a country of immigration as well, thus is becoming to be a multicultural society. Athough the United States is historically known for xenophobic and hate-motivated acts being a common phenomenon, the German society is an example of such victimization as well, ← 1 | 2 → even if the historical background may be different6. After all, the comparable level of civilization, the political organization of both countries and their highly developed constitutions suggest to choose the United States as an appropriate counterpart for comparison7 when aiming to find important prerequisites in the search for a solution to the problem of hate crime. Thereby, precisely the entirely different criminal justice systems and the possible cultural differences may be able to provide a supply of solutions for the respective other society. This comparative study focuses on the aim of possibly gaining a cognition in terms of how to legally deal with this sort of offenses by comparing the current criminal handlings of hate crimes in the United States and in Germany.

A thorough and insightful comparison with the legally chosen actions to combat hate crimes requires a preliminary examination of the term “hate crime”.

The term “hate crime” bears the risk of misconception8. “Hate crime”, “bias crime” or “hate-motivated crime” as well as “bias-motivated crime” are used interchangeably with the same meaning for the same phenomenon, yet the term “hate crime” is the common use9. The composition of both words, ‘crime’ defined as “an act committed or omitted in violation of a law forbidding or commanding it and for which punishment is imposed upon conviction”10 and ‘hate’ described as a feeling of “hostility or animosity towards”11, leads to the understanding of ‘hate crime’ as an act, evoked by “hostility or animosity” towards the victim, which is “committed or omitted in violation of a law forbidding or commanding it, and for which punishment is imposed upon conviction”. “Hatred as an emotion of extreme dislike or aggressive impulses towards a person or group of persons”12 can be the trigger for racial motivated violence, but is also the trigger for revenge crimes, thus for most so-called crimes of passion13. This literal construction of a definition would completely leave out the key element of the perpetrator’s bias or prejudice toward the victim which constitutes the here relevant crime. Hate crimes are about hate, but not towards the victimized individual, but towards his or her inherent characteristics14. Therefore, hate crimes are best described with the ← 2 | 3 → explanation that such crimes “occur not because the victim is who he is, but rather because the victim is what he is”15. With that said, hate-based or hate-motivated conducts constitute a hate crime in the here used sense only if this hatred is connected with antipathy for a racial, ethnic or religious group16, or for an individual because of his membership in that group17; accurately speaking, a hate crime is an offense that is committed because of feelings of racial animus or hate towards the victim because of his or her actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability, homelessness, or sexual orientation.

According to this opinion, the correct term results from common linguistic, literal and judicial usage and “hate crime” is the main denoting expression. This is why, regardless such reasons of clarity, within this work the prevailing legal terming18 as well as the societal and medial main label is adopted19. Whether a designation is correctly applied is not about the literal interpretation, but about its meaning referring to its actual usage. It finally depends on how it is applied and therefore understood by the overall majority in literature20 and especially throughout society21, not what its label intends to mean if understood literally22.

It is crucial to bear in mind that “hate crime” do not refer to particular offenses. It could be an act of intimidation, threat, or assault - therefore directed at a human being - as well as directed against property; in this second case forming an offense of property damage, arson or any other criminal relevant act. Thinking of terrorism, gang violence or other organized - for instance - political violence, or even war23 it becomes obvious that all these acts are motivated by hate and prejudice, or at least group affiliations of the targets to a group which the tortfeasor wishes to harm, but such should not be addressed by the here discussed hate crime concept. So as opposed to governmental controlled acts or bias-motivated criminal acts of large political factions, hate ← 3 | 4 → crimes refer to “[…] acts, committed by individuals or small groups, in which the victim was targeted primarily because of his or her [real or perceived] group [affiliation]”24.

For the presentation of a prefixed, broad working definition, the main featuring characterizations of hate crimes are to be presented. Lawrence states two broad categories of crimes, the first broad category contains all crimes committed without regard to any personal characteristics of the victim25. The second broad category contains all crimes committed precisely because of the victimized person himself. Since in this second category, the victim is attacked because of who he or she is, the victim is not interchangeable26. Such crimes are committed because of emotions, thus hate, retribution, and suchlike towards the victim and result from interpersonal relations and therefore are usually committed between socio-biographic similar persons27. However, the here relevant crimes differ from both categories. Unlike the first category, hate crimes are crimes in which certain identifiable characteristics of the victim are critical to the perpetrator’s choice of attack. Unlike the second broad category, the here discussed criminal conducts are crimes in which the individual identity of the victim is irrelevant28. Therefore, the victim of a hate crime is interchangeable with any other person who shares a certain way of being29. The perpetrator is willing to replace his (initial) target with any other person, who - in his eyes - is of a descent or of an origin that deviates from his own, who shares religious beliefs or appears to be of a race that does not match his. This becomes clear if considering that the offender of a hate crime usually does not even know his chosen victim30. The fact that hate crimes are usually committed among strangers31, furthermore, the committal is even stimulated ← 4 | 5 → through the anonymity between the offender and his victim32 - as in opposite to usual passion crimes which take place among relationships33 - additionally distinguishes hate crimes from other crimes.

