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Criminal Law Dealing with Hate Crimes

Functional Comparative Law- Germany vs. USA


Christine Marie Shavers

This study aims at providing a contribution to the current issue of hate crime. It analyzes the possibilities which are served by the German and the US American law to penalize bias-motivated crimes, while considering the historical and social background of both societies. It is questioned which legal goods are harmed by the committal of hate crime and whether the German penal law is suitable to address the wrong of hate crime and whether it is capable of properly punishing this sort of crime in respect to the blameworthiness of the offender. By applying the functional method of law comparison, understandings regarding the handlings of hate crimes in the USA and in Germany are exploited and, as a result, possible solutions for weaknesses of the prevailing law are offered.
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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....

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