Abstract
In this response to Duncan Breen and Juan Nel’s article on the need for legislation to enhance the sentences imposed on those convicted of hate crime, we draw on the international literature and our own research on racially motivated offending to argue that South Africa ought to adopt a more circumspect approach than the UK and the USA if it wishes to deal effectively with this kind of offending. We also warn that hate crime law brings with it some significant and undesirable unintended consequences for those it is meant to protect.
Highlights
In the December 2011 issue of South African Crime Quarterly, Duncan Breen and Juan Nel made the case for introducing new legislation to address ‘the apparent scourge of hate and biasmotivated crimes’
They endorse the Department of Justice and Constitutional Development’s (DoCJD) plans to bring forward legislation in order ‘to strengthen the role of police and justice officials in holding [hate crime] perpetrators accountable and as a result send a clear message to society that such crimes will not be tolerated’.6. When it comes to the detail of the legislation, Breen and Nel remain open-minded about which of two ‘legal models of hate crime legislation’ – the ‘hostility’ model or a more expansive ‘discriminatory selection model’ – South Africa should adopt, warning that ‘careful consideration’ would have to be given to ‘past, present and future trends of hate crime’ before taking a decision one way or the other.[7]
Whether the South African Police Service will prove more amenable is doubtful if Steinberg is correct in arguing that the xenophobic violence of May 2008 was in many ways a re-enactment of police action:
Summary
In this response to Duncan Breen and Juan Nel’s article on the need for legislation to enhance the sentences imposed on those convicted of hate crime, we draw on the international literature and our own research on racially motivated offending to argue that South Africa ought to adopt a more circumspect approach than the UK and the USA if it wishes to deal effectively with this kind of offending. Breen and Nel take the constitutional prohibition of discrimination on the basis of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth contained in section 9(4) of the Bill of Rights as a starting point They suggest that some additional characteristics, such as gender identity and expression and HIV status merit protection.[8] they reserve judgement on how best to achieve the objective of punishing hate crimes more severely either by creating new substantive offences or providing for evidence of the presence of ‘hate’ or ‘bias’ to be treated as an aggravating circumstance in sentencing for existing ones (or even, as has been done in England and Wales, by combining both approaches).[9]. Based on our own research on racially motivated offenders in the UK and our reading of the international literature, we anticipate that data of this kind are likely to raise further doubts about whether legislation is either a necessary or a sufficient response to hate or bias-motivated offending
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