Victoria University of Wellington Law Review
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Charlotte Brown[*]
Section 9(1)(h) of the Sentencing Act 2002 provides that hate crime is to be taken into account as an aggravating factor when sentencing. Yet gender is excluded from the listed grounds of hostility. This article critically examines the exclusion of gender-based hate crime in New Zealand in relation to criminal sentencing. It advocates that there is a need to recognise such hate crime and proposes a reformulated section 9(1)(h) to achieve this.
In 2002 the New Zealand Government added hate crimes to the list of aggravating factors to be taken into account when sentencing criminals in this country. Section 9(1)(h) of the Sentencing Act 2002 requires higher sentences for crimes involving hostility towards a group of persons on the basis of their race, colour, nationality, religion, gender identity, sexual orientation, age or disability. Legislating against hate crime is positive to the extent that it seeks to further the protection of traditionally disadvantaged groups in society from discrimination. What this legislation ignores, avoids, or at least fails to address, however, is the constant and continuing epidemic of violence against women.
Section 9(1)(h) excludes gender from the listed grounds of hostility. Hate crime, however, is committed against women on the basis of their gender. There are perpetrators who are unmistakably motivated by hatred toward women and whose crime makes the case for including gender as a ground for hostility indisputable. However, achieving recognition of blatant acts of women-hating is only half the struggle. Simply adding gender to the listed grounds in section 9(1)(h) will not alert the courts to the discriminatory and expressive power of other less hateful types of violence to which women are primary victims. In particular, the emphasis on hostility or hatred is likely to preclude consideration of sexual offences that are perceived to be committed out of sexual desire or lust, rather than hatred. Yet these offences can be just as symbolic of prejudicial attitudes as prototypical hate crimes such as lynching or "gay-bashing".[1]
Analysing sexual offences as ideological acts and examining why Parliament, the courts and society have overlooked women in the context of bias crime serves to highlight unnerving assumptions and acceptances with respect to women and violence. Paradoxically, while it is these assumptions that cast gender-based violence outside the hate crime paradigm, it is these entrenched and more subtle perceptions that are in fact in greater need of conceptualisation or recognition in the discrimination context. A refocused bias crime approach, therefore, will achieve this by examining the motivations of men who rape and assault women and by articulating the way that violence may be used to enforce gender norms and roles.
To begin the exploration of these issues, this article examines the rationale behind hate crime legislation and seeks to identify specifically what type of special harm to society section 9(1)(h) is designed to address. What follows is a discussion of the exclusion of gender as ground for hostility in section 9(1)(h) and what this suggests about Parliament's view of violence against women. In a similar vein the responsiveness of the courts to gender-based violence is assessed. The article then moves to discuss why, in light of previous discussion, section 9(1)(h) is likely to preclude consideration of gender-based violence such as rape and sexual assault. It is argued that these offences can be just as discriminatory and symbolic as other prototypical hate crimes. The article then discusses the value of a hate crime approach in the context of gender-based violence before suggesting how section 9(1)(h) could be refocused to allow for this.
Section 9 of the Sentencing Act 2002 sets out aggravating and mitigating factors of sentencing.[2] Although the section does not refer explicitly to hate crimes, subsection (1)(h) provides as an aggravating factor that:
the offender committed the offence partly or wholly because of hostility towards a group of persons who have an enduring common characteristic such as race, colour, nationality, religion, gender identity, sexual orientation, age or disability; and
(i) the hostility is because of a common characteristic; and
(ii) the offender believed that the victim has that characteristic:
Section 9(1)(h) was developed largely in response to one submission written by gay activist Calum Bennachie, which advocated higher sentences for hate crime.[3] The submission focused almost entirely on hate crimes perpetrated against members of gay, bisexual and transgender communities although Bennachie made a point of acknowledging that other groups were affected by hate crime.[4] Bennachie's initiative was strongly supported in the House by gay Labour MP, Tim Barnett, whose driving concern was also to address the high incidence of anti-gay attacks in New Zealand. Barnett affirmed that talk at the Select Committee stage revolved mainly around incidences of hate crime targeting homosexuals, people identifying as transsexual or transgender and racial minorities, and that little, if any, centred on hate crime committed against women.[5] This is unsurprising given that discussion of the issue of hate crime in the House and in Ministry of Justice and Law Commission reports was somewhat cursory. Certainly fuller and more theoretical articulation of rationales for legislating against hate crime can be found in overseas literature and jurisprudence where the issue has attracted greater political and academic attention.
Opposition to the provision was mounted primarily on the basis that singling out victims of particular social groups was in conflict with the principle of equality before the law, therefore establishing privileged classes within New Zealand.[6] This argument that the effect of section 9(1)(h) is to make certain groups "more valuable in the eyes of the law",[7] ignores several realities. First, it fails to take account of the fact that hate crime is a particularly arbitrary brand of crime. It targets its victims solely because they belong to a particular group. While the rest of society may be safe from crime motivated by racist, sexist and homophobic attitudes, these victim groups are not. They are particularly vulnerable because there is little they can do to avoid this type of crime which is motivated by the victims' inherent characteristics. Section 9(1)(h), therefore, does not "value" these groups above others; it recognises that they are less privileged and in greater need of protection. Therefore, it in fact promotes the notion of equality, by seeking to make all groups in society equally safe from crime.
