Hate Crime: sentencing of offences aggravated by prejudice
A private member's bill has been proposed to legislate against homophobic, transphobic, or disability-related hate crime as proposed by the Hate Crime Working Group in October 2004.

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Legislating against hate crime

A draft proposal for a Sentencing of Offences Aggravated by Prejudice (Scotland) Bill was lodged on 2nd October 2007 by Patrick Harvie MSP. The proposal is for a bill "to require the aggravation of an offence by prejudice on grounds of disability, sexual orientation or transgender identity to be taken into account in sentencing."

The bill has passed scrutiny by the Equal Opportunities Committee, and received 45 signatures before the December recess. The bill can now move on to the next stage, consideration by Parliamentary Committee. The Liberal Democrats support the bill. The Scottish Government have not yet said whether they will support the bill: Government support will greatly increase the chances of the bill becoming law.

The Parliamentary Committeee will most likely invite comments on the bill at end of February 2008. We will let you know how to respond.

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The bill is about the sentencing of existing criminal offences. It does not introduce any new criminal offences. The bill deals with criminal offences where the offender is motivated by malice and ill-will against the victim, because of the victim's:

• actual or presumed disability
• actual or presumed sexual orientation
• actual or presumed transgender identity
• or because of the victim's association with disabled or lesbian, gay, bisexual or transgender (LGBT) people.

The bill covers sentencing for hate crimes committed against disabled and LGBT people, and hate crimes committed against people who are wrongly assumed to be disabled or LGBT.

For example, someone attacked in or near a gay venue, because they are wrongly assumed to be gay: someone attacked because they appear to the attacker to be transgendered, even if they are not: someone attacked because they are carrying a red and white cane and are wrongly assumed to be blind.

The bill also deals with hate crime against people because they associate with disabled or LGBT people.

If this bill becomes law

When someone is convicted of a crime, and if the motivation of malice and ill-will is proved in court against them, then the court must take the motivation into account in setting the sentence.

Sentencing rules of this kind are already in place in Scotland for offences motivated by malice and ill-will on grounds of race and religion. Research shows that crimes based on malice and ill-will on grounds of disability, sexual orientation and transgender identity are the other prevalent forms of hate crime.

In England, the law on sentencing of hate crime already covers disability and sexual orientation.

The need for this legislation

A 2002 survey of LGBT people across Scotland (carried out by Beyond Barriers) found that nearly a quarter had been subjected to physical assault and over two-thirds to verbal abuse because they were LGBT (one third had experienced this within the previous year). This evidence followed surveys in 1999 and 2000 of lesbians and gay men in Edinburgh and Glasgow with similar results.

Half of the people questioned in a 2004 survey (carried out by Capability Scotland and the Disability Rights Commission) said they had been the target of a hate motivated crime. Michelle Hegarty, of Capability Scotland, said: "This research has revealed the ugly silent hatred which many people face as part of their everyday lives. This is the kind of hatred which scares and humiliates people and can greatly impact on your life – even to the extent of having to change job or home. Perhaps the most telling thing from this research is that most people are not confident that they can get help to stop the attacks and that's why we strongly call for new legislation and better support to prevent these types of hate crime."

If you have experienced name-calling, harassment, bullying, or physical abuse, we'd like to be able to back up the plain statistics with the human stories behind the numbers.

Questions and answers

Q: Isn’t it wrong to make something illegal only because the victim is disabled, gay or transgender?

The bill doesn’t make anything illegal. It applies only to the way that existing crimes are sentenced, making sure that if the crime is motivated by hate, the judge knows about that when setting the sentence. The judge then chooses the appropriate sentence.


Q: An assault or other crime is just as bad whoever the victim is – why should some crimes be dealt with differently?

Research shows that some groups of people are more likely to be victims of certain kinds of crime, motivated by prejudice against those people. The evidence shows a significantly increased rate of crime based on prejudice on grounds of race, religion, disability and sexual orientation. Other people can fall victim to these hate crimes too, for example if their religion or sexual orientation is wrongly identified by an attacker, or if they are just in the wrong place at the wrong time (for example out with gay or transgender friends).

Research also shows that crimes which target someone based on hatred of a core part of their identity (their race, sexual orientation etc) can have a particularly bad psychological effect on the victim and on their life afterwards. The high rate of hate crime also undermines attempts to make Scotland a tolerant country in which we all get along in mutual respect.

It is common for the law to handle particular problem crimes in specific ways – the domestic abuse court in Glasgow is one example. This bill addresses the particular problem of hate crime.


Q: Why should the sentence be heavier for a hate crime?

The bill doesn’t say that the sentence should be heavier – it says the court must take the hate motivation into account in setting the sentence. It’s up to the judge to decide what is appropriate. In some cases a heavier sentence may be appropriate to reflect the effect on society of a hate crime, or the fact that the offender is a repeat hate crime offender, for example. In many cases, an appropriate community sentence should be chosen which will aim to address the reasons for the offender’s prejudiced attitudes, to reduce hostility and the chance of reoffending.


Q: Why should the sentence be different for a crime just because the victim is gay, transgender or disabled? Isn’t that making disabled people and gay and transgender people into specially protected groups?

The bill is not about the identity of the victim – it’s about the reason the offender committed the crime. Anyone can become a victim of a hate crime, for example a person can be victim of a homophobic or transphobic hate crime just because they are in the wrong place at the wrong time, or are mistakenly thought to be gay or transgender.


Q: Why should the motivation of the offender make a difference to the sentence – isn’t that making certain kinds of thought into a crime?

The bill only applies where a crime has been committed, for example assault or vandalism. Holding prejudiced views is not illegal and this bill certainly does not change that – people are entitled to hold and to express their views.

The bill applies where prejudice turns into actual crime. After a person has been found guilty of a crime, the judge already takes a wide range of factors into account in choosing an appropriate sentence. These include the evidence about the effects of the crime, and about the motives and background of the offender. The bill ensures that if the crime is a hate crime, that is taken into account in sentencing also.


Q: Can’t the courts already take a hate motive on any grounds into account in sentencing an offender, under the common law of Scotland?

In theory this might be possible, but it simply has not been happening for disability-related, homophobic and transphobic hate crime. The police, prosecutors and courts only started dealing consistently and more appropriately with racist and religious hate crimes when sentencing legislation similar to this bill recognised the existence of those crimes and gave them a specific tool to do that. This bill will introduce the same consistent handling for other hate crimes. It will also enable proper recording of these hate crimes through the justice system, and of convictions.