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Criminal Law Dealing with Hate Crimes

Functional Comparative Law- Germany vs. USA

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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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Chapter 4 Hate Crime in Germany

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The internationally launched term “hate crime” is literally translated into German from time to time, but - at least since the reform of the police data collection system in Germany took place in 2001 – it is applied in the basics of its original American meaning, independent from English or translated German usage1178. Since that time hate crimes are understood as acts which originate from the dislike of a perpetrator towards the, usually unchangeable, identifying characteristics of a victim1179. Therefore, the social problem, freed from any involvement in idiosyncratic socio-political and legal conceptions, is acknowledged in both countries in a similar fundamental meaning. However, this applies only to the understanding which is followed in the detection mode, as it is revealed in the following. In order to reach the identical core of this social problem, the country-specific classifications of the phenomenon must be understood. Then one is able to extract the individual surroundings and recognize the comparability of the problem, coexisting in both countries, named hate crime.

Meanwhile in German literature it is widely acknowledged that criminal acts, which are motivated by hate against certain characteristics and based on the bias of an offender towards certain human features, require special criminal attention1180, and moreover, constitute a separate offense category1181. This recognition is gained from knowledge established in U. S. studies that the harm resulting from hate crimes towards the individual victim and the entire society is larger than such caused by comparable non-hate-motivated criminal acts1182. The fact...

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