by Charles O'Mahony
The Commencement Order for the Offences (Aggravation by Prejudice) (Scotland) Act 2009 was issued last week bringing the Act into force. The legislation creates new statutory offences that protect victims who are attacked on the basis of their disability, sexual orientation or transgender identity in Scotland. Specifically section 1 of the Act makes provision for offences aggravated by prejudice relating to disability (or presumed disability). Section 2 of the Act makes provision for offences aggravated by prejudice relating to sexual orientation (or presumed sexual orientation) or transgender (or presumed transgender) identity. Under the Act where it is proven that an offence was motivated by malice or ill will towards a victim on the basis of their identity the court is required to take that motivation into consideration when determining the sentence to be imposed. This legislation builds upon Scottish law on hate crimes carried out on the basis of race and religion or belief under the Crime and Disorder Act 1998 and the Criminal Justice (Scotland) Act 2003. Similar legislation is in force in England and Wales.
The broadening of hate crime legislation is a positive development in combating violent crime perpetrated against persons on the basis of their identity. However, a legislative response is not the only action required and an effort to address the offending behaviour and rehabilitate offenders is also clearly needed. The Equality and Human Rights Commission has been critical of the lack of national programmes in the UK that seek to rehabilitate the perpetrators of hate crimes.
According to the Equality and Human Rights Commission two thirds of lesbian, gay, bisexual and transgender people in Scotland report being verbally abused or threatened. Over a third report being physically attacked on the basis of their presumed sexual orientation.
The Equality and Human Rights Commission last year published a Report entitled Promoting the Safety and Security of Disabled People, which revealed that many persons with disabilities in the UK are subject to a significant amount of violence and hostility in many areas of every day life. Some of the findings of the Commission’s Report included:
Persons with disabilities are 4 times more likely to be the victim of a crime than non-disabled persons and are 2 times more likely to be the victim of a violent crime.
Persons with disabilities are at higher risk of violence and experience greater levels of targeted violence when compared to non-disabled persons.
Persons with learning disabilities and persons with impaired mental health experience higher levels of targeted violence within the disabled category.
Children with disabilities, young persons, disabled women and particularly those with learning disabilities are at greater risk.
Geographic concentration combined with multiple sets of “minoritised identities” can increase risk.
Abuse mostly takes the form of: physical incidents, verbal incidents, sexual incidents, targeted anti-social behaviour, damage to property/theft, school bullying, incidents perpetrated by statutory agency staff, and cyber bullying.
Targeted violence very often happens on the street and in and around home-based settings, institutional settings, in schools, colleges and at work, and on public transport.
