Guest Blogger: Audrey Guinchard

It's IntLawGrrls' great pleasure to welcome Dr. Audrey Guinchard (left) as today's guest blogger.
Audrey is a Lecturer in Law and Director of the LL.B./Maîtrise program at University of Essex in Colchester, England. Before joining Essex in 2000, she taught at France's University of Jean Moulin (Lyon III), from which she earned a Ph.D. in Criminal Law upon completion of a thèse entitled « Les enjeux du pouvoir de répression en matière pénale. Du modèle judiciaire à l’attraction d’un système unitaire » ("The power to impose penalties in criminal matters. From the judiciary model towards a unitary criminal system"). Focusing her scholarship on French Law, Comparative Law, Criminal Law and Procedure, and Cybercrime, Audrey is the editor of the blog Cybercrime at Essex, newest addition to our "connection" blogroll at right. In her guest post below, Audrey describes her analysis of hate crime online, the subject of her forthcoming article in the journal Information & Communications Technology Law (2009).
Audrey dedicates her post to 2-time Nobel Prizewinner Marie Sklodowska Curie (below left) (prior IntLawGrrls posts here and here). Audrey writes that Marie Curie

lived at a time where women did not work in science, certainly not at her level of knowledge and skills. She was Polish, emigrated to France, had to learn a new language, adapt to a different society, and overcome prejudices among male colleagues who, with rare exceptions, just considered she was insane. Yet, her discovery of radioactivity, with Pierre Curie, her husband, changed the world as we know it today. During the first world war, she created the first mobile X-ray ambulances, changing the lives of millions of soldiers whose injuries would have killed them had it not been for the X-rays and the new opportunities they offer to surgeons to try new techniques. If, at the time, the dangers were not fully understood (and Marie probably died of them), X-rays are now a common tool for doctors and at high doses, they are used to treat cancer. It is a well deserved
homage that some European funded fellowships are named after her. She was a pioneer and a true European/international woman, interested in improving people's lives wherever they are and whoever they are.

Curie joins other IntLawGrrls transnational foremothers in the list just below our "visiting from ..." map at right.
Heartfelt welcome!

Hate crimes online

(My thanks to IntLawGrrls for this opportunity to guest post)

Hate crime is part of our history. Europe has been plagued by pogroms as much as by witch-hunting and other forms of prejudices; the United States has not escaped either this violence, nor have countries in Asia, Australasia and Africa.
Yet, the expression “hate crime” has only been recently coined. This development illustrates how much perception of prejudice as a potent component of crime has changed during the last three decades. Hate is not any more a “fact of life”, but a harmful and unacceptable feeling to be criminalized.
Even though hatred is universal, hate crime legislation is not. As I detail in my forthcoming article, Hate Crime in Cyberspace: The Challenges of Substantive Criminal Law, this legislation varies from country to country, reflecting the needs and values of each society.
This diversity in national legislation would not matter so much if hate had not found a new medium to spread and reach others across the borders of nation-states. In cyberspace many media -- e-mails, chats, forums, billboards, websites, blogs -- are used to publish or distribute hateful messages, either to individuals or to groups. (credit for map of the Internet)
Hate crime on the Internet evokes hate speech. Yet, to assimilate one with the other would not do justice to the diversity of behaviours encompassed by the expression “hate crime”.
It is in that sense that a protocol that the Council of Europe adopted on 28 January 2003 -- the Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of Acts of a racist and xenophobic nature committed through computer systems -- is misleading. Hate crime online, as offline, does not focus solely on race. It can target sexual orientation, disability, and, in some countries, like Turkey, social class. More importantly, hate crime is not limited to the dissemination of materials, to threats, insults and denial of the Holocaust; rather, it can encompass a variety of offences. These range from computer misuse (hacking and unauthorized acts impairing or with intent to impair the functioning of computers/networks), to fraud criminal damage (if the offence is not limited to tangible objects as in Britain), to harassment (which often starts online and spills to the physical world). With the emergence of virtual communities or virtual worlds, hatred finds new forms of expression.
Indeed, consider the online, virtual community of Second Life. The Front National, the French political party that defends racist and xenophobic ideas, has an office there. Second Life avatars thus can be subjected to hatred, and by this means the human player can suffer offence, even though the player's avatar may possess a different race, sexuality, religion, etc.
In such a context, how do we capture hate crime? What is to be done about criminal damage, even fraud (one example of new opportunities to defraud is here)?
These are developments that countries will have to tackle.

