The prosecution of bias crime in the Netherlands and the problem of net-widening: fundamental limits to criminal liability

Crimes that are committed with bias motives are categorised as ??hate?? or bias crimes and are punished more severely than nonbias crimes. However, bias crime laws are often applied to offences where there is no clear evidence of a bias motive. Based on the results of 318 case studies into bias crime prosecutions in the Netherlands, this paper demonstrates that the causes of net-widening should be sought in the action-oriented nature of criminal law reasoning. Decision makers rely on objective behavioural indicators to infer motives. However, these are rarely reliable. We argue that this process results in a transformation of bias crime laws. They are no longer used to punish harmful motives. Rather, they are used to combat behaviour that is considered socially harmful on account of its perceived intolerant, racist or xenophobic message. This forces us to reconsider the justification behind trying to punish motive.     

Hate crimes and the forensic pathologist

Hate crimes represent crimes committed against an individual or group on the basis of their race, ethnicity, national origin, religion, sexual orientation, gender, gender identity, or disability. For the forensic pathologist, a death related to a hate crime should be considered a high-profile case, one in which the pathologist should expect abundant public interest and scrutiny. In this article, an overview of hate crimes is presented, stressing the different types of hate crimes and the motives of those who commit such crimes. For death investigators and forensic pathologists, an awareness of these details will help them to recognize and appropriately anticipate issues that may be important in deaths related to hate crimes.     

Effects of victims' characteristics on attitudes toward hate crimes

Hate crimes are motivated by perpetrators' prejudice toward targets' group. To examine individuals' attitudes toward hate crime perpetrators and targets, participants responded to vignettes of court cases in which the victim's group membership was varied. Results showed that participants recommended more severe sentences for perpetrators when the targets of their crimes were not White males or White females and reported those crimes as more closely fitting the definition of "hate crime." These results show that participants consider penalty enhancements appropriate for hate crimes and that they do not consider crimes against women to be hate crimes, consistent with present hate crime legislation. These results have implications for the utility and support of hate crime legislation but may showcase the resistance to expanding the legislation to protect individuals of other groups, especially women.     

刑法学中的当然解释

一般来说,当然解释是法条的适用方法,但在刑法中,当然解释应当作为一种解释理由。举重以明轻,是就出罪、处罚轻而言;举轻以明重,是就入罪、处罚重而言。当然解释的依据是事物的本质与法条的旨趣。由于刑法并不禁止有利于被告人的类推解释,故在适用举重以明轻的原理得出有利于被告人的解释结论时,不需要刑法的明文规定,但不能将刑法的处罚漏洞作为举重以明轻的根据。罪刑法定原则禁止不利于被告人的类推解释,故在适用举轻以明重的原理得出不利于被告人的解释结论后,还要求案件事实符合刑法规范,但是,不能将对案件事实的缩小评价当作对刑法规范的类推解释。     

Motive,Action, and Confusions in the Debate over Hate Crime Legislation

In this article I argue that the objections against hate crimes defined as separate offenses and in terms of group animus are misguided and are based upon a mistaken view of human action that does not see motives as constituent parts of complex actions. If we are going to have hate crimes legislation, there are no good formal reasons keeping us from having distinct offenses for hate crimes or from having ones defined in terms of group animus. My goal is to clear up a number of action-theoretical confusions that have led some theorists and jurists to raise objections that draw attention away from the real crux of the debate over hate crime legislation. Initially, I defend several considerations that weigh against an understanding of hate crimes legislation as being concerned exclusively or even primarily with character, belief, or motive. These considerations in turn help undercut the related concern that hate crime legislation violates free speech protections.     

University students’ support to penalty enhancement for hate crime

Laws enabling penalty enhancement for crimes motivated by hostility or prejudice, i.e. hate crimes, have become common in many countries. However, laws as a measure against hate crimes have been contested, because their deterrent effect has gained none or little support in the (limited) literature, and they may be considered symbolic rather than deterrent. This study investigates attitudes towards penalty enhancement for hate crimes. Previous empirical investigations of this question are scarce. The material consists of a survey targeting nearly 3000 Swedish university students. Support for penalty enhancement for hate crime was moderate, shown by one third of the total sample. Results supported the premise that students belonging to a minority group, assumed to be at risk of hate crime victimization, agree to a higher extent of penalty enhancement than students belonging to the majority. Previous victimization experiences and worrying about being victimized were not significantly related to punitive attitudes. However, respondents who perceived the risk of victimization to be increased for minority groups in general were more likely to support penalty enhancement for hate crime. Findings should be confirmed in a nationally representative sample since the public’s perspective on the criminal justice system is important for understanding and dealing with the social problem of hate crime.     

