The category of “hate crime” is now widely recognized, both legally and in the culture at large. To many activists fighting racism and homophobia, this recognition is welcome; but what value does it have for feminists dealing with violence against women and children? Is “hate crime” a useful concept, or is it ultimately divisive and unhelpful? Liz Kelly weighs up the arguments.
These reflections are prompted by my involvement in an EU study  which considered whether it was feasible to harmonise European national legislation on violence against women (VAW), violence against children (VAC) and sexual orientation violence (SOV). Since I was responsible for the section on SOV, I had to engage with the now-common framing of it as a “hate crime”. This is a concept I have had misgivings about for some time , and my unease was reinforced by my experience of working on the EU study.
Before I elaborate, I should make clear that I am not denying the existence of misogyny—woman-hating—or more generally of crimes motivated by hate. That both are real was underlined for me in summer 2010, when I spent some time with a close friend who had just attended the first gay pride march in Split, Croatia. 200 marchers were confronted by thousands of men chanting “kill, kill” and “you should all be dead”. Rather, what I want to argue is that there are problems with “hate crime” as an overarching concept. Neither hate nor misogyny provides an adequate explanation or theoretical framework for understanding all violence against women, especially when we examine the intersections with race/ethnicity, age, disability and sexuality. And the evidence suggests that while categorizing them as “hate crimes” has increased the recognition given to certain types of crimes, it has not delivered much in terms of justice and redress.
Problems of definition
The adoption of the category “hate crime”, and what is included in or excluded from the category, is deeply political and always partial. There is no doubt that categorizing homophobic violence, and to a lesser extent (in some jurisdictions) certain forms of racialised violence as hate crimes has contributed to the widespread recognition of these as real and serious problems. But despite many efforts, VAW has never been formally included in most definitions of hate crime. Revealingly, in one early debate in the US, VAW was explicitly excluded from draft legislation because “there was too much of it”. If we look to Europe, especially Eastern Europe, hate/bias crimes are primarily framed with respect to race/ethnicity, and often exclude sexual, let alone gender, orientation. It has become common in Europe for hate crime to be linked with “extremism”, and the framing of the concept in the UK is increasingly moving in the same direction.
That the concept has global traction can be seen in the emergence of the Journal of Hate Studies in 2000, with a mission to explore “the increasing legal and cultural regulation of violence directed towards minorities” . However, this formulation points to an obvious problem with applying the framework to VAW. As Angela Davis said so powerfully more than two decades ago, women are not a minority. Globally, women of colour are a majority of a majority.
The idea that hate-crime is “violence directed towards minorities” has obvious connections to identity politics. This is not without its own problems. Joanna Perry  has asked, for instance, what it might mean to people with learning difficulties to be told they were abused because the perpetrator hated them. Similarly, at a conference where I spoke on this topic in 2011, several women raised the issue of what the designation “hate crime” might mean to girls and young women whose parents were part of practising FGM or early/forced marriage – there was a strong suspicion that it would produce a further barrier to help-seeking. Moreover, designating these practices “hate crimes” takes us in unhelpful directions in our endeavours to make sense of traditional practices – both why they persist and why some individuals and families choose to abandon them.
Problems of (in)justice
The concept of “hate crime” has been the subject of intense academic  and political debates, with some welcoming and others contesting the legal recognition it implies for power differences between social groups (or in the less overtly political terminology which has now become common, the “vulnerability” of certain groups). But while the ideas may have acquired what one commentator calls “powerful rhetorical focus for mobilization of victim and identity politics” , they have not necessarily made it easier to deliver justice.
In Germany, for instance, Alke Glet points out that although the concept of hate crime is now embedded in criminal justice policy, actually treating something as a hate crime requires evidence on three levels, including evidence of political motivation. She argues that in practice this requirement excludes “a large number of bias-led or prejudiced crimes [that] probably occur without any overt political motivation” . This raises a core problem – that only a proportion, possibly a minority, of those who perpetrate violence will be recognised as being motivated by hate. This will inevitably create a hierarchy of seriousness, which has been anathema to my feminist perspective.
