[DRAFT] Repeal GA711 "Prevention of Hate Crime"

[Witchcraft and Sorcery]

Hello GA! WS here, and I'm back to take a crack at repealing a resolution I see as falling woefully short of standard in the GA. This is my first resolution as lead author, so I really appreciate feedback.

A group of mysterious hooded figures approach the podium...

The target resolution takes an approach that is fundamentally incompatible with its stated mission. Hate crimes take on many different forms and the prosecution and punishment for crimes defined as hate crimes under GA 711 is entirely dependent on the context in which it takes place. In our view it does not make sense for the GA to have a single resolution mandating a broad-stroke approach to crimes of this very broad type.

Rather, extant and future anti-discrimination law, as well as laws protecting the rights of minority populations such as the ones cited in the draft (and at least a half-dozen more following some very basic research) should and do approach hate crimes against those groups in a manner sensitive to both the particular types of discrimination which affect those groups as well as the social contexts in individual nations.

The General Assembly,

Cognizant of the need to protect marginalized groups in member states from discrimination on the basis of arbitrary and reductive traits,

Concerned, however, with GA 711 “Prevention of Hate Crime” and its approach to this cause, which defines hate crime in such a way as to be both excessively broad and completely ineffective in actually preventing hate crime,

Irate at GA 711’s requirement that all crimes defined as hate crimes be treated universally more severely than other crimes of the same type, something that needlessly strips member nations of the ability to punish hate crimes commensurate with their national social contexts, penal codes, and jurisprudence, enshrined in such resolutions as GA 37 “Fairness in Criminal Trials,”

Finding that discourse around hate crimes is almost entirely informed by social context within a nation, and therefore GA 711 inappropriately creates a legal definition that relies on individual statements of malice or intent to harm based on arbitrary and reductive characteristics divorced from social context through its broad-stroke mandate that all crimes defined as hate crimes be treated the same,

Perplexed at GA 711’s peculiar wording of the evidentiary standards to prove mens rea constitutive of a hate crime, requiring proof “to the same standard otherwise required to show guilt for the relevant act,” which effectively forbids the creation of any legal presumption of hateful motive based on arbitrary and reductive characteristics of the victim,

Worried that in the absence of the above ability to create legal presumptions, it would actually become impossible to prove mens rea for the majority of hate crimes beyond a reasonable doubt or to any standard set for criminal conviction, as criminals do not always openly state or show a motive, and thus a huge number of prosecutions for hate crimes rely on rebuttable legal presumptions wherein once the prosecution proves a crime, it is unnecessary to also prove hateful motive in that instance,

Frustrated that due to the lack of an ability to presume hateful motive, a huge number of hate crimes would be unable to be prosecuted as such, and GA 711’s intent that hate crimes universally be treated more severely would be impossible to enforce, and that the “ominous silence” referenced in the preamble of GA 711 was caused by its author, by repealing GA35 “The Charter of Civil Rights,”

Yet still resolute in the belief that member nations will apply existing civil rights legislation, such as GA 57 “Refugee Protection,” GA 457 “Defending the Rights of Sexual and Gender Minorities,” GA 540 “Supporting People with Disabilities,” and numerous others, to adequately punish hate crimes in a manner consistent with national context and jurisprudence,

Hereby repeals GA 711 “Prevention of Hate Crime.”

Coauthored by Mechanocracy and New Makasta

[Witchcraft and Sorcery]

Drafts will go here.

[The Ice States]

I'm not convinced that the last clause is true. #457 for example does not seem to address hate crime at all. I would strongly oppose as long as the final part of "Frustrated" remains; that is not a flaw with the target.

[Kenmoria]

(OOC: This covers all the points that I mentioned in my unreleased draft, so it must be doing something right. I’ll have more detailed feedback later. For the moment, please insert spaces between “GA” and “123”. It just doesn’t look nice being smushed together like an overburdened sandwich.)

[Witchcraft and Sorcery]

the figures step back from the podium, appearing to speak to each other, though the sounds do not resemble any language you recognize. eventually, one turns back to address the author of the target resolution directly...

Ambassador, we understand your concerns regarding the cited resolutions, but we fear you miss the point we were making. Firstly, any remotely charitable reading of any of those resolutions will show that they clearly contain anti-discrimination language, which can (and probably must) be applied to all avenues, including criminal codes, where such discrimination could occur. Secondly, the clause is worded as such to encourage future authors of civil rights legislation to directly address such matters in a manner consistent with the discrimination faced by a particular group.