论雇佣犯罪特点

雇佣犯罪案件不同于其它刑事犯罪案件，雇佣犯罪案件中犯罪目的动机与具体犯罪行为相分离，导致雇佣犯罪表现出独特的隐蔽性、预谋性、交易性、特定性、复杂性等特点，其独特的犯罪方式给揭露打击、防控惩处带来巨大的挑战，必须深入全面地认识雇佣犯罪的特点规律，才能提出有效的打防对策，确保在同刑事犯罪作斗争中立于不败之地。     

Gender ‘Hostility’, Rape,and the Hate Crime Paradigm

This article examines whether crimes motivated by, or which demonstrate, gender ‘hostility’ should be included within the current framework of hate crime legislation in England and Wales. The article uses the example of rape to explore the parallels (both conceptual and evidential) between gender‐motivated violence and other ‘archetypal’ forms of hate crime. It is asserted that where there is clear evidence of gender hostility during the commission of an offence, a defendant should be pursued in law additionally as a hate crime offender. In particular it is argued that by focusing on the hate‐motivation of many sexual violence offenders, the criminal justice system can begin to move away from its current focus on the ‘sexual’ motivations of offenders and begin to more effectively challenge the gendered prejudices that are frequently causal to such crimes.     

Examination of newspaper coverage of Hate Crimes: A moral panic perspective

The role of the media in the construction of social problems is well documented in the social science literature. In some cases, the process of constructing social problems creates a moral panic. In this paper, we contend that a moral panic occurred in the late 1990s regarding hate crimes because of the disproportionate amount of media attention given to the issue. From this panic grew a movement to enact the Hate Crimes Prevention Act of 1999. We quantify Goode and Ben-Yehuda’s (1999) indicators of a moral panic by triangulating sample data, official statistics, and editorials/opinion polls. Results suggest that a moral panic over hate crimes occurred in America during 1998 and 1999.     

Hate crimes on the internet

The Internet serves as a channel for electronic communication on an international level. While communication on the Internet has grown exponentially, the proliferation of crimes in cyberspace has become rampant. Hate crimes, in particular, have become increasingly prevalent on the Internet. In this past decade, the United States government has taken significant measures to combat the proliferation of hate crimes. This paper reports six cases of "cyberhate" crimes and emphasizes pertinent legal issues surrounding them. Current modes of intervention are discussed, ranging from local to national levels. The forensic psychiatrist may undertake a challenging role in the interpretation of the hateful criminal mind at the interface of psychiatry and the law.     

Student perceptions of hate crimes

Estimates indicate hate crimes are a growing concern in the United States. This paper addresses how criminal justice students perceive victims of hate crimes. Survey findings show subjects are less likely to define certain groups of people as victims of hate crimes. Suggestions are made as to how criminal justice departments can heighten awareness of hate crime victims, multiculturalism, and gender diversity among criminal justice students.     

Why a Criminal Prohibition on Sex Selective Abortions Amounts to a Thought Crime

In a sex selective abortion, a woman aborts a fetus simply on account of the fetus’ sex. Her motivation or underlying reason for doing so may very well be sexist. She could be disposed to thinking that a female child is inferior to a male one. In a hate crime, an individual commits a crime on account of a victim’s sex, race, sexual orientation or the like. The individual may be sexist or racist in picking his victim. He or she could be disposed to thinking that one race or sex is inferior to another. I argue that while a prohibition on sex selective abortions is anomalous in a liberal, criminal legal framework, hate crime legislation may not be. The former but not the latter constitutes a thought crime. I define a thought crime as one where an agent’s motivation is not just relevant but sufficient to take an act from the domain of the non-punishable to the domain of the punishable. Ignoring a woman’s sexist motivation in procuring an abortion suddenly renders her act of abortion legal. On the other hand, discounting an agent’s bias in committing a hate motivated assault or murder does not transform the act from a punishable one to a non-punishable one. Assaulting or murdering is already a crime.     

公正司法中的刑法解释理念

公正司法要求树立正确的刑法解释理念。正确地解释刑法,应当在坚持罪刑法定原则的前提下兼顾罪刑均衡原则,采取以主观解释论为主,客观解释论为辅的立场。解释刑法一方面要求解释过程符合可预测性,另一方面也应重视解释结论的妥当性。     

网络黑产链犯罪中帮助行为的刑法评价

网络黑产链犯罪中的帮助行为与传统共同犯罪中的帮助行为有较大的区别,具体表现在行为人的主观故意内容、帮助行为与正犯行为的关联程度及行为的作用效果等方面。然而,目前对网络黑产链犯罪中帮助行为人以共同犯罪论处存在理论障碍,如欠缺共同故意且正犯行为难以认定为犯罪等。司法实践将帮助行为正犯化确实具有现实需要。帮助行为正犯化的论域应当限定在正犯、共犯分离二元参与体系的形式正犯概念之下。在我国刑法分则对实行行为明确定型的立法体制下,司法机关超越解释权限将帮助行为扩张为实行行为的解释与罪刑法定原则有悖。帮助信息网络犯罪活动罪的增设是网络帮助行为正犯化理论的典型立法实践,但成立该罪既不要求帮助行为人对被帮助者实施的具体犯罪内容有明确的认识,也不要求被帮助的犯罪行为在实体上或程序上被认定为犯罪。     