The Ministry of Justice questioned also whether hatred should be singled out as more culpable than other types of motive and asserted that motivation was sufficiently covered by section 9(4) of the Sentencing Act 2002 which permits the Court to take into account "any other factor the Court thinks fit".[8] Hate crime, however, is particularly serious and its perpetrators more culpable because of the greater toll this type of behaviour exacts on its victims and society.[9] Studies show that individual victims of hate crime exhibit greater trauma than do victims of non-bias crime.[10] This increased trauma manifests itself because the victim is selected based on his or her identity, which in turn, leads to self-blame. This increased sense of self-blame often results in low self-esteem, feelings of helplessness, depression, lack of trust, societal withdrawal, excessive fear for personal and familial safety and suicidal tendencies.[11] Furthermore, hate crime has implications for the wider community. Because its motivating factor, for instance the victim's race or sexual orientation, is a common and immutable characteristic, this type of crime has the effect of intimidating and instilling fear in an entire group. Members of that group realise they could be interchanged with the actual victim of the crime and from this comes a frustrating sense of helplessness and lack of control over their personal safety.[12]
The Select Committee, however, did not rely on the special harms of hate crime or the principle of desert to justify higher sentences for hate crime offenders. Instead, the Committee tied the notion of a sentencing premium for hate crimes to utilitarian objectives, asserting that harsher sentences will "send a real message on fundamental values" denouncing hate crime and dissuading its perpetrators.[13] The deterrence rationale is unconvincing in light of general agreement among sentencing experts that sentencing cannot exercise a significant impact on crime rates.[14] However, the declaratory importance of section 9(1)(h) is not overstated. It is the focus and language of the bias crime approach that is powerful in this respect. Section 9(1)(h) requires the courts to draw out and analyse what perpetrators of hate crime are saying about their victims and concentrates on the means by which minority groups are subordinated and disempowered. Most significantly, section 9(1)(h) holds considerable potential to unearth and denormalise subtle and ingrained attitudes toward traditionally underprivileged groups.
Section 9(1)(h), however, excludes gender-based violence from this exercise. The listed grounds for hostility are limited to "race, colour, nationality, religion, gender identity, sexual orientation, age or disability". Gender is not included.
Whether this was Parliament's intention is unclear. Phil Goff, Head of the Justice and Electoral Committee, contends that the term gender identity encompasses the category of gender. This broader characterisation apparently covers "all those who are seen as belonging to a particular group with common gender characteristics, whether they are men, women, intersex, transgender or transsexual".[15] This choice of the phrase gender identity does not appear to have attracted much discussion, if any at all, in submissions on the Bill, in Parliament or at the Select Committee stage. Even so, the majority of the Members involved appear to have assumed that this wide interpretation of gender identity is obvious.[16]
A Gender Identity: an Appropriate Term to Cover Gender?
It is difficult to see why the term gender identity was chosen to cover gender. There are no apparent reasons for departing from the Human Rights Act 1990, the New Zealand Bill of Rights Act 1990 and the Employment Relations Act 2000, which all set out "sex" as a separate ground for discrimination. In fact, the Human Rights Amendment (Gender Identity) Bill 2003 which, if enacted, will add gender identity to the prohibited grounds of discrimination, clearly confines the term to cover individuals who identify "with a gender which is different from the birth gender of that individual or the gender assigned to that individual at birth, and may include individuals who call themselves transsexual, transvestite, transgender, cross-dresser or other description".[17] If this ground is introduced and its scope so expressly limited, it will certainly make it difficult for the courts to read in a wider definition in the context of section 9 of the Sentencing Act 2002.
The term is only appropriate to the extent that economy of words is important: it does neatly, although vaguely, encompass groups that have "something to do with" gender. That the term gender identity includes gender is certainly not obvious. The word identity in particular is more likely to alert lawyers and the courts to the narrower Human Rights Amendment (Gender Identity) Bill 2003 definition. The emphasis on identity suggests that the perpetrator's prejudice is directed toward a person's choice of gender identity or that the point of controversy is the victim's identification with particular gender characteristics. Thus the term aptly describes or relates to an offender's perception of transsexuals, intersex and transgender people, who challenge or refute certain gender stereotypes or ideals.
Hatred or discrimination toward men and women who do conform to traditional gender roles is a completely different type of prejudice: it stems from a belief in negative common characteristics, for example, that a woman is promiscuous, conniving or stupid because she is a woman. Prejudice toward a transgender person who identifies as female is similar in that it arises from a belief in traditional gender stereotypes, but more accurately from a view that these stereotypes should be conformed to; that a person should exhibit behaviour that is congruent with his biological sex. The person's femininity alone is not what is objected to; it is the expression of femininity in a particular context.
B Excluding or Eclipsing Gender: Resigning to the Prevalence of Gender-Based Violence
Even if it is accepted that gender was intended to be included in the section, it does not make literal sense to bring it under the term gender identity. Nor are there any compelling reasons for doing so. Obscuring gender from view in section 9(1)(h) puts gender-based hate crime at risk of going unrecognised by New Zealand police, lawyers and courts. Of greater significance, however, is what this choice of terminology that only tenuously ties in gender or sex suggests about Parliament's view of violence against women. The decision not to expressly include gender reflects and adds to a perception that violence against women is a non-issue. Ignoring or being vague about gender-based violence perpetuates an attitude that violence against women is unavoidable and less significant than other social ills.