As for the last part of "Frustrated," we are ambivalent to it, but it does affect the resolution, as the credibility of its claims are partially dependent on its forthrightness, and we found it objectionable that the same author who wrote the repeal would include language regarding an "ominous silence" that they themselves were responsible for.

(OOC: This covers all the points that I mentioned in my unreleased draft, so it must be doing something right. I’ll have more detailed feedback later. For the moment, please insert spaces between “GA” and “123”. It just doesn’t look nice being smushed together like an overburdened sandwich.)

(OOC: Was not aware you had an unreleased draft, but your arguments in the initial resolution's thread were quite compelling. Will edit the resolution numbers accordingly.)

[The Ice States]

the figures step back from the podium, appearing to speak to each other, though the sounds do not resemble any language you recognize. eventually, one turns back to address the author of the target resolution directly...

Ambassador, we understand your concerns regarding the cited resolutions, but we fear you miss the point we were making. Firstly, any remotely charitable reading of any of those resolutions will show that they clearly contain anti-discrimination language, which can (and probably must) be applied to all avenues, including criminal codes, where such discrimination could occur. Secondly, the clause is worded as such to encourage future authors of civil rights legislation to directly address such matters in a manner consistent with the discrimination faced by a particular group.

As for the last part of "Frustrated," we are ambivalent to it, but it does affect the resolution, as the credibility of its claims are partially dependent on its forthrightness, and we found it objectionable that the same author who wrote the repeal would include language regarding an "ominous silence" that they themselves were responsible for.

"While they do enact anti-discrimination measures, they still do not protect against hate crime specifically. A member nation can still have no legal conception whatsoever of hate crime under the said anti-discrimination resolutions, something the target is meant to prevent. As to the 'Frustrated' clause, we do not see the issue. Indeed, we authored the repeal of the Charter of Civil Rights due to objective flaws in its wording; this does not make subsequent legislation any less credible, and if anything it improves the resolution's credibility to refer to its legislative background in terms of it being a replacement for the Charter of Civil Rights."

~Robert Desak,
World Assembly Ambassador,
The Eternal Union of Devonia and the Ice States.

Ooc: I'd also like clarification on one thing -- is the timing of this repeal with the one of the blood sports resolution coincidental?

[The Overmind]

There are strong arguments here, but the suggestion that hate crimes do not need to be addressed except through piecemeal resolutions about specific arbitrary and reductive characteristics is not well-motivated by the repeal as written. There is no reason to believe they invite any more flexibility into the process of prosecuting hate crimes, and, indeed, addressing them in such a piecemeal manner is likely to both result in less flexibility in, and to leave substantial gaps in, their prosecution. The argument that requiring the ascription of a hate motive to a crime to meet the same standard of evidence as the crime itself likely undermines the resolution's goals is compelling, but only inasmuch as it motivates a replacement with a weaker evidentiary standards, not to the extent that it argues that there is no need for a replacement at all.

[Witchcraft and Sorcery]

"While they do enact anti-discrimination measures, they still do not protect against hate crime specifically. A member nation can still have no legal conception whatsoever of hate crime under the said anti-discrimination resolutions, something the target is meant to prevent. As to the 'Frustrated' clause, we do not see the issue. Indeed, we authored the repeal of the Charter of Civil Rights due to objective flaws in its wording; this does not make subsequent legislation any less credible, and if anything it improves the resolution's credibility to refer to its legislative background in terms of it being a replacement for the Charter of Civil Rights."

~Robert Desak,
World Assembly Ambassador,
The Eternal Union of Devonia and the Ice States.

a different figure steps forward to address ambassador desak...
Mr. Desak, this may be a point where we fundamentally differ in our interpretation of WA legislation and the interactions between various pieces of legislation. Take for example this excerpt from GA 457:

3. ORDERS all member nations to impose exactly the same sanctions or punishments on all organisations which deny any right, power, permission or service to an individual based on their sexuality or gender, as the sanctions or punishments imposed on organisations discriminating on the basis of other arbitrary, reductive criteria (such as, but not limited to, ethnicity, age and religion).

It is our reading that, the intent of this clause is to sanction (i.e. criminalize) any act which negatively targets a member of a sexual or gender minority on the basis of their status as such. Is that not what a hate crime is, per GA 711? By criminalizing the act, but leaving the punishment as a hate crime up to the legal and social context of the nation, we consider resolutions like GA 457 to be a model for anti-discrimination legislation.

