The legislator is not right every time. Often that which seemed right and proper at one time ceased to be right and therefore society cannot remain still. Without many of the advances we enjoy today, what we call rights would not exist.
For example, in Venezuela, slavery, racial segregation or the submission of women to their husbands would still be legal. However, sometimes it does not take long for us to realize that some legal instruments have not been sufficient to respond to a situation facing a country and although we could read the constitutional framework stating that we should expect the legislator to decide to amend or suppress a law or that the judiciary judge it, in some areas, especially in the area of human rights there must be a social movement that denounces and demands a new normative text.
This possibility, that of promoting legislative reform, is always in the hands of the society that maintains the legal initiative but can also decide to go before the judicial instance to request the declaration of nullity of the instrument or an interpretation of the Constitution that promotes a reform or an extension of the framework that the legislator developed. In the same way, if this is possible in ordinary times before the Constituted Power, it seems to be expanded in a constituent moment, where all the people are summoned to decide which are the foundations of the social agreement to which they submit.
For this reason, I consider it legally possible and politically urgent that we call ourselves to the necessity of revising the Law against Hate, for Peaceful Coexistence and Tolerance, whose content incorporates a new concept in our Criminal Law, while our country has been impacted by acts of this nature that have cost the life, physical and moral integrity, as well as the heritage of a large group of citizens.
The dimension of the problem
Hate crimes are one of the criminal categories that have been of greatest interest to international organizations in recent years. This derives from the development of rights corresponding to particularly vulnerable groups as well as from the affirmation of non-discrimination as a fundamental pillar. Likewise, because of the increasingly frequent reports of especially violent acts against populations differentiated by religious, cultural, sexual orientation, gender or ethnic perception.
For this reason, in the international literature we will find many references and many documents designed to protect LGBTI populations, immigrants or people with disabilities.
A particularly intense form of these acts in recent years has been associated with the use of social networks that generate in users a sense of anonymity that favors extreme postures and messages that they do not usually assume in person. This is called “cyberhate” or “cyber hate”.
In Venezuela these crimes had an extremely high incidence during the time of the so-called guarimbas, data collected on July 27, 2017 by Misión Verdad indicate that “according to the Ombudsman’s Office, in the more than 100 days of protests by the Venezuelan opposition, more than 30 hate crimes have been registered, among which are the aforementioned events, such as the disappearance, torture and later lifeless appearance of Pedro Josué Carrillo in Barquisimeto, Lara, because they are ” Chavista “.
This is the context that generated the need to incorporate a new type of crime into the Venezuelan legal system, since hate crimes such as those we have described are multiple offensive attacks on individual and collective rights, so they should not be treated as ordinary crimes.
Hate crimes do not exist legally
A reading of the Law against Hate, for Peaceful Coexistence and Tolerance, will allow us to demonstrate that in this text hate crimes were not defined or typified but that an aggravating factor was established for reasons of hatred and intolerance, which, according to article 21, must be applied to the penalties provided for in criminal laws, ordering that the crimes be punished with the higher end of the standard quantum.
This creates two problems for us: first, this rule is incorporated into an extremely disorderly and outdated penal system where attacks on physical and moral integrity are minimally punished. Then it maintains in the ordinary rule acts that have been recognized as absolutely intolerable for violating fundamental norms of democratic societies.
What is hate?
If we have stated that the constituent element of hate crime lies in motivation, it is also important to see that hatred is a legal category with certain content. In order to understand it, we include a Spanish justice decision that states that hatred is the “deliberate intention to belittle and discriminate against individuals or groups on the basis of any personal condition or circumstance”. (Sentence STC 214/1191 of 11 November 1991).
Similarly, we refer to the origin of the concept by recalling that the term hate crime arose in the United States in 1985, when a wave of crimes based on racial, ethnic and nationalist prejudices were investigated by the Federal Bureau of Investigation (FBI).
Initially, this legal literature was used, in particular, to refer to crimes against racial, ethnic or national groups. From then on, the different movements for the promotion and protection of human rights in the United States incorporated it into their discourse and expanded it to include other marginalized groups.
In the opinion of Aguilar G. and Miguel A., in their book “Investigation and prosecution of hate crimes and discrimination in the assumptions of homophobia and transphobia” published in 2014, the concurrence of one or several of these factors will be sufficient to guide the investigation in order to reveal the existence of a discriminatory motivation in the crime committed, thus, among those polarization factors for the accreditation of motivation we find:
The victim belongs to a minority group or group.