Hate Thy Neighbor: Lessons for Neighborhood Integration for the Post‐Obama Era and Beyond

This essay explores contemporary racial harassment, hate crimes, and violence targeted at African Americans and other racial minorities who have moved to white neighborhoods in the 1990s and 2000s, as described in my book Hate Thy Neighbor: Move In Violence and the Persistence of Segregation in American Housing. The essay details the experiences of blacks, Latinos, and Asian Americans who face race‐based hate crimes upon integrating white neighborhoods. This violence is not limited to a specific geographic area of the United States, and is an important factor in continuing patterns of racial segregation. Social segregation and the failure of existing law to address this violence are important factors in its survival. Analyzing the roots and causes of such violence, the essay calls for greater attention to the enforcement of legal remedies designed to address neighborhood hate crime.     

关于我国网络犯罪刑事管辖权立法的思考

在确定网络犯罪刑事管辖权时,适用传统的刑事管辖权理论面临诸多困境。许多国家的立法以及《网络犯罪公约》都在尝试解决这一问题,而我国关于网络犯罪管辖权的立法明显滞后。为了惩治和打击网络犯罪,我国应根据可能、公正、方便及国际协调原则,分别确立网络犯罪的国内管辖权和国际管辖权。对网络犯罪的国内管辖,可适用刑法中的地域管辖理论,借鉴民事网络案件的管辖权规则,以网络犯罪的IP地址作为确定管辖权的依据。在网络犯罪的国际管辖权方面,建议确立以属地管辖为基础、以法益受到损害的关联性为补充的有限扩张原则;同时,应通过参加或缔结网络犯罪刑事管辖的多边或双边国际条约来解决网络犯罪刑事管辖权的冲突问题。     

跨境证券犯罪刑事管辖及法律适用探讨

境内与境外的证券市场适用不同的法律监管体制,跨境证券犯罪的跨境特征可能使境内境外对相关证券犯罪均具有刑事管辖权,从而引发刑事管辖冲突。对于跨境证券交易的监管和法律适用,无论是在法律规定层面还是在司法实践层面,均应遵循“主场原则”。应明确监管职能上的分工以避免适用不同法律法规的混乱情况,应体现最大的监管效能并减少区际法律冲突。跨境证券犯罪的刑事管辖权归属应充分尊重行政监管原则和考虑前置性法律的适用,并与行政管辖权归属保持一致。跨境证券犯罪的刑事管辖权归属应考虑犯罪行为社会危害的主要发生地。以内幕交易为代表的跨境证券犯罪的主要行为是“交易”,根据区际刑事管辖冲突的解决规则,应由交易行为的发生地管辖,按照交易地的刑法对相关行为进行刑事评价。     

单位犯罪责任构造的反思与检讨

我国单位犯罪立法实行的是一种"严而不厉"的立法政策,但因对单位犯罪的形态结构存在误识,落于在一个犯罪行为的框架内寻求规制犯罪单位和犯罪单位成员刑事责任的窠臼,从而导致立法理念与司法实践的诸多矛盾与冲突。因此,有必要重识单位犯罪的形态结构。单位犯罪是一种特殊的犯罪聚合体,它包含两个犯罪:一个是单位成员犯罪,这是实在的犯罪;另一个是单位自身犯罪,这是拟制的犯罪。单位自身犯罪和单位成员犯罪之间密切联系,但是二者并非共同犯罪,而是独立的两个犯罪行为。既然单位犯罪是两个犯罪行为,那么单位与单位成员就是并列、独立的两个犯罪主体,其各自的刑事责任应相互分离。     

The Complexity of Hate Crime and Bias Activity: Variation across Contexts and Types of Bias

Are racially-motivated hate crimes, non-criminal bias incidents, and general forms of crime associated with the same structural factors? If so, then social disorganization, a powerful structural correlate of general crime, should predict rates of hate incidents. However, tests of social disorganization’s effects on racially-motivated hate crime yield inconsistent results. This study uses data from the Pennsylvania Human Relations Commission (PHRC) to explore such inconsistencies. Specifically, we assess the effects of social disorganization across contexts and types of bias motivation using bias incidents over 12 years. The results suggest that (a) social disorganization, particularly residential instability, is robustly correlated with rates of both hate crime and other prejudicial conduct, and that (b) the interactive effects of social disorganization help explain variations in incident rates by motivation type. Specifically, anti-black incidents are most frequent in unstable, homogeneous (i.e. white) and advantaged communities, while anti-white incidents are most frequent in unstable, disadvantaged communities.     

Assessing the public's demand for hate crime penalties

In this article, we analyze responses from a nationally representative sample of American adults to determine public attitudes toward punishment for hate crimes. While attitudinal polls find strong support for hate crime laws, criminological research provides reasons to believe that this support may be weaker than assumed. Our findings suggest that, while there is minimal public support for harsher penalties for offenders who commit hate crimes, attitudes toward punishment, treatment, and minority rights are predictive of preferences for differential treatment of hate crime offenders. We discuss possible implications of these results in our conclusion.