The Rainbow Flag symbolising the LGBTI rights movement. Originally designed by Gilbert Baker.

Hate crimes: a priority?

By: Claire Martens (writing in her personal capacity)

In some parts of Africa, being gay is not acceptable or even lawful. In fact, it is also seen as “un-African”. In order to escape persecution, Lesbian, Gay, Bisexual, Transsexual and Intersex (LGBTI) individuals are seeking shelter under our all-embracing and progressive legal system in South Africa, little knowing that what the law says, and what happens on the ground, can be the difference between life and death.

Every few weeks, the media informs us of another crime committed against an LGBTI person; corrective rape, torture, mutilation and murder. These are only the extreme crimes; the reek of discrimination proliferates everywhere. LGBTI people enter South Africa as asylum seekers, applying for asylum based on the fact that being gay can mean jail, and even death, in some countries. But applicants are sometimes rejected because they have been unable to prove themselves to be gay. While the concept of proving oneself gay is a whole other debate, the issue itself is where such remarks emanate from. It is not that Home Affairs officials do not understand that sexual orientation is protected in this country, or are not aware of application procedures; instead, there seems to be a lack of understanding and acceptance of the LGBTI community. The result is that the manifestations of discrimination have real and vastly detrimental outcomes for those seeking asylum.

This double persecution experienced by LGBTI asylum seekers is just a drop in the pond. The serious crimes get more coverage, of course, and have recently sparked debate on introducing “priority crimes” to the justice system. Commentators have called crimes committed against LGBTI persons, because they extend from both prejudice and the need to inflict serious physical and emotional harm on the victim, “hate crimes”. The victims of hate crimes often come from marginalised groups and are discriminated against based on some aspect of their person. The term “hate” is misleading because a crime can be committed out of ignorance, jealousy or because of peer pressure. Sometimes the crimes are committed out of fear.

Some may question the importance of labelling a crime as a “hate crime”. Some are of the belief that there is a good reason to label something a hate crime, if the label can serve a purpose such as exposing the existence of the crime, defining the emotions behind the crime and as such, indicating the way of addressing it – through tackling the issue of discrimination. Victim Empowerment SA has called for people, who think they have been victims of hate crime, to report it as such.

“The reason that it is important to report that you think you have been a victim of a hate crime is because it is an indicator of a community problem that needs to be addressed more broadly than your perpetrator, and thus your reporting could contribute to a response from the government/police after identifying the prevalence of violence against a particular group.”

A recent press release by South African National AIDS Council’s Women Sector (SANACWS) indicates that there has been a recent lobby to implement hate crime legislation in this country. Some commentators have asked for farm murders to be included in this. Even though I doubt that people in general have reported themselves as victims of hate crime, there is enough media coverage of LGBTI persons being victims of crime based on their sexual preferences, that we cannot ignore that discrimination exists and that something needs to be done to address it; and soon.

One solution which has been suggested as a way of addressing the problem is to make hate crime a priority crime. The term “priority crime” is not new to South Africa. The specialised unit of the Hawks was set up to deal with organised crime, economic crime, corruption, and other serious crimes. Perhaps “other serious crimes” could refer to crimes committed against LGBTI persons.

Perhaps labelling hate crime a priority crime is a concomitant concern to the previous one noted; that there is a need to legislate for hate crimes. Hate crimes could then be legislated as priority crimes. However, even if we are able to introduce legislation into this country which addresses hate crimes, how do you prove it is a hate crime, what kind of punishments would be suggested and would the legislation address the issue of discrimination? Is the issue not more to do with changing social mores than it is about punishing people for their beliefs; as detrimental as the manifestations of those beliefs are? Will labelling a crime committed against LGBTI people a hate crime, and making it a priority, make a difference?

For more on lobbying for hate crimes: http://dailymaverick.co.za/article/2012-06-27-sas-gay-hate-crimes-an-epidemic-of-violence-less-recognised

http://dailymaverick.co.za/article/2012-06-29-lgbti-rights-in-sa-the-constitutional-dream-and-the-not-so-dreamy-reality

Disclaimer: The opinions expressed by the Realising Rights bloggers, and those providing comments, are theirs alone and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

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The Legal Resources Centre is a public interest law clinic established in South Africa in 1979

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