Hate crime laws can focus on actions, not motivation, as the burden of proof

A ‘demonstration test’ to help prove new hate crime offenses should be introduced as part of the planned laws, the Oireachtas justice committee has recommended.

This test would focus on the defendant’s “actions” to support a hate crime prosecution, he said, rather than establishing their “motivation”, which is harder to prove.

The report of the committee’s review of the original hate crimes bill said a “demonstration test” would strengthen the new laws and improve the prospects for prosecution.

Witnesses explained to the committee that such a test may involve the use of insults, gestures, other symbols or hostile or prejudicial graffiti at the time of the offence.

Seamus Taylor, head of the Department of Applied Social Studies at Maynooth University, told the committee the tests make motivation “real” because they give the courts a standard by which to judge.

The report says he and Cork-based migrant group Nasc argued that having to prove the defendant’s motivation beyond a reasonable doubt was “too high” and would lead to weak prosecution levels.

“They cautioned that relying solely on the motivational test amounts to ‘entering the mind of the abuser’ rather than proving demonstrated hostility,” the report said.

Criminal Justice (Hate Crimes) Bill

While some other witnesses were not in favor of the “demonstration test” model, the committee sided with it and recommended to the government that the test be included in the 2021 general criminal justice system (hate crimes).

Announcing the new bill a year ago, Justice Minister Helen McEntee said the new offenses would mean a crime, such as assault, can be investigated as a felony of potential hate and that proof of the hate element could be presented in court.

She said that when a jury finds the crime was a hate crime and convicts the person, an increased sentence for the new offense is available to the judge at sentencing.

The committee’s report also recommended changes to provisions regarding comments made during political speech and a defense of statements made in the House of Oireachtas.

“Witnesses were concerned that this defense could be seen as a loophole and used in the context of election campaigns, where racist or inflammatory speech could be used against migrants or those from minority communities,” the report said.

He said Martin Collins, co-director of Pavee Point Traveler and the Roma Centre, told the committee that it was often during the election campaign that racist or hate speech was launched against traveling and Roma communities.

“Witnesses have warned of the chief [of the Bill] proceed as currently worded because of the latitude in these defenses which could give someone the ability to pretend they are simply speaking in a political context and use these defenses as a protection or exemption to use language that is clearly restive in nature,” the report said.

He said these broad defenses would “significantly undermine” the possibility of securing a conviction for incitement to hatred.

The committee recommended the inclusion of the word “contempt” in the definition of hate, to combat hate crimes against people with disabilities.

He also recommended hate crime and hate speech training for all relevant professionals.

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