A key element of hate crimes is their capacity of sending a symbolic message and thereby symbolizing the victim34. It is claimed that by the committal of a hate crime a message is sent to the victim and to all persons who share those for the attack relevant characteristics of the immediate victim. This message states: You all are neither welcome in ‘this’ society, nor safe35. Therefore, hate crimes are said to have the effect of denying the victim’s right to full participation in society36. Moreover, the community sharing the characteristic of the attacked person is automatically addressed as well, yet not in the practical (physical) sense but through the message which reaches them, enunciating that they are under attack because of being likely-created beings. The victim is chosen as a symbol for the attack of far parts of society, of all those who share the victim’s actual or perceived characteristic37. The fact that hate in this sort of crime does not occur from prior personal relations or from personal contacts, but from the perpetrator’s bias towards a kind of human being or certain characteristics, leads to the circumstance that the immediate attacked target is chosen randomly by an offender to be an object of hate38; thus latent potential hazards are created for certain people, which could intensely disturb the peace in a society as to be examined in this work.

The ordinary concept of hate crime is a “two-tiered crime”.39 This means that it requires two elements: a criminal offense committed with a bias motivation. The criminal offense refers to an act, which on its own is penalized by criminal law; indifferent whether it is an offense against person or property40. This first ← 5 | 6 → element of a hate crime is referred to as the “base offense”41; “parallel crime”42 or “underlying crime”43. The second part of a hate crime is said to result from the fact that the offender committed the criminal act for reason of prejudice or bigotry based on the victim’s real or perceived membership in a legally recognized protected status, which would typically be race, ethnic origin, religion and any other similar common factor, which the legislator chooses to be in need of enhanced protection. It is significant for such a characteristic to be shared by a group that is historically and actually known for being a cause for discriminatory singling out, whereby with “historically” it is referred to the particular history of the society which is concerned. Yet, this generally understood concept of the “two-tiered” crime of a hate crime is redefined, or at least defined down, during this work. All in all, the second element of a hate crime, the bias-motivation, is not the only reason for the differentiation of hate crimes from ordinary crimes. Hate crimes are more than ordinary crimes which are modified through the bias-motivation of the perpetrator; they are different due to their changed social significance. Thus, even a behavior which, without the knowledge of the xenophobic, homophobic, etc. background, would present itself as harmless may create a criminal relevant form of threat. Hence, behavior may constitute a criminal offense, if it -due to its outward form, which it receives by reason of the offenders motivation- recognizably injures a certain part of the people of society44.

Hate crime is more a concept than a specific crime category. The term “hate crime” neither necessarily refers to a specific type of offense, nor to special laws but to a concept of combating bias-motivated criminal activity on the legal level, and above that, even far before it reaches legal involvement. According to this conception hate crime legislation covers statutes which require authorities to collect data on hate- or bias-motivated crimes; legislation that mandate law enforcement training, prohibit the undertaking of paramilitary training, specify parental liability, provide for victim compensation and laws prohibiting the wearing of masks and hoods45. Within this dissertation, the focus is directed to criminal law; as the term ‘hate crime law’ intends, the attention is put on criminal statutes which impose penalties for harmful behavior induced by bias against the other. Consequently, “to qualify as a hate crime law, a […] statute must criminalize, enhance penalties for, or amend existing statutes regarding [offenses] motivated by bias toward individuals or groups based on particular status characteristics […]”46. In order to fulfill these requirements a law must imply one of the named state policy actions, explicitly ← 6 | 7 → refer to the subjective intention of the perpetrator47 and it must name a list of legally recognized and by the statute protected social statuses48.

Subsequent to this introduction the basic principles of the applied methodology are presented. Hereinafter, the political organization of the United States, with its advanced Constitution, and the foundations of the U.S. legal system are illustrated briefly in order to provide a basis for comparison and for the then following presentation of the social problem in its existence which it has in the American society. This presentation takes place by examining how the U.S. legal order currently protects its citizens from attacks motivated by “disregard or contempt because of their, determined in factual or fictional group characteristics, identity”49. Thereafter, the current German legal situation of combating hate crimes is analyzed, including the actual classification of such offenses by the German law and bethinking how the capturing of this sort of offense could be optimized by German law.