There are strong arguments here, but the suggestion that hate crimes do not need to be addressed except through piecemeal resolutions about specific arbitrary and reductive characteristics is not well-motivated by the repeal as written. There is no reason to believe they invite any more flexibility into the process of prosecuting hate crimes, and, indeed, addressing them in such a piecemeal manner is likely to both result in less flexibility in, and to leave substantial gaps in, their prosecution. The argument that requiring the ascription of a hate motive to a crime to meet the same standard of evidence as the crime itself likely undermines the resolution's goals is compelling, but only inasmuch as it motivates a replacement with a weaker evidentiary standards, not to the extent that it argues that there is no need for a replacement at all.

We would challenge the ambassador/s from the Overmind to find a definition of "hate crime" that both universally addresses the problem and remains sensitive to the contexts within individual nations. We are also fundamentally opposed to repealing legislation and replacing it with something that does the exact same thing in the exact same way. The delegation of Witchcraft and Sorcery would not be pursuing a repeal but for a steadfast belief that replacement in a functionally identical form is not a viable solution. If a replacement that offers a novel approach is written, we will consider to support it, but we have our reasons for not doing so.

Ooc: I'd also like clarification on one thing -- is the timing of this repeal with the one of the blood sports resolution coincidental?

OOC: Yes it's coincidental. We (myself, makasta, and spode, not my delegation) were not aware of that repeal until it was posted.

[The Ice States]

"While they do enact anti-discrimination measures, they still do not protect against hate crime specifically. A member nation can still have no legal conception whatsoever of hate crime under the said anti-discrimination resolutions, something the target is meant to prevent. As to the 'Frustrated' clause, we do not see the issue. Indeed, we authored the repeal of the Charter of Civil Rights due to objective flaws in its wording; this does not make subsequent legislation any less credible, and if anything it improves the resolution's credibility to refer to its legislative background in terms of it being a replacement for the Charter of Civil Rights."

~Robert Desak,
World Assembly Ambassador,
The Eternal Union of Devonia and the Ice States.

a different figure steps forward to address ambassador desak...
Mr. Desak, this may be a point where we fundamentally differ in our interpretation of WA legislation and the interactions between various pieces of legislation. Take for example this excerpt from GA 457:

3. ORDERS all member nations to impose exactly the same sanctions or punishments on all organisations which deny any right, power, permission or service to an individual based on their sexuality or gender, as the sanctions or punishments imposed on organisations discriminating on the basis of other arbitrary, reductive criteria (such as, but not limited to, ethnicity, age and religion).

It is our reading that, the intent of this clause is to sanction (i.e. criminalize) any act which negatively targets a member of a sexual or gender minority on the basis of their status as such. Is that not what a hate crime is, per GA 711? By criminalizing the act, but leaving the punishment as a hate crime up to the legal and social context of the nation, we consider resolutions like GA 457 to be a model for anti-discrimination legislation.

"This applies only to organisations, not to individuals. This clause does not address hate crimes committed by individuals, which represents the vast majority of hate crimes."

"To be clear, we believe that the concerns raised in 'Perplexed' and 'Worried' are legitimately plausible; we do not agree with them, but they are not unreasonable arguments. However, we still strongly petition the authoring missions to remove the last part of 'Frustrated'; if it continues to be present, our mission will have no choice but to strongly oppose this draft. If the clause is removed, while we will likely continue to vote against this draft, we will not conduct any efforts to campaign against this repeal otherwise."

~Robert Desak,
World Assembly Ambassador,
The Eternal Union of Devonia and the Ice States.

[Saint Tomas and the Northern Ice Islands]

support due to author

[Barfleur]

"I will focus on the clauses beginning with 'perplexed' and 'worried.' The problem pointed out--that the prosecution, to secure a conviction for a hate crime, must convince the trier of fact that the offense was motivated by hate with the same legal standard as would be required to convict of the underlying offense--is, in my view, not a problem at all. In the immediate sense, the hateful motivation is an element of the crime and must be pled and proved as such. Suppose the Independent Borough of Hohocus defines two different crimes involving the taking of property: theft, which carries a maximum sentence of 4 years and the possibility of probation, and robbery, which carries a mandatory sentence of between 3 and 15 years. Robbery is defined as theft by force or threat of force. If a defendant is convicted of theft, it would be unjust for the court to sentence her for the far more serious crime of robbery without making the requisite finding that she used or threatened force to accomplish the theft. The same applies in the hate crime context. If the government can only prove that the defendant smashed the victim's windows, and not that he did so on account of the victim's Bigtopian heritage, then it has failed to establish that the defendant is guilty of a hate crime. We start from a presumption of innocence and require the prosecution to rebut that presumption to a set legal standard, and if the defendant's punishment is going to be increased (as GA#711 requires), any fact which does this must be treated as an element.

