The Human Dignity Trust’s new report is Legislating to Address Hate Crimes against the LGBT Community in the Commonwealth. Commissioned as part of our work with the Equality & Justice Alliance, the report provides a detailed analysis of the purpose of Hate Crimes laws and assesses how these laws, already enacted in parts of the Commonwealth, are being used to tackle the pervasive violence faced by LGBT communities.
Introduction
Anti-LGBT hate crimes are criminal offences that are motivated by, or which demonstrate, hate or prejudice towards the victim based on the victim’s perceived sexual orientation or (trans)gender identity. There have been significant increases in the number of recorded hate crimes across the globe over the past two years, including hate crimes directed against lesbian, gay, bisexual and transgender (LGBT) people (e.g. Southern Poverty Law Centre, 2016; Home Office, 2018).
The proliferation of anti-LGBT hate crime is no more felt and experienced than in a number of Commonwealth countries. A detailed analysis of the nature and extent of anti-LGBT hate crime and its impact on individuals and societies is provided in a separate publication produced in parallel to this report, entitled “Hate Crimes against the LGBT Community in the Commonwealth: A Situational Analysis.” This supplementary report provides a fully elaborated contextual analysis that will form a complementary component to the present report. The common types of bias-motivated crimes range from physical and sexual assault to torture and murder, and they are committed by family members, the public and state authorities alike.
The widespread problem of hate crime (including state-sponsored violence), and the failure of many countries to tackle the problem in law, means that this discriminatory type of offending continues to be one of the key human rights issues of our time. As will become evident throughout this report, some Commonwealth countries are actively challenging anti-LGBT hate crimes through the enactment of specific laws aimed at enhancing the penalties of offenders who commit crimes with an element of anti-LGBT bias. For these countries, hate crime legislation is now an important part of the state’s toolkit in challenging violent prejudice in society. Annex A contains hate crime legislation that has been introduced across the Commonwealth.
This report focuses on the way that the law can help address hate crimes and the enhanced impacts these crimes have on LGBT communities within the Commonwealth.
We propose that legislatures should enact hate crime laws aimed at preventing the pervasive hostilities that are directed at LGBT people, often on a daily basis. The report provides a detailed analysis of the purpose of these laws and assesses how hate crime laws, already enacted in parts of the Commonwealth, are being used to tackle the problem. The aim is to identify and assess the different types and models of legislation that are being used and to provide recommendations for other Commonwealth legislators who wish to challenge the proliferation of anti-LGBT hate and prejudice through the use of such laws.
Some legal experts have argued that positive changes in national law to encompass LGBT rights have come about not through adopting the pathways that proved most successful in the developed West/Global North but through adapting existing national law. Many Commonwealth countries now have parallel laws (sentence enhancements for racial or religious prejudice; hate speech laws that take account of sexual orientation; protection against sexual orientation discrimination in the constitution) which could be drawn upon to point the way forward to LGBT hate crime laws. Some courts draw heavily on the sentencing guidelines of longer-established jurisdictions. For example, the Eastern Caribbean Supreme Court cites the UK Sentencing Guidelines in criminal cases: these guidelines specifically allude to sexual orientation and gender identity hostility as an aggravating factor at sentencing. A survey of these parallel legal developments will lay out potential pathways for advancing towards national or regional hate crime laws.
The report is available via Human Dignity Trust here.