Hate crime is rarely prohibited as a specific criminal offence. More commonly it is a designation via motive which aggravates existing offences, leading to increased sentencing options. Many of the national experts involved in the EU study noted the complex evidential issues in proving hate crime – as opposed to “hate speech”, where there is usually documentary evidence. A hate crime requires proof not just of the crime itself but an additional “subjective intent” standard—for example, the definition of homophobic hate crime for prosecutors in England and Wales is that it is perceived to be motivated by hate or prejudice. A recent Dutch research project found “little objective evidence of motive” in case files . Consequently the number of successful hate crime prosecutions remains low across the EU, especially for sexuality-based offences.
The most inclusive definition of hate crime comes from the Office of Democratic Institutions and Human Rights (ODIHR) :
any criminal offence, where the victim, premises or other target of the offence are selected because of their real or perceived membership, support, affiliation or connection with a specific group. A group may be based upon a characteristic common to its members, such as race, national or ethnic origin, language, colour, religion, sexual orientation and other factors. 
This makes no reference to hate, or more generally to motivation. The focus is on bias towards members of specific groups, and there is no explicit mention of sex or gender (though one irony in many recent discussions has been the emphasis placed on including violence against transgendered people, despite gender itself being excluded from most definitions).
The policy based definition used by the police and prosecutors in England and Wales is more limited: “any incident, which constitutes a criminal offence, perceived by the victim or any other person, as being motivated by prejudice or hate”. It would be interesting to explore how many women think in these terms when reporting violence, not to mention that many incidents which feminists would argue are VAW are not currently criminal offences – including sexual harassment and much of the coercive control that constitutes domestic violence.
Revealingly, the Home Office explicitly excluded age-related violence from its definition, reasoning that violence to children and elderly people is rarely motivated by hatred. That must surely raise the question: how useful is the “hate” designation across the groups which are included?
Hate versus power
In most of its uses, the term “hate crime” presupposes that perpetrators are motivated by animosity towards the victim, based on separation from, and stereotyping of, the other group. Yet the most likely perpetrators of violence against women, children, the elderly and adults with disabilities are those they live in close proximity to – partners, relatives, friends, carers – all of whom are positioned in relationships of intimacy, trust and/or care. In these contexts violent and abusive practices are frequently normalised, taken for granted forms of social interaction based on perceptions of others as “worth less” and/or undeserving of the same entitlements or rights as the perpetrators.
Not only does “hate” entirely fail to capture these realities, it runs the risk of reducing structural inequalities to individual psychology, thus bypassing the complex intersections between violence, equalities and human rights. Across most of Europe “hate crime” is associated with political extremism, rather than inequalities, and thus directs attention to the attitudes of a small minority, rather than the structures which reproduce power and privilege.
Data from the USA, and more recently from Australia, indicates that much violent crime is connected to real or perceived differences in race, religion, ethnicity or national origin, sexual orientation, disability or gender. The effects of such crimes are felt not only by the individual victim but also by members of the group to which they are perceived to belong. It is the combination of individual targeting and the fact that the victims belong to social groups which are disproportionately victimised which makes these crimes violations of fundamental rights.
Bea Campbell’s concept of “crimes of dominion”  draws attention to the longstanding power relations which underpin these acts, an idea much more in tune with a feminist analysis. Whilst I find this a compelling concept, much preferable to “hate crime”, it does not sit easily within the policy framework of the EU. Our task in the EU study was to find a concept that might.
An alternative to “hate crime”
The research team agreed that hate crime did not work as an overarching concept, and we set out to consider what might work better within the fundamental rights and inequality framework. “Bias” crimes had some traction, but little resonance with existing law and policy. I began to explore the concept of “discriminatory violence” – not as emotive as “hate”, but drawing on a fundamental concept in equality law and within human rights thinking. We presented this concept to a group of international experts, including Yakin Ertuk, who had just retired from two terms as UN Special Rapporteur on VAW. There was widespread consensus that it was both more useful practically and more accurate in describing forms of violence that are disproportionately targeted at members of specific social groups.