Women are, however, victims of hate crime. Furthermore there are a number of offences that are overwhelmingly committed against women by men, such as sexual assault, rape and domestic violence. Yet section 9(1)(h) fails to recognise this reality. It refuses to acknowledge that women, like sexual and racial minorities, suffer an abnormal and unacceptable level of victimisation in society. Instead, excluding women from traditionally underprivileged groups in this context performs a significant normalising function, making sexual harassment, rape, sexual assault and domestic violence "just life for women and girls".[18]
Like Parliament, the courts have demonstrated a tendency to normalise, ignore and down play the prevalence of gender-based violence. Although racist and homophobic motivations have constituted aggravating features in a number of cases, the courts have generally passed up the opportunity to denounce misogynistic attitudes, and have even, on occasion, pitied "women-hating" defendants.
A Nothing Wrong with Women-Hating
Even prior to the Sentencing Act 2002 and section 9(1)(h) the courts have been alert to hate crime. In R v Poki the assailant of a brutal attack on a homosexual victim was punished more severely because of his homophobic motivation.[19] Similarly, in 2000, a gang of young Pakeha men who had insulted, chased and beaten a young Maori boy were given lengthy sentences on the basis that the attack was racially motivated and designed to engender fear in the Maori community.[20]
One month after the Sentencing Act came into effect, a 22 year-old man was sentenced in Blenheim under section 9(1)(h) for a racially motivated crime. The defendant, described by Judge Grace as "bigoted" and "cowardly",[21] was given a nine-month sentence for smashing the window and glass door of a Japanese restaurant and making derogatory reference to its owner. Such a lengthy sentence is certainly excessive for damaging property and must be attributed almost entirely to the defendant's racial motivation. This is what made the otherwise minor offence, in the words of Judge Grace, "so abhorrent".[22] The message Judge Grace sends is clear: this type of arbitrary, terrorising and prejudicial behaviour is unacceptable and will not be tolerated.
Equally random, intimidating and prejudicial violence against women however, has been met with complacency by New Zealand courts. There have been a number of cases in which evidence of women-hating motivations has been unequivocal. Kylie Jones' murderer, Taffy Hotene, admitted to despising women.[23] It was apparent also that the man who murdered English tourist Monica Cantwell in 1989 was motivated by his hatred of women.[24] However, it does not appear that either of these defendants was punished more severely for their misogynistic motivations.
Similarly in the high profile case R v Watson,[25] Watson's deeply held animosity toward women, the probable motivation for his murdering of Olivia Hope and Ben Smart, did not feature in his sentencing. The exact circumstances of the deaths are not known although it was suggested that the killings may have been associated with a sexual attack on Olivia.[26] Evidence was given from which the jury accepted an inference that the defendant was motivated by an indiscriminate hatred and animosity toward women. On one occasion Watson had admitted to a friend that his unhappiness had caused him to have "almost like a hatred toward women" and talked about killing a woman but without referring to any particular woman.[27] Some time later Watson was discussing a woman he had seen in a hotel who had been "annoying", and talked about killing her, making repeated reference to her body.[28] Furthermore, on the night of the murders Watson exhibited anti-social and abusive behaviour toward several women who had rebuffed his often lewd and suggestive advances.[29]
This evidence received considerable attention in court although its significance stopped at establishing a motivation for the killings.[30] At no point does the court suggest that this motivation is particularly culpable or reprehensible or that it should be considered an aggravating feature of Watson's crime. His behaviour toward women is clearly perceived as somewhat obsessive, loutish and unsavoury. However, nowhere does the court make mention of the fact that Watson discriminates in his violence, that he makes a particular group in our society vulnerable and that his perceptions and attitudes are particularly reprehensible. The implication is certainly not that Watson's misogyny made his offence particularly "abhorrent".
Just as Parliament has neglected to acknowledge gender-based violence in section 9(1)(h), the courts have routinely ignored or failed to give emphasis to misogynistic motivations for crime. In effect the courts are reinforcing the notion that women-hating is distinct from race hate or hating gay people, in that it is somehow more acceptable and less in need of denunciation. Such a limp and uninspired response to gender-based violence demonstrates an even greater need to highlight this violence as discriminatory, abnormal and unacceptable.
B Men Who Hate Women Should be Pitied, Not Punished
Rather than strongly condemning gender-biased motivations, the courts have shown a tendency to look somewhat sympathetically on defendants who have developed sexually aberrant and misogynistic attitudes, and even attempt to explain them. Focusing on the reasons behind offenders' women-hating attitudes, such as previous rejection by women or a particularly difficult upbringing, serves to make gender-based violence less blameworthy or more understandable.
