Neglect, Marginalization, and Abuse: Hate Crime Legislation and Practice in the Labyrinth of Identity Politics, Minority Protection, and Penal Populism

Andras L Pap

doi:10.1017/nps.2020.21

Abstract

AbstractUsing Hungary as a case study and focusing on legislative policies and the practical application of hate crime legislation, this article shows the various ways legal policy can become misguided in the labyrinth of identity politics, minority protection, and penal populism. The first mistake states can make, the author argues, is not to adopt hate crime legislation. The second error arguably pertains to conceptualizing hate crimes as an identity protection but not a minority-protection mechanism and instrument. The third fallacy the author identifies concerns legislative and practical policies that conceptualize victims based on self-identification and not on the perpetrator’s (or the wider community’s) potential perception and classification. The fourth flaw concerns the abuse of the concept of hate crime when it is applied in interethnic conflicts wherein members of minority communities are perpetrators and the victims are members of the majority communities. The fifth is institutional discrimination through the systematic underpolicing of hate crimes.

Highlights

Focusing on legislative policies and patterns surrounding the practical application of hate crimes, this article contributes to the ever-complex puzzle of how law conceptualizes and operationalizes race and ethnicity as well as ethno-racial identity
Concluding Remarks This article pointed to the various ways legal policy can be misguided in the labyrinth of identity politics, minority protection, and penal populism
It was argued that hate crimes should be conceptualized as a minority-protection mechanism, which should not protect identity but identifiable vulnerability on the group level, and that in the legislative language a thorough enumeration of the protected characteristics is warranted by rule of law requirements

Summary

Introduction

Focusing on legislative policies and patterns surrounding the practical application of hate crimes, this article contributes to the ever-complex puzzle of how law conceptualizes and operationalizes race and ethnicity as well as ethno-racial identity. Defining hate crimes is not a straightforward task This is especially true for the purposes of this article, which struggles with the paradox that, while it raises general points for discussion, talking about legislative policies will always need to have specific jurisdictions and textual language as points of reference. Hate crimes will entail a base crime, an already punishable criminal offence (.e.g., intimidation, threats, assault, murder, property damage, vandalism, arson, etc.), and a specific motivation of bias or hatred against certain predefined groups with protected characteristics (e.g., race, religion, ethnicity, nationality, sexual orientation, disability, etc.). This article limits the discussion on hate crimes to physically violent behavior targeting members of vulnerable minority communities (identified as such by the offender)

The Rationale

Findings

Debates and Critical Issues