The construction of vulnerability and hate as a legal contradiction

1. The construction of vulnerability and hate as a legal contradiction Berit Vegheim Stopp Diskrimineringen – IL Norge post@stopdisk.no mobil: 90196325

2. Legal protection in Norway • Legal protectionagainst DHC since2013 • 6 DHC cases registered by thepolice • DHC is not included in education/training ofpolice, lawyers, jugdes, socialworkersetz.

3. New PenalCode enacted2015 There is a general provision, section 77, stating that bias motivation shall be taken into account as an aggravating circumstance to any violation of the law.

4. Special Hate Crimeprovisions Hate speech sec. 185, Discrimination sec. 186 Threats sec. 264 Assault sec. 272 Violence sec. 274 Vandalism sec. 352

5. Regularlyreported in media • Wheel-chairstolen or tipped • Damageto property/technicalequipment • Person in wheelchairbrutallyrobbed • Person withlearningimpairmentbullied, attackedand or robbed • Abuse and violencebehindcloseddoors The conceptalwaysmissing: hate crime.

6. The non-existingphenomenon Disablist hate crime, in short DHC LennardDavis: the missing term in the race, class, gender triad The Doctrine of benign neglect • Mark Sherry: “Cellophane crime” • EHRC report Hidden in plain sight: A culture of disbelief exists around this issue.

7. Whenyouwon’tbelieve it • DHC is usuallyperceived and presented as an isolated, tragicincident, whichunfortunatelyhappened to a disabled person. • Therewill be noreference to similarincidents and consequentlynoidentification or recognitionof a phenomenon.

8. Is it really hate? • A relevant question, which is still debated, but doubt has not prevented international recognition in politics, legislation, research and the media. • Doubt about the motive seems to become of vital importance when victims are disabled • Doubt cannot justify denial of legal protection and equality before the law

9. «The invisible hate» What drives a gang of boys to hit a man with his own stick until he starts bleeding? The cut on the forehead was deep. The man leaned on one of his crutches, with the studded ice tip pointed towards the icy surface. It was that one the assailants used, he explained. Source: Haddi N’Jie in Lørdagsmagasinet, Dagbladet 15.2. 2014

10. Whenit’s not «stranger danger» Knownoffender - Befriending whenthe target group is, but not exclusively, peoplewithlearningdisabilities. • Abuseofsomeone’sloneliness, isolation, trust and faithfulness. • Equallyseriouscrimes, evenmurder. • Quitemisleadingcalled «mate-crime»

11. Whenit’s not outonthestreet Behindcloseddoors • Disablist hate crimemayoftentakeplace in a residentialgroup setting or otherisolatedsocial settings. Ex: WinterbourneView. • Unlikelyreported - fearofretribution • Victimsmayoften be unable to communicate

12. Whenvictimsareperceived to be • Vulnerable Easy target can not be a target of hate • Unreliable Oftenlearning and psychosocialdisabilities • Belonging to a groupthatnoonewill harm Widespreadmisconceptionshared by family, friends, socialworkers, police and court.

13. Pushed down the stairs Boy in wheelchair pushed down the stairs on Fredrik ll School The boys who pushed the chair were not pupils at the School, but were known to the police. One of the boys told the court that it was meant to be a joke. But the boys tried to put the blame on each other. The victim said: I heard them laughing and that I was to be pushed down the stairs. Court acknowledged similarity to bullying situation. Police failed to take bias motivation into account. The perpetrators were convicted for violence against a defenseless person.

14. Brutally beaten and kicked Four persons, three men and a woman, violence against a man with learning disability in his flat. Court believed perpetrators that they didn’t know about his impairment, although well known address for people with learning impairments. The police failed to take bias motivation into account. The perpetrators were convicted for violence against a defenseless person.

15. Ill treated by four teenagers Two times same day an autistic man (23) wasbrutally beaten. Police failed to take bias motivation into account. The perpetrators were convicted for violence against a defenseless person.

16. Sec. 274 Violence – aggrsirc a) unprovoked b) it wascommittedagainst a defenselessperson, c) it constituted ill treatment d) it was committed by several persons jointly e) the offence was motivated by the victim’s skin color, national or ethnic origin, religion, belief, homosexual orientation or impairment f) a knife or otherparticulardangerous instrument.

17. Court leavesout bias motivation In deciding whether other especially aggravating circumstances exist, particular importance shall be attached to whether the offence has been committed against a defenseless person, whether the offence was motivated by the impairment, whether it was unprovoked, whether it was committed by several persons jointly, and whether it constitutes ill treatment.

18. The construction of the vulnerable victim • rests upon the perception of disabled people as inherently weak and vulnerable persons, who primarily deserves care and social security, not legal protection against discrimination. • A paternalistic view that has legitimated discrimination and withdrawal of fundamental HR throughout history

19. All HC victimsare vulnerable Actually, perpetrators of hate crime usually look for easy targets, and hate crime is more likely to involve multiple perpetrators than non-bias crimes. All victims of hate crime can therefore be characterized as vulnerable.

20. Superiority is the nature of HC Perception of superiority is very much the nature of hate crime. You don’t pick a superior victim, when you want to demonstrate your own superiority.

21. Roulstone: “Vulnerability is still used uncritically in much legal and criminal justice deliberation. The construction of disabled people as vulnerable has arguably weakened the impetus to introducing hate crime provisions and legal justice provisions for disabled people, rather than strengthened them.” Source: Roulstone& Mason-Bish (ed.): Disability, Hatecrime and Violence.

22. Vulnerability triggers hostility • What has to be acknowledged is that disabled people are victims of hate crimes because they are perceived as weak and vulnerable due to impairments and disabilities. • Both on the structural and the individual level, we have been and are treated different from “regular human beings”.

23. Dramaticconsequences “If victims of hate crime suffer from lack of response from authorities and offenders are not prosecuted the whole of society suffers and ultimately democracy fails.” Source: BørgeBrende, Norwegian Minister of Foreign Affairs. The brochure: Words matter. Taking a stand against hate speech - a response from the EEA and Norway Grants. https://www.regjeringen.no/globalassets/upload/UD/EOS-midlene/Brosjyrer/HateSpeechBrochure_FIN_WEB.PDF

24. ECRI failsus, too It its fifth report on Norway, the European Commission against Racism and Intolerance (ECRI) praised the Oslo police for creating a specialized hate crime unit, involving civil society organizations in police officer training and conducting regular dialogue with civil society. ECRI recommended the creation of an electronic system for recording and monitoring racist and homophobic/transphobic incidents and processing them through the judicial system.