Is the criminal law the best tool to fight discrimination and hate-based violence?

In the past few months, a central topic of discussion in Italian public debate has been the Ddl Zan, a proposed bill to combat discrimination and violence on the grounds of sex, gender, gender identity, sexual orientation and disability. The bill does not create any new crimes but extends to these categories existing criminal legislation that currently covers discrimination and violence on the grounds of racial, ethnic and religious reasons as well as incitement to commit such acts. Such acts of discrimination and violence and their incitement can either be punished with a fine or a prison sentence to up to 4 years or, in case these actions already constitute a more serious crime, the penalty can be increased to up to double. The Ddl Zan also includes measures to support victims as well as broader initiatives to fight discrimination and inequalities, including the creation of a National Day against homophobia. Unsurprisingly, the bill has been the object of a heated debate. The LGBTQ+ movement and the majority of the feminist movement as well as other progressive forces are fighting for its approval, while conservatives argue that the bill endangers freedom of speech and imposes a supposedly divisive worldview. Setting this aside, I want to address another issue in connection to this bill, namely that of whether the criminal law should be regarded as the right instrument to fight discrimination and this kind of violence.

This question is hardly new and it has most prominently been discussed within the feminist movement. Anti-carceral feminists have strongly cautioned the feminist movement against enlisting the state criminal legal system to solve gendered and sexual violence, also in light of the brutality and the stigma of incarceration, its mass use and the disproportionate impact of the criminal justice system on members of otherwise oppressed and disadvantaged groups. This position is often grounded in an abolitionist stance towards imprisonment, if not the criminal justice system altogether. While I cannot give justice to the richness of that debate here, I want to raise some questions on the use of the criminal law for the kinds of aims set by the Ddl Zan.

Firstly, it is important to note that the Ddl Zan does not assume that the criminal law is the only instrument to combat such discrimination and inequalities, as both the bill itself and the movement of support around it argue for many other measures, especially educational ones, to foster cultural and social change. Nonetheless, the Ddl Zan does espouse the idea that these issues need a criminal response. One rather obvious reason is that many of the actions that the bill targets are hate crimes. While notoriously hard to define, we can understand hate crimes as acts already criminalised, such as assault or harassment, which are carried out because of the victims’ membership in oppressed, marginalised and stigmatised social groups. Such actions naturally sit within the remit of the criminal law. Further, if we look at the criteria typically used to criminalise certain acts and determine the severity of the penalty associated with them, including the harm they cause and the need to send a message about their wrongness, it is reasonable to conclude that hate crimes should be punished more severely than the equivalent non hate-based crimes. A contentious issue in this connection is that of how to establish whether a particular act is in fact a hate crime. In particular, some raise worry about focusing on the motivation of the perpetrators as a criterion to establish the nature of these acts. One of the main reason behind this worry is the view that the criminal law should be focused on actions, rather than the intentions behind committing these actions, especially if those are not clearly and demonstrably reflected in particular behaviours.

The foregoing takes the institution of the criminal law as we know it for granted and, with few exceptions, the recent debate on the Ddl Zan seems to have assumed the appropriateness of a criminal response to these issues. In this connection, it is also important to note that one might maintain that an ideal society will be one of a minimal criminal law and punishment, yet argue that we should still use the tools of the criminal justice system for the here and the now as they are the ones most appropriate in our societies. However, in this debate the question of whether an expansion of the criminal law should ever be part of our progressive goals has been largely ignored and the reliance on the criminal law has gone unquestioned.

Another motivation behind the support of a criminal response to discriminatory and violent acts is based on the idea that the criminal law is the most effective tool available in deterring people from committing these actions. Given the severity of these acts, preventing them is extremely important. However, arguments based on the deterrent effect of criminal punishment have often been contested.

Further, some proponents of the law have referred to the communicative function of the criminal law. In a country like Italy in which the equal status of LGBTQ+ people, women and people living with disabilities remains significantly contested, the Ddl Zan sends the message that they are equal citizens. The question arises here of whether we do in fact need the criminal law, with all its unpalatable baggage, to achieve these communicative aims. For instance, many within the LGBTQ+ movement have rightly pointed out that reforms in Italian family law aimed at equalisation of heterosexual marriage and civil union could communicate the same message. This question is to my mind particularly interesting when applied to acts of discrimination, which are regarded by the previous legislation on which the Ddl Zan is based as crimes. This is not the case in all jurisdictions as discrimination can also be regarded as unlawful without being considered a criminal matter. In this case, if a claim is successful, there would be remedies, which often amount to compensation for the discriminated party, however, the proceedings and their consequence are significantly different as well as the role of the state much more limited. One reason in favour of regarding discriminatory acts as criminal matters could be to ensure a more significant involvement of the state in the enforcement of anti-discrimination laws, though it remains an open question whether criminalising discrimination would necessarily lead to more enforcement. Further, one could appeal to the distinctive communicative function of the criminal law which cannot be achieved by other branches of the law, namely that of expressing public disapproval towards certain acts and declaring them a concern for the whole community because they are not just harms to victims but to the values of the community.

Finally, one of the reasons that has been cited for treating acts of discrimination and violence together is to acknowledge their common origin, namely the heteronormative patriarchal culture, thereby explicitly calling it into question. In that regard, the criminal law is ascribed an interesting cultural function, not only that of condemning certain acts but also of diagnosing and rejecting the whole culture which they are generated by and they constitute. Again in this connection one might wonder why it is the criminal law that should be tasked with this important undertaking, which seems much more suited for cultural and educational means.

While being myself quite tempted by the position that progressive movements should never argue for an expansion of the criminal law, I thought it important to review some of the arguments for and against using the criminal law as a tool to fight discrimination and hate-based violence. The significance and frequency of these acts and their long neglect on the part of the state is such that it requires us to seriously and urgently reflect as a society on how to address them. Whether such response should rely on the tools of the criminal law remains to my mind an open, and unfortunately too often neglected, question.