In the aftermath of September 11, 2001, hate crimes rose sharply in the United States, with a rash of violence against Arabs, Muslims, and South Asians. Attacks on Muslims rose from 28 in 2000 to 481 in 2001, according to official statistics, and continued at a high rate in 2002. Others, including Sikhs, were attacked, and murdered, because they were mistaken for Muslims.

The terms “hate crime” or “bias crime” refer to crimes motivated in whole or in part by bias (or hatred) on the grounds of the victim’s identity. The concept crystallized in law in the United States in the course of the long struggle for civil rights. People were attacked solely because of the color their skin, their religion, or because they stood with those who were persecuted. It gradually became clear new legal instruments could help to stop these crimes.

The principle invoked was that an attack on an individual because of his or identity was an ongoing threat to everyone within that community, and so a greater threat to the whole society. The crime was thus more serious than a common assault, an individual murder, an ordinary case of arson. There was an underlying concern: that a framework of criminal law that addressed these blatant acts as particularly serious crimes was required to respond to local authorities’ complicity in discrimination. Civil remedies were also a part of the framework but were ineffective in a climate of corruption and violence.
In upholding the first test of a U.S. state hate crimes law, the late Chief Justice William Rehnquist cited Justice William Blackstone, the 18th century English jurist, in affirming the provision of the State of Wisconsin’s statute that singled out bias-inspired conduct for penalty enhancement “because this conduct is thought to inflict greater individual and societal harm.” Blackstone had written two centuries before that “It is but reasonable that among crimes of different natures those should be most severely punished, which are the most destructive of the public safety and happiness.”

The hate crime concept is particularly important when persistent violence accompanies - and aggravates or enforces - other forms of discrimination against vulnerable groups. Members of a minority who fear violent attacks or murder should they dare to move freely in towns and cities, or outside their own village, or ghetto, are by and large unable to exercise their civil and political rights, much less to fully realize their economic, social, and cultural rights.

At the same time, the hate crime concept may not be particularly useful when state agents are inextricably involved, in concert with powerful elites, in the exercise of violence against vulnerable minorities. Attacks on members of gay or transgender minorities in urban centers, may be classic hate crimes by private citizens, but such attacks may coincide with violence underwritten or carried out by some level of government.

The divide between a hate crime motivated by bias and extrajudicial execution is often difficult to discern. Since the mid-1980s the term “social cleansing”—limpieza social—has become common currency in a number of American states for the systematic murder of people considered to be at the margin of society: street children, supposed petty thieves, and in some cases, gay men and transvestites. There is discrimination in this pattern of murder and intimidation, but the element of direct responsibility or complicity by state agents takes this beyond the simple framework of hate crimes. The one phenomenon, however, cannot be addressed without the other.
Similarly, the waves of kidnappings and murders of young women in Mexico’s maquiladora zones along its northern border with the United States, and in Guatemala, go beyond the concept of hate crimes, although clearly involving gender-based violence. The failure of the state in both cases to address gender-based violence is part of the larger framework of the fight against discrimination.

The concept of hate crime or bias crime finds reflection in criminal law in different ways, generally through penalty enhancement for ordinary crimes in which a discriminatory intent was an important element, though not the sole motive of the crime. In some systems of criminal justice, distinct crimes such as “racist murder” have been defined, in accord with the principle that an already serious crime becomes more serious and merits an increased penalty when it poses a greater threat to the community. In others, criminal statutes have been enacted to address particular forms of hate crime: for example, a rash of attacks on churches in the United State’s black community led directly to the Church Arson Prevention Act of 1996.

In addition to the normative standards established by statute where bias crimes are subject to enhanced penalties, or where particular bias crimes are defined as distinct crimes, frameworks to distinguish elements of bias are also established in sentencing guidelines. Detailed analytical guidance is also provided in statutory and regulatory standards such as the United States’ Hate Crimes Statistics Act of 1990, and the Federal Bureau of Investigation’s Hate Crime Data Collection Guidelines (similar guidelines also exist in Canada and some E.U. countries).

Improved data collection has frequently been described as a first step toward the identification and remedy of discrimination in public policy as well as in the private sector. Human Rights First has found systems of monitoring and the availability of disaggregated data an essential measure of the gap between the principles of equality that are common to most modern nations and the reality of everyday discrimination that afflict most societies.

There can be no meaningful statistical information on patterns of hate crimes without detailed incident reports that register elements of bias. But few national criminal justice systems or official anti-discrimination bodies compile detailed and accurate statistical information that differentiates between attacks on distinct minorities or other vulnerable groups.

The monitoring of bias incidents and criminal complaints can show the process through which the police, prosecutors, and the courts respond to complaints made by members of vulnerable groups. By showing both the nature and levels of such complaints, and potential disparities in the official response, policy makers are provided the information they need to amend public policy while advocates have the data they need to press for change.

The posture of the state toward racist or other discriminatory violence against a particular group can be put in the spotlight by disaggregated data on the full spectrum of violent crime – showing in some situations that police condone or encourage private violence against minorities (or, powerless majorities). In such situations, private violence will often go hand in hand with discriminatory state action, including action by local authorities that may act in defiance of national policies but with effective autonomy.

Impunity for attacks on a particular minority, in turn, can be a factor in the generation of further such violence. Data accurately reflecting the reality of discriminatory violence, by public officials or others, provide crucial benchmarks by which to independently assess the need for remedial action.