Legal decisions, judicature and literature were considered until December, 2012. ← 7 | 8 →

1Schneider, Kriminologie der Hassdelikte. Konzeptionen, Ursachen, Vorbeugung und Kontrolle, in: Bewährungshilfe, 2003, p. 117; Schneider, Politische Kriminalität: Hassverbrechen, Fremdenfeindlich-keit im internationalen Kontext, Kriminalistik 2001, p. 22.

2Schneider, Kriminologie der Hassdelikte. Konzeptionen, Ursachen, Vorbeugung und Kontrolle, in: Bewährungshilfe, 2003, p. 117; Schneider, Politische Kriminalität: Hassverbrechen, Fremdenfeindlichkeit im internationalen Kontext, Kriminalistik 2001, p. 22.

3View the current draft law of the Federal Council to amend the German Penal Code, April 18, 2012 (Drs.17/9345).

4Coester, Hate Crimes, 2007, p. 82.

5Coester, Hate Crimes, 2007, p. vii.

6Refer to the introductory text in Aydin, Die strafrechtliche Bekämpfung von Hassdelikten, 2006.

7Refer to the introductory text in Aydin, Die strafrechtliche Bekämpfung von Hassdelikten, 2006.

8Perry, Where do we go from here?, p.1; Unfortunately the term Hate Crime does not explain itself. (Jacobs/Potter, Hate Crimes, Criminal Law & Identity Politics, p. 27).

9Perry and Lawrence use bias crime (Lawrence, Punishing Hate, 1999; Perry, In the name of hate, 2001). Charkraborti, Gerstenfeld, Jennes and Grattet, and far more prefer the term hate crime, however, the distribution of the favored wording within literature more or less mirrors the designation used by the public. Even though the term bias crime would be more correctly, the term hate crime prevails. According to Perry, the reason for this is that the term hate crime branded itself on the societal memory and therefore it is difficult to change this designation.

10http://www.thefreedictionary.com/crime - accessed 2011/09/09.

11Further held definitions as “to dislike or wish to avoid; shrink from” or “to have strong dislike or ill will for; loathe; despise” does not make a difference for the here to be understood subject. (Neufeldt & Guralnik, Webster´s new world college dictionary (3rd Ed.), 1997, p. 617; http://www.thefreedictionary.com/hate - accessed 2011/09/09.

12Sternberg, The Psychology of Hate, 2004, p. 37.

13Lawrence, Punishing Hate,1999, p. 9.

14It is elementary to emphasize that the key factor of those here relevant crimes is not the perpetrator´s hatred of the victim per se, but rather his bias or prejudice towards the victim. It is considered that hate can be distinguished in two forms: a rational hate and a character-conditioned hate. While rational hate grounds on a verifiable basis and bears upon the relation between the offender and his chosen victim, the character-conditioned hate misses comprehensible base. Due to character-conditioned hate an entire target group is chosen (randomly) to be the object of hate and aggression. (Fromm, Anatomy of human destructiveness. 1992; Sternberg, The Psychology of Hate, 2004, p. 38)

This makes character-conditioned hate so dangerous, neither could the victim influence his victimization in any way nor has the specific victim-selection taken place in any other rational way, thus it is not preventable, concerning this more later in this dissertation.

15Lawrence, Punishing Hate, 1999, p. 9.

16Race, ethnic and religion are named exemplary and do not raise any claim to completeness.

17Lawrence, Punishing Hate, 1999, p. 9.

18View, for instance, “Hate Crime Statistic Act” which was enacted on April, 23rd 1990.

19Interchangeable usage with bias crime included.

20Altschiller; Hate Crimes, 1999; Coester, Hate Crimes, p. 22; Favoring bias crime over Hate Crime: cf. Lawrence, Punishing Hate, 1999.

21Perry states, that the terminology hate crime is in the minds of society and not able to be rejected. (Perry, In the name of hate, 2001).

22Many crimes which are motivated by hatred are not categorized as hate crimes. Murders, for instance, are often motivated by hatred arousing from previous relationship, but these are not considered as hate crimes, unless the victim was chosen because of a protected characteristic. The term hate crime is particularly used for crimes that are motivated by hateful bias and prejudice against legally protected characteristics which the victim inheres od the perpetrator perceives the victim to inhere. Therefore, hate crime is the correct term to use for the here relevant offenses, its literal translation is not of relevance.

