Hate crime and prejudice-based behaviours: Definition of a hate crime

Hate crime describes behaviour that is both criminal and rooted in prejudice. This includes behaviour which is intended to stir up hatred against a group of people by reason of them possessing, or appearing to possess, protected characteristics. This includes offences committed in relation to online communications.

In Scotland, the Hate Crime and Public Order (Scotland) Act 2021 (‘The Act’) criminalises behaviour motivated by prejudice towards individuals based on:

Race
Religion or belief
Sexual orientation
Disability
Transgender identity
Age
Variations in sex characteristics

The Act maintained prior legislative protections against offences aggravated by prejudice against disability, race, religion, sexual orientation and transgender identity, and added age.

The Act also provided for new ‘stirring up of hatred’ offences, covering all characteristics protected in the updated legislative framework. This complements existing UK laws on stirring up racial hatred.

Hate crime aggravated offences mean that the law has been broken. The assailant’s actions have been driven by hatred towards a particular group. For example, an individual has assaulted another person and comments made during the assault show that the offence was racially motivated. For stirring up hatred, the conduct criminalised is itself driven by hatred.

Previous legislation

For stirring up of racial hatred to be part of a criminal act, the behaviour must be threatening, abusive or insulting. intended to stir up hatred against a group based on their race, colour or nationality.

Hate Crime and Public Order (Scotland) Act 2021

The 2021 Act created new stirring up of hatred offences for each of the following characteristics: Disability, Religion, Sexual orientation, Transgender identity, Age, Variations in sex characteristics. For this to be an offence the behaviour has to be threatening or abusive (not insulting) and the person doing it intends to stir up hatred against any of the groups above. These new offences have a higher threshold for a crime to be committed than the long-standing offence of stirring up racial hatred, which has been in place since 1986.

Updated the definitions

For racial hatred, it stays the same as before. There is a defence to all offences of stirring up hatred where a person can show the behaviour or communication of material was reasonable.

The Act updated the definition of transgender identity by removing the term ‘intersexuality’ given the differences between intersex and transgender identities. For this group of people, the Act includes ‘variations in sex characteristics’ as a standalone characteristic.

For awareness: Intersex is a term that has traditionally been used to describe individuals whose biological sex characteristics (such as chromosomes, hormone levels, or genitalia) do not fit typical definitions of male or female. It is more commonly used in medical or social discussions to describe people who have physical sex characteristics that do not align with conventional binary gender norms.

Variations in sex characteristics is a more inclusive and precise term used in legal and human rights contexts. It encompasses a broader range of physical differences, including intersex traits, and is considered a more neutral and respectful way of describing individuals who do not fit typical male or female biological norms.

For more information on the changes to the Hate Crime legislation read:

Hate Crime and Public Order (Scotland) Act: factsheet - gov.scot (www.gov.scot)

Hate Crime and Public Order Act Info Sheet for Youth Workers

It should be noted that under The Age of Criminal Responsibility (Scotland) Act 2019, a child under the age of 12 cannot be arrested, charged or prosecuted for a crime.

What hate crime can look like

Hate crime has a hugely damaging and corrosive impact on victims, their families and communities.

When discussing what hate crime looks like, it is important to remember it includes criminal activity as well as prejudice based on identity characteristics, which can have long lasting impacts on individuals.

If you are facilitating this session with others, please be mindful of the potential experiences of participants that you may not be aware of. Taking a trauma informed approach to this work is crucial.

Hate crimes can be verbal or physical and can include the following offences (if motivated by prejudice or intended to stir up hatred):

· threatening behaviour

· verbal abuse or insults including name-calling

· assaults

· robbery

· damage to property

· encouraging others to commit hate crimes

· harassment

· online abuse on sites like Facebook or Twitter

The impact on those on the receiving end of such behaviour, whether physical, verbal, or online attacks, can be traumatic and life changing.

Misogyny and hate crime

The Working Group on Misogyny and the Criminal Law recommended the creation of 'gendered' laws which specifically provide protection to women and girls.

Education settings should also refer to the Scottish Government’s guidance on Preventing and Responding to Gender Based Violence: A Whole School Framework (www.gov.scot)