There are some useful models. The Federal Bureau of Investigation’s annual Uniform Crime Reporting (UCR) system, based on data from over 17,000 local police jurisdictions, includes detailed statistics on hate crimes in the United States that, if not comprehensive, give an important picture of patterns of discriminatory violence. The FBI’s 2003 report, for example, documents 7,889 bias-motivated incidents, involving 9,100 victims. In a breakdown by motives, 51 percent are described as motivated by racism (with over 60 percent described as “anti-black” bias); 13.7 percent as bias based on ethnicity or national origin (a category used to describe bias toward those who self-identify as Hispanic in origin); 17.9 percent by religious intolerance (a category that includes anti-Jewish and anti-Muslim attacks); and 17.9 percent are the result of a sexual orientation bias. Of a total of fourteen reported murders, six were reportedly motivated by sexual orientation bias.

In addition to systems in some E.U. states, similar data is available from some Canadian provinces and cities, and a program is now in place to create a national system of monitoring and statistical reporting in Canada in the course of the next five years. Most governments, however, publish little official information on racist and other discriminatory violence, while monitoring and reporting norms vary significantly from country to country or even from city to city. Official information concerning individual attacks on members of particular minorities—or vulnerable majorities—is often inadequate, or entirely absent.

Discrimination by private individuals often parallels discriminatory policies and practices by state agents and institutions. In many cases the organizations of vulnerable minorities that are fighting for their rights place only a secondary emphasis on seeking remedies to private abuses, because the state itself is the primary threat.

Human Rights First’s conversations with some community based organizations in Europe about hate crimes, for example, received the response that yes, of course, they occurred, but the primary concern was racist violence by the security forces. Their first concern was monitoring and reporting on direct discrimination by public authorities. To seek the assistance of the police was not a priority because the police themselves were the agents of violence based on ethnicity or other personal attributes.

A second remarkable finding was that many vulnerable minorities find that a major obstacle to overcoming discrimination was their practical—or official—invisibility as minorities. A combination of geographical isolation combined with relative political and economic insignificance, in particular when involving proportionally small and powerless population groups, encourages indifference to longstanding patterns of discrimination, including violence.

An important contribution of the process leading up to the Durban World Conference Against Racism, Xenophobia, and Related Intolerance in the Americas and Asia was the mobilization of national and regional nongovernmental organizations representing some of the “invisible” communities that face systemic discrimination in these regions.

The presence of representatives of organizations concerned with the human rights of Central and South America’s Afro-American communities, from Uruguay to Costa Rica, Honduras, and Mexico, was an important step toward putting the issues of these communities on the human rights map. Similarly, the Durban process gave a new voice to the organizations of indigenous peoples that have long advocated for rights in the region.

In some parts of the Americas, the majority-minority distinction is itself inadequate when speaking of vulnerable groups facing discrimination. Members of majorities may in fact have the characteristics of vulnerable minorities in their relations with social, economic, and political elites. They are of different ethnic origins, speak different languages, and have vastly different access to national institutions and economic opportunity— notwithstanding the egalitarian language of constitutional law. Racism is an important factor in this relationship of the powerful and those without power, a factor underlying and reinforcing barriers of social class. Members of these vulnerable groups are not minorities and they are not “invisible,” but they have enormous difficulty in proving discrimination in their own societies.

If governments themselves refuse to recognize the existence of a particular group that may face discrimination, measurement of discrimination is blocked and remedy delayed. The recent outbreak of violent protests across much of France provides a good example. The protests involve minorities that by law cannot be distinguished as a group susceptible to discrimination relative to the treatment accorded other French citizens—all are technically indistinguishable in accord with the principal of egalité. In the Human Rights First report published earlier this year, entitled Everyday Fears, we highlighted this flaw in French policy, noting that there was no statistical record of hate crimes against citizens of Sub-Saharan African origin, Roma, and most other minorities. We observed that the same principle made it impossible to document and respond to police practices of racial profiling; and that the principle of egalité could well serve to cloak a policy of discrimination.
The official French policy is that to measure discrimination against particular groups would involve distinguishing between citizens in a way that would itself be discriminatory. This notwithstanding, the mostly young people who are protesting claim to face daily racial profiling by police, employment discrimination, and marginalization or exclusion. These young people speak like other French teenagers, listen to the same music, and have French nationality, but they look like Algerians or Sub-Saharan Africans: and in practice, are referred to even by public officials as “immigrants.” At least one French minister has now broken ranks and called for a revision of the long-standing policy to block efforts to measure discrimination against minorities in France. It is to be hoped that change is on the way.

Unfortunately, information on hate crimes, like information on other forms of discrimination, is often available only from nongovernmental organizations. Often only nongovernmental organizations representing the vulnerable community itself monitor discrimination at the local level and advocate for change, although new networks and links with the broader human rights community are emerging. The information local and international nongovernmental sources can provide, moreover, will frequently serve to highlight the information deficit on the official side.

Information from nongovernmental sources, on individual cases and on patterns of abuse, can show patterns of government indifference and systemic failure to provide equal protection. It can also disclose practices such as racial profiling that involve discriminatory intent. As governments work to develop official data to measure discrimination in the public and private sectors, in accordance with their international treaty obligations, they should take into account the information available from these nongovernmental sources in their policy making.

Autonomous national bodies can also provide leadership and oversight and an independent check on government measures to respond to discrimination. A principal recommendation made by Human Rights First in its work with the Organization for Security and Cooperation in Europe (OSCE), building on recommendations of the European Union and Council of Europe, was that official anti-discrimination bodies be established with the power to initiate investigations and make findings public, to have access to official information, and to act on behalf of victims of discrimination.

In our work on hate crimes, we have focused on the importance of monitoring and data collection as a means to advance the anti-discrimination agenda. The same building blocks of monitoring, reporting, and statistical testing can apply to other manifestations of discrimination, from access to housing or education, to equal employment opportunities. In the areas of criminal justice and civil law, the same models of data collection and analysis can provide essential tools to show the reality of access to justice by minorities or other groups that face discrimination in society.