On June 11

On this day in ...
... 1993, in Wisconsin v. Mitchell, the U.S. Supreme Court upheld a state statute that enhanced the otherwise-maximum penalty for offenses held to be hate crimes. In an opinion by Chief Justice William H. Rehnquist, the Court held that adding on to the punishment at issue, aggravated battery, was not “aimed at conduct unprotected by the First Amendment”; rather, what was ““single[d] out for enhancement” was “bias inspired conduct because this conduct is thought to inflict greater individual and societal harm.”
... 1880, U.S. Rep. Jeannette Rankin (R-Mont.) (right), a suffragist and peace activist who in 1916 became the 1st woman elected to Congress, was born in Missoula, Montana. (photo credit) In 1912, she began working as the field secretary of the National American Woman Suffrage Association, and was among the thousands of suffragists at the 1913 suffrage march in Washington, D.C. As a representative, she strongly opposed and voted against U.S. involvement in World War I. Having lost re-election in 1918, Rankin ran again in 1940, and won on an antiwar platform. She was the only representative to vote against U.S. entry into the war after the bombing of Pearl Harbor, saying,

'As a woman I can’t go to war, and I refuse to send anyone else.'

Although Rankin did not run running for re-election in 1942, she remained politically active for the rest of her life. She was the 1st vice-president of the American Civil Liberties Union, and in January 1968, when she was 87, she led the Jeannette Rankin Brigade, a 5,000-person strong march on Washington to protest the Vietnam War. She died in 1973.

(Prior June 11 posts are here and here.)

On October 6

On this day in ...
... 1999, by its Resolution 54/4, the U.N. General Assembly adopted the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women. The treaty, which establishes a mechanism for monitoring compliance with the principal convention, was opened for signature 2 months later, and entered into force on December 22, 2000. It has 90 states parties; not among them is the United States, which is not a party to the principal convention, either.
... 1998 (10 years ago today), late at night, after luring him out of a bar, attackers beat and tied to a post Matthew Shepard (below right), 21, a gay student at the University of Wyoming in Laramie. He was unconscious when discovered the following evening, and died on October 12. Shepard's death provoked outrage throughout the country; President Bill Clinton declared: "[C]rimes of hate and crimes of violence cannot be tolerated in our country." In 2007, the Matthew Shepard Act, federal legislation targeting hate crimes based on a victim's perceived sexual orientation passed the Senate but failed to become law. This epilogue takes a look at Laramie 10 years later.

On this day

On April 7, ...
... 1970, Josina Machel (left), a fighter for the Liberation Front of Mozambique (FRELIMO), died in a gun battle with Portuguese troops. She was the wife and "comrade-in-arms" of Samora Machel, the president of FRELIMO, who would become the 1st President of Mozambique when it gained its independence in 1975. (He later married Graça Machel; as we've posted, she later would become a U.N. Special Rapporteur on the plight of child soldiers.) In Josina's honor Mozambicans observe Women's Day every April 7.
... 2003 (5 years ago today), in Virginia v. Black, the U.S. Supreme Court affirmed convictions of 2 persons charged with violating a state's hate crimes law, which prohibited "any person … with the intent of intimidating any person or group … to burn … a cross on the property of another, a highway or other public place," and further provided that cross burning "shall be prima facie evidence of an intent to intimidate a person or group." Based on a principal opinion by Justice Sandra Day O'Connor (right) a divided Court rebuffed defendants' claim that the statute violated the free speech guarantees of the 1st Amendment.

Legislating against hate

As is often the case with political compromise, no side is entirely happy with recommendations for criminalization of hateful speech contained in the Framework decision on Racism and Xenophobia recently adopted by the Council of the European Union. The document calls on the 27 EU member states to act, within the next 2 years, make the following "intentional conduct" crimes punishable by 1-3 years in prison:
First, hate speech:

Publicly inciting to violence or hatred even by dissemination or distribution of tracts, pictures or other material, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin.

Second, acts often given the shorthand name "Holocaust denial":

Publicly condoning, denying or grossly trivialising: (1) crimes of genocide, crimes against humanity and war crimes as defined in the Statute of the International Criminal Court (Articles 6, 7 and 8) directed at a group of persons or a member of such a group defined by reference to race, colour, religion, descent or ethnic origin; and (2) crimes defined by the Tribunal of Nuremberg (Article 6 of the Charter of the International Military Tribunal, London Agreement of 1945) directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or ethnic origin.

Although proponents praised the measure, in some countries national laws already are tougher. Some critics expressed concern that the phrasing of this last paragraph -- inserted to appease Britain, Ireland, and Scandinavian countries -- invites loopholes:

Member states may choose to punish only conduct which is either carried out in a manner likely to disturb public order or which is threatening, abusive or insulting.

Others cautioned that the proposal might invite suppression of speech that ought to be protected.
Sparking controversy on the other side of the Atlantic, meanwhile, is legislation that criminalizes not hateful speech, but hateful acts: soon after the U.S. House of Representatives voted 237-180 to add gender and sexual orientation to the categories that federal law already protects against hate crimes, the White House signaled that if the bill passes the Senate, President George W. Bush will veto it. Federal protection of these 2 groups is not needed, the White House notice maintained; conversely, it further faulted the bill for leaving out other groups, such as the elderly and military personnel. The threatened veto would be the 3d of Bush's 6-year tenure. The other 2? Stem cell research and troop withdrawal from Iraq.