Experts Offer OSCE Nations Guidance on Hate Crime Laws
Posted: December 12, 2007
ADL joined an experts' roundtable on hate crime legislation convened by the Organization for Security and Cooperation in Europe's Office for Democratic Institutions and Human Rights (ODIHR) in Vienna, Austria.
Legal representatives from a dozen countries participated in the discussion, held December 6-7, which was designed to help create OSCE guidelines for hate crime legislation – to increase awareness of the nature and magnitude of the hate crime problem and to improve and systematize legal, legislative, and programmatic responses to the issue throughout the divergent criminal justice systems and legislative frameworks within the OSCE region.
The international group of participants included representatives from non-governmental organizations, academics, and law enforcement and government officials. ADL was represented by Michael Lieberman, the League's Washington Counsel and point person on federal response to hate violence.
The OSCE approaches bias-motivated violence and manifestations of intolerance as a security issue. The ODIHR has been tasked with providing assistance to the participating states of the OSCE to improve their response to hate crimes.
Currently, ODIHR collects information and publishes an annual report on hate crimes and incidents in the OSCE region and also maintains a database of legislation on hate crimes. Most OSCE member states have laws against incitement to racial hatred, but only a minority have hate crime laws penalty-enhancement laws favored in the United States. Hate crime laws also differ as to the protected categories and the kind and degree of motivation required to prove the crime.
ODHIR research has revealed that there is wide variance in OSCE countries' hate crime laws – including their coverage, enforcement, and implementation. A number of international conventions also mandate criminalization of bias-motivated criminal activity, although no specific legislative route is required. Research indicates that crimes motivated by bias and xenophobia appear to be increasing across the OSCE region – and that most states have a weak record in prosecuting hate crimes.
In an effort to promote greater awareness and effective response to hate violence throughout the OSCE region, the ODHIR convened the roundtable to craft guidance for policymakers, legislators, government officials for reviewing the effectiveness of their state's existing laws – and for enacting new provisions in the future.
Roundtable participants tackled a number of difficult questions during the two-day meeting:
- To what extent are hate crime laws underenforced because of lack of recognition or lack of political will?
- Should the guidelines deal with hate speech?
- Who is the target audience for these guidelines and what is the best way to reach them?
- What categories of crime should be included – and how broad should the coverage of these statutes be?
Mr. Lieberman described the League's experience in promoting federal and state hate crime laws. As a preliminary matter, he outlined some differences between the United States and the other OSCE nations.
Unlike many other states, the U.S. is a very diverse nation – composed of individuals with many different racial, ethnic, and religious backgrounds. In addition, America's broad First Amendment protections permit even the most racist and anti-Semitic speech -- but that fact has not prevented the federal government and 45 states and the District of Columbia to enact laws criminalizing bias-motivated conduct.
ADL outlined common elements in enacting hate crime laws in the United States:
1) Recognition of the problem of hate violence – that these crimes do occur and that they have a special impact on the victim and the victim's community.
ADL emphasized the importance of hate crime data collection efforts to help policymakers understand the nature and magnitude of the hate crime problem.
In addition, the League described the positive impact in America of data collection mandates on the response of the criminal justice system to the individual acts of hate violence.
2) Establishing broad-based coalitions of religious, civil rights, civic, educational, and professional organizations supporting the enactment of hate crime laws.
3) Public support for hate crime laws – including public opinion, newspaper columnists, and editorial boards.
4) Support by law enforcement officials.
ADL also outlined principal obstacles to the enactment of effective and inclusive hate crime laws:
- Inattention, lack of interest, or denial by government officials and police authorities.
- Constitutional and criminal law arguments against the enactment of these laws – free speech protections, the role of law enforcement in society, and unresolved conflicts concerning federal/state power and jurisdiction.
- Opposition by religious conservatives to the enactment of inclusive hate crime laws.
The guidance is expected to be ready for release in 2008.