In R v C the accused pleaded guilty to serious sexual offending against his daughter over a period of ten years.[31] The abuse took numerous forms including one incident of rape. Various tests revealed that the appellant harboured considerable resentment toward women and that the appellant regularly had what were described as "offence-supporting sex fantasies", enhanced by his excessive consumption of pornography. It was also shown that he had sought opportunities to offend, spending hours on internet chat sites looking for victims.[32] Nevertheless, his hostility toward women did not constitute an aggravating feature. Instead the judgment emphasises the fact that he was ostracised at school and exposed to and tempted by pornography, suggesting the offender's perversion and sexual fantasies are somewhat unwitting or a product of his social climate. The inference is that perpetrators of gender-based violence do not choose to hate or target women and are not responsible for their attitudes.
This is apparent also in comments made by Paul Surridge, the lawyer of serial rapist Dean Hiroki, suggesting his client is to be pitied because he is a victim of, and "hates" society.[33] According to Surridge this explains why "at times when he's down and out he punishes members of that society".[34] What Hiroki's treatment by society does not explain, however, is why the only members of society he punishes are women. Surridge's statement indicates a concerning perception that violence against women is a natural or unremarkable vent for offenders' dissatisfaction with society. Instead of emphasising that Hiroki discriminates in his violence, the fact that it is women who will bear the brunt of this type of anger is presented as simply an insurmountable social reality.
This attitude of resignation is also reflected in the courts' tendency to treat misogyny as a "psychological condition", rather than a particularly culpable motivation. As commentator Marguerite Angelari states:[35]
[S]ex offenders are often dealt with from a healing perspective, rather than from a criminal justice perspective, reinforcing the perception that sex offenders are different from other hate crime perpetrators and merely require treatment.
In fact, much of the work of anti-rape advocates has focused on countering the image of rapists as sick individuals who need to spend time in therapy, and instead promoting the notion that these individuals should be treated as perpetrators of violent crime who deserve to be punished.[36] In R v C, for example, the defendant's unusually high level of sexual preoccupation, paedophiliac tendencies and lack of empathy for his victims were all referred to only in the context of a psychologist's report, leaving the impression that the offender does not wilfully perpetrate any of this behaviour but rather that it is just a mysterious, unfortunate and uncontrollable part of his psyche. Similarly, in R v Hotene Hotene's defence lawyer Roger Chambers QC played on this perception. Chambers stated that Hotene "does not know where his anger toward women stems from", but that "it's just in him",[37] implying that he is helpless in this respect or that his misogyny is the result of some strange phenomenon.
Some might argue that where offenders' motivations and perceptions are results of social context, those offenders should not be held culpable because they are not fully responsible for their prejudices. However, this reasoning is not applied consistently. Animosity toward racial and sexual minorities must surely also be rooted in a person's background and a product of their experiences, yet the courts are less inclined to attempt to understand these motivations. Judge Grace's remarks in respect of the Blenheim perpetrator of a racially motivated crime, that he was "bigoted" and "cowardly", clearly held the offender responsible for his attitudes and unequivocally condemned them. In attempting to understand the motivations of offenders who specifically victimise women, however, the courts make misogyny or gender-bias into an enigmatic, impenetrable and stagnant social problem. The incidence of gender-based violence may be overwhelming, but this surely is a reason to strongly deplore violence against women and make its perpetrators accountable.
New Zealand courts have routinely understated, accepted or simply failed to articulate the perceptions and assumptions that drive violence against women. Section 9(1)(h) in its present form will not change this. Adding gender to the grounds for hostility, it is hoped, will make the courts more alert to hate crime perpetrated against women. However, the requirement in section 9(1)(h) that an offender who commits an offence against a woman must be motivated in part or entirely by hostility toward the victim because of her sex, is problematic. Sexual offences are likely to be deemed outside the scope of section 9(1)(h) because of a perception that they are committed out of sexual desire rather than hate. Furthermore, while rape is undoubtedly a gender-based offence and committed predominantly against women, some might argue men do not rape women strictly because they are women. The discriminatory element of rape is then simply incidental to rapists' motivation of heterosexual desire.
However, even where not strictly motivated by hate, rape and sexual assault can be ideological acts similar to prototypical hate crimes such as "gay bashing" and lynching. Although perpetrators of these crimes may not be motivated strictly by hatred, they are often acting on more subtle perceptions and attitudes toward women that are more worrying and in fact in greater need of articulation and condemnation. Furthermore, regardless of an offender's motivation, the discriminatory and terrorising effects of rape and sexual assault should be enough to deem offenders who systematically commit these acts against women, perpetrators of hate crime.