23Gerstenfeld, Hate Crimes, 2004, p. 9.

24Gerstenfeld, Hate Crimes, 2004, p.10; Further official definitions applied in the United States of America: The FBI follows the federal general definition of hate crime to be a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, ethnic origin or sexual orientation.” (http://www.fbi.gov/about-us/investigate/civilrights/hate_crimes/overview - accessed: January 2012); NY CLS Penal § 485.05 defines hate crimes as specified offenses committed against persons intentionally selected “[…] because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct […].”; NY CLS Penal § 485.05 defines hate crimes as specified offenses committed against persons intentionally selected “[…] because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct […].” (Illinois 730 ILCS sec. 12-7.1 Hate Crime); The Hate Crime Statistic Act refers to “[…] crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity, […].” (Public Law 101-275).

25Lawrence exemplarily states random muggings, drive-by shootings as all killings out of lust to kill and most robberies and burglaries, out of a wide array of crimes, which, for instance, also includes crimes in which the choice of the victim is dictated solely by the requirements of the crime; for example, “the bank teller is assaulted as a means of robbing the bank, not because of any individual characteristics of the teller”. (Lawrence, Punishing Hate,1999, p. 9).

26This second broad category of crimes refers to most passion-crimes, thus crimes committed of revenge and hate. (Lawrence, Punishing Hate,1999, p. 9).

27Kunz, Kriminologie, pp. 238, 239; Tschaggelar, Hate Crimes und Hasskriminalität, p. 9.

28Lawrence, Punishing Hate, 1999, p. 9.

29Likewise, although in-artfully expressed by Seehafer: “However, the difference lies in the fact that the victim falls into a bogeyman of the offender and therefore is attacked, thus, in this respect, it is precisely not randomly or optionally interchangeable.” (Seehafer, Strafrechtliche Reaktionen auf rechtsextremistisch/fremdenfeindlich motivierte Gewalttaten, p. 69 - emphasis added by underlining).

30The offender and his victim usually never had personal contact. (Cf. Perry, In the name of hate, p. 29)

31Schneider, Hassverbrechen, in: Schneider, Kriminologie für das 21. Jahrhundert, p. 76.

32Eisenberg, Kriminologie, 2005, p. 897; Tschaggelar, Hate Crimes und Hasskriminalität, p. 9.

33Kunz, Kriminologie, pp. 238, 239.

34Therefore, Hate Crime are called “message-crimes”. (Füllgrabe, Hassverbrechen, Kriminalistik, 2004, pp. 391-397 (394); Schneider, Politische Kriminalität: Hassverbrechen, Fremdenfeindlichkeit im internationalen Kontext, Kriminalistik 2001, p. 26; Schneider, Kriminologie der Hassdelikte Konzeptionen, Ursachen, Vorbeugung und Kontrolle, in: Bewährungshilfe, 2003, pp. 115,117; Schneider, Hasskriminalität: Eine neue kriminologische Deliktskategorie, JZ, 2003, pp. 497-504 (498); Schneider, Hass- und Vorurteilskriminalität, in: Grafl/Medigovic, (eds.): Festschrift für Manfred Burgstaller, 2004, pp. 553-568, (555); Singer, Erfassung der politsch motivierten Kriminalität, in einem neuen Definitionssystem mit mehrdimensionalen Analysemöglichkeiten, p. 34; Wallace, Victimology, 1998, p. 216).

35Hate Crime Laws: A Practical Guide, published by the OSCE Office for Democratic Institutions and Human Rights (ODIHR), 2009; p. 17.

36Hate Crime Laws: A Practical Guide, published by the OSCE Office for Democratic Institutions and Human Rights (ODIHR), 2009; p. 17.

37Also refer to footnote 14. This fact makes “character-conditioned hate” so dangerous, neither could the victim influence his victimization in any way nor has the specific victim-selection taken place in a rational manner, thus this sort of victimization is not preventable.

Details

Pages
LXI, 337
ISBN (PDF)
9783653036411
ISBN (ePUB)
9783653996449
ISBN (MOBI)
9783653996432
ISBN (Book)
9783631642207
Language
English
Publication date
2014 (July)
Published
Frankfurt am Main, Berlin, Bern, Bruxelles, New York, Oxford, Wien, 2014. LXII, 337 pp.

Biographical notes

Christine Marie Shavers (Author)

Christine Marie Shavers, born in the USA, studied law at Ludwig-Maximilian-University in Munich (Germany).

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Title: Criminal Law Dealing with Hate Crimes