The raison d’être of hate-crime laws

Abstract

Hate-crime laws include laws that specifically criminalise unlawful conduct motivated by bias or prejudice towards personal characteristics of the victim and laws that allow for the imposition of harsher penalties on convicted hate-crime offenders. Such laws are often justified on the retributive basis that hate crimes cause greater harms than crimes that are not motivated by bias or prejudice. The imposition of a harsher punishment on the convicted hate-crime offender is therefore justifiable since it is proportional to the harms caused and because it is the offender’s just desert. However this retributive justification for hate-crime laws has been the subject of academic criticism. This article therefore attempts to find an alternative rationale for hate-crime laws by exploring denunciation as another justification for retribution and by considering the utilitarian theory of punishment. The South African context is considered since hate-crime laws do not presently exist in South African law. This article posits that the enactment of a hate-crime law in South Africa could be regarded as a symbolic commitment to equality since hate crimes are said to violate the right to equality.