Disability hate crime

Disability hate crime is a form of hate crime arising from the hostility of the perpetrator towards the disability, or perceived disability, of the victim, or because of their perceived connection to disability. It is often viewed politically as a logical extreme of ableism (sometimes known in the UK by the disputed word "disablism"), carried through into criminal acts against the person. This phenomenon can take many forms, from verbal abuse and intimidatory behaviour to vandalism, assault, or even murder. Disability hate crimes may be one-off incidents, or systematic abuse that may continue over periods of weeks, months or even years.

Disability hate crime may occur between strangers who have never met, between acquaintances or within the family. The two key requirements for an act to be called a "disability hate crime" are that it is motivated in part or whole by prejudice against someone because of disability; and second, that the act is actually a crime.

Recognition

Disability hate crime is currently one of the least recognised forms of hate crime. Sir Ken Macdonald, QC, the then Director of Public Prosecutions for England and Wales stated in a speech to the Bar Council in October 2008 that "I am on record as saying that it is my sense that disability hate crime is very widespread. I have said that it is my view that at the lower end of the spectrum there is a vast amount not being picked up. I have also expressed the view that the more serious disability hate crimes are not always being prosecuted as they should be. This is a scar on the conscience of criminal justice. And all bodies and all institutions involved in the delivery of justice, including my own, share the responsibility."

Legal status

In the United States, the Matthew Shepard Act, expanded the 1969 United States federal hate-crime law to include crimes motivated by a victim's actual or perceived disability.

In the UK, disability hate crime is regarded as an aggravating factor under Section 146 of the Criminal Justice Act 2003, allowing a heavier tariff to be used in sentencing than the crime might draw without the hate elements. Section 146 states that the sentencing provisions apply if:

(a) that, at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—

(i) the sexual orientation (or presumed sexual orientation) of the victim, or

(ii) a disability (or presumed disability) of the victim, or

(b) that the offence is motivated (wholly or partly)—

(i) by hostility towards persons who are of a particular sexual orientation, or

(ii) by hostility towards persons who have a disability or a particular disability.^ Sections 145 and 146 of the Criminal Justice Act 2003

The test in Section 146 is deliberately one for evidence of 'hostility' rather than 'hatred' as the seriousness of the offence was considered to justify the application of a less-strict test.

Crime recording

The historical failure of police forces, prosecutors and some social care organizations to treat Disability Hate Crime as a serious issue, an echo of previous failures over other forms of hate crime, particularly racial and LGBT-focused hate crimes, has led to chronic under-reporting. This under-reporting is both pre-emptive, through a widespread belief within the disabled community that they will not be treated seriously by law enforcement, and post-facto, where police forces investigate the crime as non hate-based and record it as such.

The UK Crown Prosecution Service's Annual Hate Crime Report, shows that 11,624 cases of racial or religious hate crime were prosecuted in England and Wales in 2009 with 10,690 leading to successful convictions. By contrast only 363 prosecutions and 299 convictions were for Disability Hate Crimes.

The UK charity Scope has conducted research into the prevalence and experience of Disability hate crime, summarizing their findings and those of other disability groups in the report Getting Away With Murder Katharine Quarmby, who wrote the report and was the first British journalist to investigate disability hate crime, has also written a book on the matter.

Perceived vulnerability

The treatment of disability hate crimes has been affected by the perception of disabled people as inherently vulnerable. This is a multi-faceted issue. Unfounded application of the 'vulnerable' label to a disabled person is considered a form of infantilization, a type of ableism in which disabled people are regarded as childlike, rather than as functioning adults. The use of this label also frequently represents a failure to distinguish between the victim of the crime and the situation they found themselves facing.

Perceptions of vulnerability can also lead to the perception that the victim is partially or entirely responsible for the crime. For example, a disabled person may be perceived as having been at fault due to being alone after dark, i.e. engaged in risky behaviour. This pattern of victim blaming has also appeared in the prosecution of rape and other sexual crimes.

On the other hand, it has been suggested that the vulnerability of victims is a key factor in all crimes. It has been applied to wide variety of scenarios, including people working at night or handling large amounts of money. This implies that the issue of vulnerability is more complex than some advocates have argued. If it is a factor in all crimes, it then becomes necessary to adopt a contextual perspective without regarding disability as intrinsically vulnerable.

The Crown Prosecution Service has issued guidance to its prosecutors reminding them that 'vulnerable' should only be used as a description of a person within the precise legal meaning of the term - for instance, as defined in section 16 of the Youth Justice and Criminal Evidence Act 1999.

See also

• Disability abuse
• Mate crime