A Rape is Perceived as a Crime of Sex, Not Hate
Hate crime centres on a narrow prototype of perpetrators as hard-core, animus driven individuals whose violent attacks are deviant, irrational and intended solely to inflict harm on a member of a target group. Certainly there are perpetrators of crime against women who fit this model, such as Hotene and Watson. However, the emphasis on hatred or hostility in bias crime does not sit easily with a number of gender-based offences, particularly rape and sexual assault. It is argued that these offences are not driven by hatred, but by apparently more forgivable, and even more understandable, urges such as lust and passion. [38]
In the American case Brzonkala v Virginia Polytechnic & State University, for example, Federal Judge Jackson L Kiser opined that classifying rape as a hate crime was problematic because in certain situations "the man's sexual passion is what provokes the rape by decreasing the man's control".[39] This somewhat compassionate attitude toward perpetrators of rape is particularly unsettling in the context of this case. The defendants, two male students, had held their female victim down and raped her repeatedly, one of them later bragging aloud in their university dining hall that they liked to "get girls drunk and fuck the shit out of them".[40]
Similar attitudes with respect to sexual offenders' motivations have been intimated in New Zealand. In R v N, the court speculated "there may be cases where a woman has provoked a man into losing control and forcing himself upon her".[41] Further, in R v Robertson, the fact that the defendant, who had abducted and sexually assaulted a female hitchhiker, was not "out hunting or prowling for a victim" but rather had "taken advantage of an opportunity that presented itself" and had acted on impulse, was held to be a mitigating factor in his sentencing.[42] Although not in the context of considering hate crime, these remarks are still indicative of a perception that men can be forgiven to some extent for giving in to sexual desire and raping. This emphasis on male desire and weakness obviously drives sexual offences away from hate crime law that requires much more asserted motivations such as hatred or prejudice.[43]
Furthermore, the effect of explaining rape and sexual assault by reference to uncalculated and uncontrollable motivations such as sexual desire is that the ideological significance of these offences is often lost or ignored because apparently the offender does not mean anything by his actions. Yet perpetrators of rape and sexual assault are often saying something about their victims. While, strictly speaking, these perpetrators may not hate the women they rape or assault, they frequently exhibit less blatant, but ingrained and sexist attitudes toward women.
1 Rape can be an ideological act
In R v Misitea a female complainant was abducted from an Auckland street and taken to an area where a gang convention was being held.[44] Over a period of several hours, she was stripped, robbed, repeatedly raped, slapped and forced to perform oral sex. Gang members doused her with petrol, urinated on her, pulled at her breasts, pushed a bottle into her vagina and attempted to commit sodomy with her. She was repeatedly called "slut" and "bitch".
The court acknowledged that this offence was an "intrusion of the gravest kind" into the victim's bodily rights, that it exhibited gross aggravating features and that the victim was treated as "the object of utter male licentiousness".[45] Yet it is only in this last remark that the Court comes close to elucidating and denouncing the overwhelmingly gendered nature of the physical and verbal abuse inflicted. This is an act that not only afforded its assailants sexual gratification but that unmistakably speaks about her sex. Implicit in the offenders' use of gendered epithets "bitch" and "slut", is the notion that she asked for her assault or that it can blamed on traditional womanly wiles such as promiscuity. Furthermore, the offenders made repeated efforts to degrade the victim by dirtying her with petrol and urine, pushing a bottle into her, forcing her to give oral sex and raping her simultaneously. These dehumanising acts that focus particularly on the offender's vagina, mouth and anus perpetuate the idea that she is just a collection of orifices and that her only purpose is to sexually gratify men. They brutally reinforce a gender chain of command that allows men to own, use and mistreat women.
Whether the courts will identify this type of violence as motivated by hostility toward women for the purposes of section 9(1)(h), however, is uncertain. The sexual nature of the offence and the fact that the perpetrators were motivated in part by sexual desire is likely to obscure the symbolic significance and hateful aspects of their violence. Yet it is this type of expressive crime that section 9(1)(h) needs to condemn. It is crime that perpetuates damaging gender stereotypes and seeks to dominate and disempower its victims.
In fact there are a number of similarities between the Misitea offence and an example given by Calum Bennachie of an anti-gay crime.[46] In 1990 homophobe Andrew Tewi Samuels beat his victim to death, leaving him lying face downward, spread-eagled and stripped except for his socks. The victim suffered multiple injuries to his body, face and penis and damage to his anus from a sharp object. The stripping and positioning of the victim clearly suggests an intention to humiliate and dehumanise that is paralleled in the Misitea case. The victim's anus and penis presumably represent what offends Samuels about his victim's sexuality and, thus, these parts of the body are the focus of his violence. Similarly the Misitea offenders, who seek to "own" their victim, violate and hurt the parts of her body that signify her sexual independence.
Many gender-based bias crimes, however, will fall outside the scope of section 9(1)(h). While a motivation of hatred may be easier to discern in cases of anti-gay and race attacks, the hateful nature of gender-based violence is mixed with and cloaked by its sexual aspect. Furthermore, gender-based violence is often driven by more subtle and complex motivations than hatred, such as the desire to police women's behaviour,[47] in particular the use of their bodies. These crimes still exhibit, however, reprehensible beliefs and perceptions regarding women that need to be identified, articulated and strongly criticised.
B The Discriminatory Aspect of Rape is only Incidental to Rapists' Motivation of Heterosexual Desire
The requirement that an offender is driven by personal animus toward the victim's group also excludes from consideration perpetrators who do not necessarily aim to discriminate but whose victims will always share the same immutable characteristic because of the nature of the crime. Rather than being driven by hate, these perpetrators may seek physical, psychological or social rewards that are gained by targeting particular social groups.[48] Serial rapists fit into this category. Their crime, although perhaps motivated by sexual desire rather than hate, nevertheless has a discriminatory aspect that requires acknowledgement.
