Hate and Restorative Justice
In the UK, 10-17 October 2015 was National Hate Crime Awareness Week. This initiative was set up in the hope that society, politicians, practices and policies become better equiped to deal with the attitudes that lead to what we have now come to call "hate crimes".
Whether national or international awareness weeks make any difference is debatable. I suppose "every little counts" especially when people are given the opportunity to come together to discuss what unites them (rather than what divides them). That is why I have always had an interest in the power that the restorative justice dialogue might have in bringing down the stereotypes and fears that lead to hate incidents. This is also why I am taking the opportunity to write another blog and also disseminate some free peer reviewed resources on hate crime and restorative justice:
Gavrielides, T. (2015), “Conceptualising and Contextualising Restorative Justice for Hate Crime”, in DeKeseredy, W. and Leonard, L. (Eds). CRIMSOC Report 4: Gender, Victimology & Restorative Justice, “pp. 197-230, ISBN. 978-1512255898
Gavrielides, T. (2010) “Restoring relationships: hate crime and restorative justice” in European best practices of restorative justice in the criminal procedures: Budapest conference 2009, European Union: Hungary.
Many criminal justice professionals pretend that they know enough about hate crimes. The truth is that bias-motivated violence (“hate crime”), despite of being with us since the first human aggregations (see Michalowski, 1985), it is a relative new area of criminological and legislative interest (see Levin & McDevitt, 1993). Hence, there are still many gaps for academia, policy and practice (see Iganski, 2008; Chakraborti, 2010).
Hate crime is generally defined as any criminal offence committed against a person or property that is motivated by an offender's hatred of someone because of their: race, colour, age, ethnic origin, nationality or national origins, religion, gender identity, sexual orientation, or disability (Sibbitt, 1997). However, in criminal law and in most jurisdictions there is no criminal offence of hate crime per se. Hate crime is a legal category, which describes bias-motivated violence. There are a number of specific offences (i.e., assault, injury, murder) where, if the prosecution is able to prove an element of racial/ faith/ homophobic/ disablism/ transphobic/ ageist/ nationalistic/ gender-based aggravation, the accused is liable to receive a higher sentence, if found guilty. Arguably, this is a progressive legal understanding, as many legal jurisdictions do not extend it to equality strands other than race, religion and sexual orientation (see Gavrielides, 2007; 2010). For instance, in the UK all the aforementioned grounds are acceptable as aggravating factors. Similarly, the law in Canada understands hate crime “When there is evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, . . . shall be deemed to be aggravating circumstances” (see section 718.2. of Criminal Code 1996). In the US, federal prosecution is possible for bias-motivated violence on the basis of a person's race, religion, or nation origin. In 2009, the Matthew Shepard Act added perceived gender, gender identity, sexual orientation, and disability. In most European countries, only the grounds of race, religion, sexual orientation and nationality are accepted as aggravating factors (e.g., see Ireland, Italy, Greece, France, Finland). To sum up, hate crime law is generally developed to enhance the penalties associated with conduct that is already criminal under other laws. This causes a number of legal and practical challenges.
This gap in legislation and also the fact that I've always believed in dialogue-based approaches, led me to conduct research on restorative justice and hate crime. This is when I realised that despite the volumes of restorative justice literature, hate crime remains a grey area of practice. This is mainly due to fears among policy makers, politicians and certain groups within society that the relationship between hate crime offenders and victims is dominated by an irreconcilable power imbalance (Yantzi, 1998; Penell & Francis, 2005; Walters & Hoyle, 2010). For this reason, some feminists and victim advocates dismiss RJ altogether as they believe it can re-victimise vulnerable groups (Stubbs, 2002; Acorn, 2004; Hopkins & Koss, 2005).
Some others claimed that perpetrators of hate crime fall within a special category of criminological interest, where criminal behaviour is examined as a phenomenon that is attributed to deep-rooted causes that can only be dealt with through the strictest laws (McDevitt et al, 2002). Racist perpetrators, for instance, might not be easily susceptible to rehabilitative and community-based approaches, while victims may be exposed to further victimisation if brought in contact with them – irrespective of how remorseful the perpetrator may seem to be.
This area of RJ practice also remains under-researched (Hopkins et al, 2004; Walters & Hoyle, 2010; Gavrielides, 2010). Therefore, both advocates and opponents of RJ have called for further investigation (Yantzi, 1998; Stubbs, 2002; Penell & Francis, 2005; Gavrielides, 2007). Based on the premise that the RJ rhetoric should be on the development of RJ’s processes and principles and not on the superiority of its paradigm, I am writing this blog in the hope of taking the debate on RJ with hate crime cases forward.
And here is where I believe restorative justice can make a huge difference for hate incidents. It is known that while most hate crimes involve relatively minor offences (e.g., graffiti, egg throwing, name-calling, intimidation and vandalism), their impact can be much greater and long lasting depending on how the victim and the community perceives them (Mason-Bish, 2010). These nuances are not always captured by legal definitions of hate crimes, which tend to be dominant in criminal justice policy and practice (Chakraborti, 2010). Nevertheless, this did not hinder practitioners within the criminal justice system (e.g. probation officers) and in the community from piloting conferences, mediation and other RJ programmes most of the times without any government support (e.g., see Select Committee, 2006; Gavrielides, 2007; 2010; Chakraborti, 2010). Restorative justice has the ability to find its way whether funding legislation or any type of support are existent or not.
Hence, when I carried out my research in the field I asked hate crime victims, offenders and practitioners: What role does RJ have in this debate particularly for hate crimes that are lower on the spectrum and not under the legal definition of “hate crime”? How is RJ conceptualised within the hate crime context? Their reactions showed that these questions were timely for international policy. From the 1990s and especially after the 2001, September 11th tragic events, hate crimes have become a significant area of concern for public policy internationally. In the search for practices and policies that could bring balance to inter-personal tensions, and address integration issues, RJ principles and practices appear appealing.
I also came to understand that legislation alone cannot do the trick!
In fact, in order to win the battle against hate crime and its consequences, there must be a breakdown of the stereotypes, attitudes and worldviews that foster it in the first place. As my research taught me, this battle is being fought on a daily basis not only by criminal justice agencies, but also within schools, places of worship, families, person-to-person relationships and community based organisations.
It is also fought by restorative justice practitioners. As argued by the above papers, existing RJ practices are diverse and tend to cover from minor, one-to-one hate incidents to more complex inter-community conflicts. RJ seems to offer one form of dialogue that may help break down the fears, stereotypes and causes of hate crime. It has particular appeal with cases at the lower spectrum of hate crime which could eventually lead to serious and complex hate incidents, while imposing serious consequences and trauma for the victim and the community.Right from the outset, I accepted that my aim is not to prove or disprove the superiority of the RJ paradigm in dealing with hate crimes. On the contrary, my research objective has always been to drill down into the concepts of RJ and hate crime as they have appeared together in both literature and practice. The ultimate objective is to provide the literature with additional qualitative information that may prove useful for understanding RJ for hate crime, and indeed encourage further research, evaluation, policy and practice in this under-researched area. If you feel you can join this effort or have anything to say about the views expressed in this blog, feel free to drop me a line and let the dialogue begin!