Discrimination by association.
Discriminatory expressions or comments made by the perpetrator.
Tattoos or clothing worn by the perpetrator of the acts because of their symbology related to hatred.
Propaganda, flags or banners that may be carried by the perpetrator of the facts or that may be found in his registered home.
Police record of the suspect
Incident occurring near a place of worship
Suspect’s relationship with groups or associations characterized by hatred.
The apparent gratuitousness of violent acts.
Historical enmity between the members of the victim’s group and the alleged perpetrator.
When the events occur on a day, time or place where an event is commemorated or is a symbol for the perpetrator.
Analysis of your mobile phone or computers.
It is usual that a hate crime also comes with additional actions that denote a degree of exaggerated and excessive exuberance: 50 stabbings, dozens of shots or even more extreme measures.
In a similar way they are described by Beatriz Vallet Gomar who defines them as:
“Any aggression against a person, a group of persons, or their property, motivated by prejudice against their race, nationality, ethnicity, sexual orientation, gender, religion or disability. The fundamental reasons why these crimes differ from ordinary crimes are as follows: (1) the victim has a symbolic status, i.e. he or she is not attacked for who he or she is but for what he or she represents. Thus, this victim could be interchangeable with any other victim who shares the same characteristics; (2) the intent of this type of violence is not only to hurt the victim, but to convey to her entire community the message that they are not welcome; (3) these crimes often involve multiple aggressors. In short, hate crimes have negative effects both on the victim, on the community to which the victim belongs, and on society in general”.
Hence, we can observe that hate crimes are multi-offensive acts that attempt against at least:
The right to life or property
The right to personal integrity
The right to non-discrimination
Prohibition of torture, cruel and degrading treatment
These are the considerations that lead us to affirm that the Law against Hate, for Peaceful Coexistence and Tolerance, is legally insufficient to create a framework of prevention and sanction, adjusted to the constitutional and international principles of hate crimes that understand them as a violation of Human Rights deeply related to crimes against humanity, that is, as one of the most repudiable acts that a person can commit.
Inadequate protection and support for victims
In all evidence, the lack of an adequate legal framework does not mean that events do not occur in reality. On the contrary, it only makes it more difficult for the State to comply with the obligations of investigation, trial, punishment, reparation and restoration of statutes in favour of the victims when they occur.
This is the situation today, characterized by the duality of acts referred to in a Constitutional Law, but which continue to be the responsibility of the State.
The quantum of the penalty that would foreseeably be applied if the facts and their authorship were proven is what determines the exercise of the State’s ius puniendi. This is equivalent to having few certain procedural tools at the disposal of victims who tend to present important elements of risk in reality, such as having been attacked in places where they habitually go, such as work or the educational centre, or in the vicinity of their homes.
In this regard, it is extremely important to consider the design of appropriate protection measures that respond to the particular motivations of this type of aggressor. Let us remember that in general, those who commit these acts act because (a) they have a perception of power and it triggers adrenaline to attack those they believe to be inferior and vulnerable; (b) they are afraid of the existence of a group; (c) they wish to punish a group of people; (d) they feel it is their mission to eliminate one or more groups.
Therefore, the legislation must provide an immediate, comprehensive framework of protection, broad enough to mean a guarantee of non-repetition and the reduction of the risks to which the person who has already been a victim or is threatened with being a victim of some of these acts is exposed.
Reforming the law
The reform of the acts it dictates is a possibility open to all organs and entities of the State. Without a doubt, the National Constituent Assembly can do it with its constitutional laws and within its supremacy it can choose how to do it.
Then it could advance by modifying the Law against Hate, for Peaceful Coexistence and Tolerance to provide it with the minimum clauses required by the system of protection against hatred, or by dictating a constitutional law that specifically refers to hate crimes and repeals only Article 21.
The way in which the situation is amended is an aspect that will be the responsibility of the members of the official body, at the same time that it must be a requirement of the entire population, that legislation be adopted capable of effectively guaranteeing them the ability to develop as a person without being a victim of violence or discrimination because of their ethnic or national affiliation, as well as the decisions they made, within the law throughout their lives, related to political positions, religious convictions, ways of expressing their sexuality, and so on.
Finally, in my opinion, it is fundamentally important that this debate be given the importance and breadth it deserves, because hatred is not only motivated by political convictions; it is not only a trivial threat in social networks but also the rupture of all the fundamentals of coexistence and therefore a danger for everyone.
Translation by Internationalist 360°