Joseph Thompson, sometimes referred to as the South Auckland rapist, pleaded guilty to 129 crimes against 47 girls and women.[49] The counts included six of aggravated wounding, one of aggravated assault, five of abduction, ten of assault with intention to commit rape, 46 of rape and 15 of sexual violation by unlawful sexual connection. Thompson exhibited a clear pattern of offending. He would walk around a selected area looking for houses containing suitable female victims and, on ensuring the victim was alone or at least accessible, would break into the house, normally taking a knife from the kitchen. He would threaten, brutally assault and rape his victim.
It does not appear that Thompson was motivated solely by hatred or animus toward women and, arguably, it is incorrect to say that his victims' gender is strictly the reason for this behaviour. As an editorial in US News and World Report, titled "Rape is not an Act of Bias", explains:[50]
Heterosexual rapists attack women (as opposed to a non-discriminatory target of 50 percent males and females) because of their sexual orientation, not because they arbitrarily decide to single out one of our two leading genders.
However, the salient fact must be that heterosexual rapists do single out one gender. Whatever Thompson's motivation, his victims will be women because they are the only members of society who will provide him with the sexual gratification he seeks. Because he selects his victims at random and not the basis of any personal animosity toward them, all women are vulnerable to and can do little to protect themselves from Thompson since, to use the words of the Select Committee, "they cannot change who they are".[51]
1 Serial rapists inflict all the special harms of bias crime
Considering the rationale behind new hate crime provision, the belief that crimes motivated by bias or prejudice cause unique and serious harms to the individual victim and the social group to which the victim belongs, this type of offending must be covered by section 9(1)(h).
Hate crime victims have been compared to rape victims in a number of studies because the physical harm associated with the crime, however great, is less significant than the powerful accompanying emotional sense of violation. In addition to any immediate physical injury, risk of pregnancy, or threat of sexually transmitted disease, is the severe and long lasting psychological harm.[52]
The grave psychological impact of Thompson's offending is illustrated by the suffering of a 14 year old girl whom Thompson brutally beat and raped. Following her attack, his victim lived in fear of men, was unable to be left by herself and could not sleep at night. Once an A student at school, she began to achieve Cs and occasional Bs. Approximately four months after the attack she wrote a note to her family stating that with all the problems the rape had caused for her and her family, she wanted to commit suicide.[53] Similarly Judge Craig Thompson, who sentenced rapist Dean Horiki, described the impact report on one of Horiki's victims as "one of the most soul-tearing documents" he had read.[54]
In addition to inflicting the severe psychological injury typically associated with hate crime on their victims, rapists instil fear and distrust in their target group. Other women in the community feared the "South Auckland Rapist" because they were aware of their interchangeability with his victims. The realisation that "she could have been me" caused them to feel a sense of helplessness and lack of control over their safety. As one human rights activist has noted:[55]
The threat of violence permeates every aspect of women's lives....Women - whether they are white or women of colour, heterosexual or lesbian, young or old - know they cannot go places men can go without the fear of being attacked and violated.
This is the effect Thompson's raping spree had on women. It does not matter that Thompson may not have hated his victims because of their sex. His offending affected women in the same way that, for example, an act of racial hatred against a Muslim affects other Muslims in the community. The discriminatory nature of his crime intimidated his target group, keeping them in a role of subordination.
It may be more correct to say that women are raped or sexually assaulted because they are easy targets or simply suit their offenders' objectives than to say that it is because they are hated.[56] However, motivation must be immaterial where the severe physical injuries and societal costs are the same as those of other prototypical hate crimes.
Some might argue that the discriminatory aspect and ideology of rape and sexual assault is already acknowledged in existing legislation, and that there is, therefore, no need to address these issues in the context of hate crime. Indeed, political advisor Michael Wilson who assisted in drafting section 9(1)(h), stated that although not asked specifically to include gender at the time, his view was that it was not included because gender-based violence is already covered by specific offences such as rape and sexual assault.[57]
What this belief fails to recognise is that the specific offences of rape and sexual assault do not require the courts to articulate the discriminatory and symbolic aspects of these crimes. While it is perhaps common knowledge that rape is overwhelmingly committed by men against women, simply accepting that the pervading threat to women of rape is well known normalises this fact, reinforcing the notion that it is a social reality we can do nothing about. Furthermore, these specific sections are unconcerned with the beliefs, attitudes or perceptions that motivate sexual violence against women.
This is the value of the hate crime approach: it permits a fuller accounting of the violence, capturing and confronting the attitudes that drive it. Hate crime laws give a particular legal significance to what the rapist says, for example that women are "stupid", or "like" or "deserve" to be beaten or raped.[58] This is especially important in this context where offenders are acting on entrenched and damaging attitudes toward women that have so far been met with complacency, and even at times acceptance, by our courts. Denouncing and articulating these attitudes is strongly in line with the Select Committee's comment in relation to the importance of indicating "that there is something wrong with the way the offender thinks."[59]
Furthermore, classifying rape and sexual assault as hate crime captures a more complete range of its victims' injuries and in addition recognises the impact an individual incident of gender-based violence has on other women in the community.[60] Labelling these offences as hate crime when appropriate serves to acknowledge women's particular vulnerability to sexual violence and more importantly sends a clear message that the disproportionate victimisation of women in this respect is unacceptable and must be addressed.
