THIS WEEK WILL see the Hate Offences Bill debated in the Seanad, having been passed by an overwhelming 110-14 margin in the Dáil in what was a rare outbreak of cross-party unity for a crucially important and long-called-for piece of legislation.
The Bill, when enacted, will finally bring to an end Ireland’s ‘outlier’ status as one of the very few countries in the western world without any hate crime law. Regarding the separate but related issue of incitement to hatred also covered in the Bill, it is important to note that Ireland has had legislation in this area since 1989 so it is hardly a new invention or radical departure.
However, both victims and criminal justice practitioners have long regarded the ‘89 Act as hopelessly outdated and largely toothless. It is therefore right and proper that we are updating our approach, especially in the online era, where so much hate proliferates but which current law is entirely silent on.
The legislation is certainly timely in light of recently published official figures revealing a nearly 30% rise in reported hate-motivated attacks for 2022 – an alarming increase which is only the tip-of-the-iceberg as this is a crime that is vastly under-reported. And while criminal law alone will not adequately address the ugly spectre of hate and extremism, it is a vital part of what must be a broader societal response making clear that hate crimes will not be tolerated.
In targeting a person’s inherent identity, the hate crime perpetrator instils fear in the entire community that shares the victim’s protected characteristics. It represents the ultimate ‘signal crime’ and the effects are chilling.
For example, according to the ‘LGBT Hate Crimes in the United States: Findings from the National Crime Victimisation Survey’, LGBT+ victims of hate crime are 12 times more likely to experience acute distress in comparison to being victimised by other crimes.
Yet, in the absence of specific legislation, the hate element in the crime routinely gets filtered out during the judicial process in what ultimately amounts to a failure to vindicate the rights of the victim.
As far back as 2016, our ‘Burning Issues’ survey – a comprehensive piece of research into the views and priorities of the LGBT+ community – revealed hate crime legislation to be the leading policy priority of our community. In the years since, the scourge of hate and abuse has become ever more prolific, facilitated in large part by the ‘wild west’ nature of the online world and more bad actors having since moved into that space.
According to more recent research we published in 2022, 90% of the Irish public agree that hate crime/incitement-to-hatred offences need to be effectively addressed in Irish law. Indeed, many people believe we already have such legislation which is the norm in virtually every other comparable jurisdiction.
Having waited so long for legislation to be enacted, we must now ensure that it is fit for purpose and does not replicate the shortcomings of the aforementioned 1989 Act. To that end, the National LGBT Federation, along with many other civil society voices believe it is essential that we retain what is known as the ‘Demonstration Test’ for both hate crime and incitement to hatred offences.
This approach has been adopted by our nearest neighbours in Britain and Northern Ireland and is crucial to ensuring the law is effective and victim-centred. According to Dr Seamus Taylor of Maynooth University, who previously served as Director of Equality & Diversity at the Public Prosecution Service in London, the absence of such a Test makes it virtually impossible to prosecute this crime as it essentially requires ‘getting into the head’ of the offender.
The All-Party Oireachtas Justice Committee found the ‘Demonstration Test’ case compelling when they recommended its insertion into the Bill in late 2021.
In tandem with our colleagues in the ‘Coalition Against Hate Crime’, we also very much support the need for a public awareness campaign once the Bill is enshrined in law. A National Action Plan is also important, along with comprehensive training for those charged with enforcing the new provisions.
Unfortunately, we have already witnessed attempts to muddy the waters and import the kind of toxic ‘culture war’ tactics that are proving so corrosive in the likes of the US and UK.
Legislators must resist these false narratives and instead focus on what the proposed legislation is about – making sure that Irish law is capable of robustly responding to increasingly disturbing and violent attacks motivated by hatred of a person’s actual or perceived characteristic.
Claims that ‘free speech’ is being eroded under the Bill also do not stand up to scrutiny and conveniently ignore the fact that we have recognised the need to legislate against extreme criminal hate speech for the past 34 years. Far from being anti-democratic, such measures are in fact the hallmark of a civilised society.
The legislation also must be fully Trans inclusive and afford protection to what is a highly vulnerable community.
As Professor Amanda Haynes of the European Centre for the Study of Hate at the University of Limerick stated recently: “These laws seek to protect everyone from crimes committed out of hatred towards protected categories” which means “a definition [of gender] that recognises that offenders target people not only on the basis of hatred for binary gender identities like woman or man but also that they target people for having non-conforming gender identities.”
We hope the Seanad debate this week will stay anchored to the pressing need to finally legislate in this area – a need so clearly acknowledged by the overwhelming cross-party endorsement the Bill received in the Dáil.
This legislation is far too important to be in any way delayed or derailed. Impacted communities have waited too long already.
Adam Long is a Board Director with the National LGBT Federation (NXF) and has a long track-record of working to advance LGBT+ equality. A policy and communications specialist, he has chaired numerous panel discussions and more recently conducted in-depth interviews with the Taoiseach and other leading political figures as part of the PRIDE festivities. Social media: @adamlong80 and @nxfie.
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