In the final report we argued that discrimination and fundamental rights should be the core points of reference for the EU in addressing violence against women, children and LGBT. We suggested that “discriminatory violence” provides an overarching concept which recognises that such violations affect the status and well-being of all group members as well as that of individual victims.
The advantages of this concept for a feminist analysis include:
- It includes violence motivated by hate, alongside those forms which are rooted in notions of superiority, entitlement and indifference. (Neither Dominique Strauss-Kahn nor Julian Assange were motivated by hate in their sexual exploitation of women, rather both acted from a sense of male entitlement and impunity.)
- It can encompass and recognise intersectionality – that some harassment of lesbians is the outcome of the combination of gender and sexuality, that much sexual violence against disabled girls and women is rooted in them being seen and treated as “worth less” than able bodied women and girls.
- It allows us to hold onto the continuum of violence – a framework which recognizes that the extremes are connected to, as Dorothy Smith puts it, the everyday/everynightness of abuse and harassment in women’s lives—and so avoids falling into the trap of focusing only on those abuses which are formally designated as crimes.
- It allows us to continue to point out that impunity and failed sanctions are part of the conducive context which permits VAW to continue.
- In linking directly to the fundamental rights principles which are now part of the EU social chapter it opens up new avenues for protection – such as including protected groups within national constitutions and/or the principles of criminal law.
Whether in public or private, unchecked discriminatory violence places fundamental rights in jeopardy, and supports the contention that VAW is both a cause and consequence of unequal social positions. This in turn places specific responsibilities on states. We must continue to be vigilant – especially in a time of austerity budgeting and resource allocation – in holding our governments to account in respect of their obligations to prosecute and prevent VAW.
Hate crime is not a useful concept if what we seek to understand and change is the intertwining of misogyny, inequalities and violence. It has the potential, especially in terms of criminal justice system practices, to be divisive. But feminists have a wealth of concepts which we ourselves have created. Not only do these more accurately reflect feminist analyses of violence against women, they also show what needs to change if we are to end it.
 European Commission (2010) Feasibility study to assess the possibilities, opportunities and needs to standardise national legislation on violence against women, violence against children and sexual-orientation-based violence. Brussels: European Commission. Daphne Feasibility Study ↩
 Liz Kelly and Miranda Horvath (2007) From the Outset: Why Violence should be a priority for the Commission for Equality and Human Rights, London, EVAW ↩
 Jenness, V (2002) Engendering Hate Crime Policy: Gender, the “Dilemma of Difference,” and the Creation of Legal Subjects Journal of Hate Studies, 2, 73-95. ↩
 Joanna Perry (2008) The “Perils” of an Identity Politics Approach to the Legal Recognition of Harm. Liverpool Law Review, 29, 19-36. ↩
 Jacobs, J & Potter, K (1998) Hate Crimes: Criminal Law And Identity Politics. Oxford and New York: OUP. ↩
Ray, L & Smith, D (2001) Racist Offenders and the Politics of “Hate Crime”, Law and Critique, 12:3, p203. ↩
 Glet, Alke (2009) The German Hate Crime Concept: An Account Of The Classification And Registration Of Bias-Motivated Offences And The Implementation Of The Hate Crime Model Into Germany’s Law Enforcement System, Internet Journal of Criminology. P14 accessed June 28th 2010 ↩
 Chrisje Brants, Renee Kool & Allarde Ringnalda (2008), StrafbareDiscriminatie, Boom JuridischeUitgevers. p. 152. ↩
 A division of the Organisation for Security and Co-operation in Europe (OSCE) ↩
 See www.osce.org/odihr/68668?download=true ↩
 http://www.guardian.co.uk/commentisfree/2007/nov/13/comment.conservatives ↩