Hate crime laws are not interchangeable with existing laws that punish rape and other forms of sexual assault, and thus, section 9(1)(h) must be refocused to cover discriminatory and ideological acts of violence against women.[61] At present section 9(1)(h) reflects an oversimplification of the phenomenon it seeks to describe.[62] It fails to capture the full range of cases giving rise to the special harms that hate crime laws were designed to address. In particular it denies gender-based offences the level of conceptualisation they require. This paper proposes that section 9(1)(h) be reformulated to address these deficiencies. The reformed section 9(1)(h) will require a harsher penalty where:
(h) the victim belongs to a social group that has an enduring common characteristic such as race, colour, nationality, religion, gender, gender identity, sexual orientation, age, or disability; and
(i) the victim's social group status was a significant or substantial factor in the offender's selection of his victim; or
(ii) the offender committed the offence partly or wholly because of a belief or perception regarding the victim's social group status.
The proposed section makes express reference to, and thus acknowledges, gender-based violence. Furthermore, by focusing on the offender's selection process in (i) as opposed to his motivation for the crime, the section applies to a broader range of discriminatory crimes, in particular sexual offences perpetrated against women. While (i) would undoubtedly apply to an offender who acted upon personal hostility toward a social group, his or her feelings toward that group will not always be salient nor serve to preclude crime that is by its nature discriminatory. It will be immaterial whether a perpetrator is motivated by lust or hate if his victims are invariably women and his behaviour terrorises this particular group.
Paragraph (ii) alerts the courts to crimes that exhibit motivations that are less blatant than hatred, but equally as damaging. By referring to the offender's beliefs or perceptions, as opposed to an easily discernable motivation such as hostility, the proposed section requires the courts to look more closely at crimes committed against members of particular groups. As previously shown, this is particularly important in the context of gender-based violence where offenders are often acting on more complicated and entrenched sexist attitudes toward women.
Section 9(1)(h) begs amendment. Regardless of whether Parliament intended hostility on the basis of gender to be covered by the term gender identity, there is nothing to indicate that it should be given this wide interpretation. Nor does it make literal sense to interpret gender identity in this way. The most concerning aspect of this oversight by Parliament, however, is the fact that it reflects a tendency to understate, ignore and accept the pervasiveness of violence against women, a tendency that is paralleled in New Zealand courts. This failure by Parliament and the courts to respond to misogynistic violence, demonstrates an attitude of resignation when it comes to the issue of gender-based violence.
Only by making gender-based violence an issue, by articulating, understanding and condemning the motivations that drive it, can Parliament and the courts hope to begin to counter its high incidence. However, simply adding gender to the grounds of hostility in section 9(1)(h) will not be enough. This is apparent from the general complacency with which the courts have treated misogynistic and gender-based violence. Furthermore, a prototype-centred model of hate crime, which requires a showing of animus, will only divert attention from the expressive and discriminatory aspects of sexual offending that targets women, misdefining the boundaries of the category that bias crimes were intended to create.[63] Section 9(1)(h), therefore, requires refocusing, to prompt the courts to draw out, articulate and denounce the subtler, more ingrained, but equally concerning perceptions and attitudes that underpin so many acts of violence against women. Its focus must be on the discriminatory aspect of particular crimes and encompass a broader range of motivations. Only then will section 9(1)(h) allow for a sharper, more attentive and meaningful articulation of, and response to, gender-based violence.
[*] Submitted as part of the LLB(Hons) programme at Victoria University of Wellington (supervisor: Elisabeth McDonald).
[1] Pamela Coukos "Deconstructing the Debate Over Gender and Hate Crimes Legislation" (1999) 11 Geo J Gender & L 11, 11.
[2] The New Zealand Government is not the first to legislate against hate crime and is also not alone in failing to address gender-based violence in this context. In the United Kingdom the courts are permitted to increase the penalty attached to existing crimes if the perpetrator acted as a result of hatred against a certain group of people. This discretion is limited, however, to criminal behaviour that manifests as racial or religious aggravation. In the United States, penalty enhancement statutes have been adopted in the majority of states and at federal level. At present the law permits federal prosecution of a hate crime only if motivated by bias based on race, religion, national origin or colour and the assailant intended to prevent the victim from exercising a federally protected right. The Local Law Enforcement Enhancement Act, not yet introduced, proposes to remove the second limb of the current provision and widen the grounds for hostility to include sexual orientation, disability and sex. This proposed reform followed considerable academic criticism of the State's failure to recognise and denounce crime committed against women because of their sex, however the debate over its enactment continues. Over half of the forty states in America with bias laws have included gender or sex as a ground for hostility, although prosecutions of gender-motivated crimes as hate crimes at both federal and state level are rare. Hate crime legislation in Canada, however, does recognise gender-motivated crime. The Canadian Criminal Code provides that where an offence is motivated by bias, prejudice or hate, based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation or any similar facts, an increased sentence will be imposed.
[3] Calum Bennachie "Submission to the Justice and Electoral Committee on the Sentencing Act 2002".
[4] Bennachie, above n 3, 2.
