Lord Bracadale’s report on hate crimes is clear, considered and thoughtful, but ultimately problematic.
The judge was asked to consider whether the wording of hate crime laws could be clearer and whether other groups should fall under their umbrella.
At present, crimes committed against members of protected groups can be treated by the courts as aggravated offences if they feature “malice or ill-will” towards that group. Hate crime laws currently apply where a perpetrator demonstrates hostility on the basis of race, religion, disability, sexual orientation or transgender identity.
READ MORE: Campaigners insist plans to make sexism a hate crime don't go far enough
Lord Bracadale is recommending ministers consider adding further categories to the law, so that crimes motivated by malice towards the victim on the basis of their age or gender are also treated as hate crimes.
Offences in which gender is an aggravating factor are almost always committed against women, he states, noting that women are no longer prepared to tolerate sexual harassment they might have put up with in the past. Extending the hate crime laws to cover gender would also allow authorities to tackle the increased prevalence of online abuse and misogyny against women, he adds.
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Re-categorising crime where misogyny can be shown to be a factor might mean other victims would report such behaviour, and would ‘send a message’ culturally, he says. But sexual harassment is already a crime, and as Lord Bracadale points out, “different people use the term misogyny to mean slightly different things”. It is debatable whether “sending a message” is a good basis for changing a law, especially when the nature of the behaviour which would qualify as gender-based hate crime is unclear.
This applies even more clearly in the case of offences against the elderly. Lord Bracadale admits that while some offences against the elderly are motivated by hostility, the majority are committed “because of the frailty and vulnerability of the elderly victims.”
During his consultation, legal bodies pointed out that existing law is robust in dealing with offences committed against the vulnerable elderly and Lord Bracadale concedes his changes are likely to capture a “relatively small proportion” of crimes against them.
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There are two key problems with applying the definition of hate crime more widely. It risks undermining public understanding of the issue, diluting the original goals of recognising crimes against groups such as ethnic minorities and disabled people. It also risks restricting individual freedoms and freedom of speech.
The recommendations are well-intentioned. But there are other possible options – such as a separate aggravation in crimes where people are vulnerable or exploited, but not treating them as ‘hate crime’. ScottishMinisters should consider whether further categories of hate crime are the best, or even an effective way, to proceed.
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