The Nizkor Project: Remembering the Holocaust (Shoah)

Hate-Motivated Violence

Who Should Be Protected?

79. A. Montagu, Man's Most Dangerous Myth: The Fallacy of Race, 4th ed. (Cleveland, Ohio: World Publishing Co., 1964), p. 23. He adds, on p. 24, that the myth of race refers not to the fact that physically distinguishable populations of man exist, but the belief that physical and mental traits are linked, and that the physical differences are associated with differences in mental capacities.

80. Ibid, pp. 24-28. See, as well, A. Montagu, Statement on Race: An Anrnotated Elaboration and Exposition of the Four Statements on Race Issued by the United Nations Educational, 3c, and Cultural Organization, 3d ed. (New York: Oxford University Press, 1972), pp. 7-13.

81. D. Goldberg, "The Semantics of Race" (October 1992), 15 Ethnic and Racial Studies, No. 4, pp. 546-553.

82. For example, in King-Ansell v. Police, [1979] 2 N.Z.L.R. 531 (C.A.), the New Zealand Court of Appeal held that the Jews of New Zealand were an "ethnic group" so as to permit prosecution of the leader of the National Socialist Party of New Zealand for intentionally exciting ill-will against them where the statute protected groups identifiable on the basis of "colour, race, or ethnic or national origins". And in England, the courts have held, in civil discrimination suits under the Race Relations Act 1976, that Sikhs and "gipsies" qualify as a protected "ethnic group" under a definition of "racial group" that means a group of persons "defined by reference to colour, race, nationality or ethnic or national origins". See Mandla v. Dowell Lee, [1983] 1 All. E.R. 1062 (H.L.); Commission for Racial Equality v. Dutton, [1989] 1 All. E. R. 306 (C.A., Civil Division). In all these cases, the courts refused to interpret the term "ethnic group" in a manner pertaining to a narrow biological definition of "race".

83. These crimes are (a) advocating or promoting genocide (b) inciting hatred in a public place where such incitement is likely to lead to a breach of the peace and (c) wilfully promoting hatred, other than by private communication, against an "identifiable group".

84. Anti-Defamation League of B'nai Brith, ADL Law Report, Hate Crimes Statutes: A 1991 Status Report (New York: Anti- Defamation League, 1992), p. 4.

85. According to Appendix B of the above report, ibid., pp. 22-23, 28 states as of 1991 included "race", "religion" and "ethnicity" as factors in defining motivation for their bias intimidation crimes; 13 states included "sexual orientation" as a factor in defining motivation; ten states included "gender" as a factor in defining motivation; eight states included "mental or physical disability or handicap" as a factor in defining motivation; two states included "age" as a factor in defining motivation; and three states included "political affiliation" as a factor in defining motivation.

86. See, e.g., S. Gellman, "Sticks and Stones Can Put You in Jail, But Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws" (1991) 39 UCLA L. Rev., p. 333.

87. See, e.g., P. Finn, "Bias Crime: Difficult to-Define, Difficult to Prosecute" (Summer, 1988) 3 Criminal Justice, No. 2, p. 19.

88. See, e.g., P. Gerstenfeld, "Smile When you Call me That!: The Problem With Punishing Hate Motivated Behaviour" (1992) 10 Behavioral Sciences and the Law, p. 259.

89. See, e.g., G. L. Padgett, "Racially-Motivated Violence and Intimidation: Inadequate State Enforcement and Federal Civil Rights Remedies" (1984) 75 J. Crim. L. & Criminology, No. 1, p. 103.

90. Law Reform Commission of Canada, Hate Propaganda [Working Paper 60] (Ottawa: Law Reform Commission of Canada, 1986) pp. 31-33, rec. I at 40; Law Reform Commission of Canada, Recodifying Criminal Law (Revised and Enlarged Edition of Report 30) [Report 31] (Ottawa: Law Reform Commission of Canada, 1987) s. 1(2) p. 11. As well, the Commission, in its Hate Propaganda Working Paper, welcomed public feedback on the issue of whether or not to expand the definition to include the concept of "sexual orientation", while acknowledging that there was justification to include that concept on the basis that homosexuals had been victims of violence in the past. However, in its final proposals on the definition of the crimes of hate propaganda in Report 31, p. I 1, "sexual orientation" was not included as a factor in defining the term "identifiable". Hate and Hate to Violence" (Spring, 1991) 18 Human Rights, No. 1, p. 22.

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