[5] Interview with Tim Barnett, Labour MP and Chairperson of Justice and Electoral Select Committee (Charlotte Brown, 7 August 2003)
[6] Hon K Shirley MP (17 April 2002) 599 NZPD 15593.
[7] "Proposed Law Will Punish Felons for Their Thoughts" (4 September 2002) The New Zealand Herald Auckland A4.
[8] The Ministry of Justice Report on Sentencing Act 2002 (SE 08 00 00 02, Ministry of Justice, Wellington, 2001) 12.
[9] Kathryn Carney "Rape: The Paradigmatic Hate Crime" (2001) Spring St John's L Rev 315, 322.
[10] Carney, above n 9, 329.
[11] Carney, above n 9, 330.
[12] Carney, above n 9, 327.
[13] Justice and Electoral Select Committee "Sentencing and Parole Reform Commentary" (Wellington, 2002) 12.
[14] Julian Roberts 'Sentencing in the Cases of Hate-Motivated Crime: An Analysis of Subparagraph 718.2(a)(i) of the Criminal Code" (2001) Fall Queen's L J 93, 98.
[15] Hon Phil Goff, Head of Justice and Electoral Committee, to the author (8 August 2003) email.
[16] This was apparent from discussion with Darren Hughes, MP, Dianne Yates, MP and Tim Barnett, MP who all affirmed that the inclusion of gender in the term gender identity was not debated in the House or Select Committee.
[17] G Beyer MP "Human Rights Amendment (Gender Identity) Bill: Explanatory Note" (2003) 1.
[18] Coukos, above n 1, 13.
[19] R v Poki (24 May 2003) CA 14/01.
[20] R v Curry (28 September 2000) CA 272/00.
[21] Sentencing judgment unavailable: reported in Mark Stevens "Police on Alert as Racial Attacks Rise" (10 August 2002) The Dominion Post Wellington 12.
[22] Stevens, above n 21, 12.
[23] R v Hotene (9 October 2000) HC Wn AP 23/00.
[24] "Seaside Town Grieves for Loss of Innocence" (13 November 1999) The New Zealand Herald Auckland <http://www.knowledge-basket.co.nz/> (last accessed 16 May 2004).
[25] R v Watson (8 May 2000) CA 507/99.
[26] Watson, above n 25, 17.
[27] Watson, above n 25, 12.
[28] Watson, above n 25, 13.
[29] Watson, above n 21, 19.
[30] Watson, above n 21, 18.
[31] R v C [2003] 1 NZLR 30 (CA) Tipping J.
[32] R v C, above n 31, 31.
[33] Mary Longmore "Apprentice in Rape" (4 December 1999) The Evening Post Wellington 13.
[34] Longmore, above n 33, 13.
[35] Marguerite Angelari "Hate Crime Statutes: A Promising Tool For Fighting Violence Against Women" (1994) Spring A Univ J Gen & L 64, 90.
[36] Angelari, above n 35, 90.
[37] "He Went From Strangling Kittens to Killing Kylie" (13 August 2000) The Sunday Star-Times Auckland 7.
[38] See John Leo "Rape Is Not an Act of Bias" (8 October 1990) US News and World Report Washington 25.
[39] Brzonkala v Virginia Polytechnic & State University (1996) 935 F Supp 779, 785 (WD Va) Judge Jackson L Kiser.
[40] Brzonkala, above n 39, 785.
[41] R v N [1987] 2 NZLR 268, 270 (CA) Casey J.
[42] R v Robertson [2002] DCR 861, 868 Judge R L B Spear.
[43] The idea that rape is simply the result of a misguided sexual urge diverts attention away from the perpetrator and his motivations, and onto the victim and how she might have excited the perpetrator's sexual urges. At present, sexual assault survivors must refute claims that they contributed to the crime by saying "no" but meaning "yes", by wearing seductive clothes, by having had prior sex, by deciding to be alone in the wrong places or going to dangerous parties. (See Coukos, above n 1, 36.)
[44] R v Misitea [1987] NZCA 306; [1987] 2 NZLR 257 (CA) Cooke P.
[45] Misitea, above n 44, 30.
[46] Bennachie, above n 3.
[47] Coukos, above n 1, 36.
[48] See Lu-in Wang "The Complexities of Hate" (1999) 60 OHSLJ 799, 801.
[49] R v Thompson [1996] 2 NZLR 429 (CA) Cooke P.
[50] Leo, above n 38.
[51] Justice and Electoral Select Committee, above n 13, 12.
[52] Carney, above n 9, 344.
[53] Thompson, above n 49, 437.
[54] Mary Longmore "Apprentice in Rape" (4 December 1999) The Evening Post Wellington 13.
[55] Leslie Wolfe "Violence Against Women as a Bias-Motivated Hate Crime: Defining the Issues" (1991) S Hrg 245, 265.
[56] Lu-in Wang, above n 48, 811.
[57] Interview with Michael Wilson, political adviser (the author, Wellington, 14 August 2003).
[58] Coukos, above n 1, 16.
[59] Justice and Select Committee, above n 13, 10.
[60] Coukos, above n 1, 31.
[61] Coukos, above n 1, 15.
[62] Lu-in Wang, above n 48, 801.
[63] Lu-in Wang, above n 48, 801.
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