"I then turn to your argument about presumptions regarding hateful motivation. While I accept that permitting the government to benefit from such a presumption might lead to more correct convictions of guilty defendants, it would also lead to many wrongful convictions of innocent defendants. There is no reason to believe that just because the defendant and the victim did not have exactly the same race, skin color, gender, sexual orientation, place of birth, language, accent, etc., there was a hate crime. If the government wishes to tack on additional punishment for the defendant's allegedly hateful motivation, it is reasonable and fair to require the government to make out those facts."

[Simone Republic]

(OOC: This covers all the points that I mentioned in my unreleased draft, so it must be doing something right. I’ll have more detailed feedback later. For the moment, please insert spaces between “GA” and “123”. It just doesn’t look nice being smushed together like an overburdened sandwich.)

I'd back anything which Kenmoria backs, as long as the arguments are similar.

[Fachumonn]

(OOC: This covers all the points that I mentioned in my unreleased draft, so it must be doing something right. I’ll have more detailed feedback later. For the moment, please insert spaces between “GA” and “123”. It just doesn’t look nice being smushed together like an overburdened sandwich.)

I'd back anything which Kenmoria backs, as long as the arguments are similar.

lol usual Kenmoria W.

[Witchcraft and Sorcery]

We thank all the various delegations for their support.

"I will focus on the clauses beginning with 'perplexed' and 'worried.' The problem pointed out--that the prosecution, to secure a conviction for a hate crime, must convince the trier of fact that the offense was motivated by hate with the same legal standard as would be required to convict of the underlying offense--is, in my view, not a problem at all. In the immediate sense, the hateful motivation is an element of the crime and must be pled and proved as such. Suppose the Independent Borough of Hohocus defines two different crimes involving the taking of property: theft, which carries a maximum sentence of 4 years and the possibility of probation, and robbery, which carries a mandatory sentence of between 3 and 15 years. Robbery is defined as theft by force or threat of force. If a defendant is convicted of theft, it would be unjust for the court to sentence her for the far more serious crime of robbery without making the requisite finding that she used or threatened force to accomplish the theft. The same applies in the hate crime context. If the government can only prove that the defendant smashed the victim's windows, and not that he did so on account of the victim's Bigtopian heritage, then it has failed to establish that the defendant is guilty of a hate crime. We start from a presumption of innocence and require the prosecution to rebut that presumption to a set legal standard, and if the defendant's punishment is going to be increased (as GA#711 requires), any fact which does this must be treated as an element.

Ambassador, we saw your argument with the Kenmorian delegation in the previous debate thread and agreed wholeheartedly with their interpretation of this argument. We agree that we start from the presumption of innocence. That fact never changes. The way we understand it, it is your contention that both a) rebuttable presumptions should never exist beyond the presumption of innocence and b)each and every crime charged as a hate crime must contain an overt statement or other display of hate in order to be convicted? If this is so, then you will find that far more criminals charged with hate crimes walk free, or that prosecutors simply decline to prosecute hate crimes because criminals were simply intelligent enough to not overtly act in such a manner as to make it obvious they were targeting someone, for example, because they were gay the second time after being convicted the previous time for anti-gay hate crimes. If my understanding of your argument is correct, you believe that any previous convictions for anti-gay hate crimes should not be admissible when charging someone with an anti-gay hate crime. That is not how most jurisdictions operate.

(OOC: Evidence of a defendant's previous crimes is usually admissible for the purposes of proving motive. That is at least how it works in American courts which is what I'm familiar with - see FRE 404(b)(2) and 609. Saying that they shouldn't be admissible in any WA member state doesn't make sense when it's perfectly in keeping with legitimate systems of law that allow it.)

"I then turn to your argument about presumptions regarding hateful motivation. While I accept that permitting the government to benefit from such a presumption might lead to more correct convictions of guilty defendants, it would also lead to many wrongful convictions of innocent defendants. There is no reason to believe that just because the defendant and the victim did not have exactly the same race, skin color, gender, sexual orientation, place of birth, language, accent, etc., there was a hate crime. If the government wishes to tack on additional punishment for the defendant's allegedly hateful motivation, it is reasonable and fair to require the government to make out those facts."

Anything that makes it easier for prosecutors to prove a crime is going to result in some incorrect convictions. Those are unavoidable. Our contention is that the legislation's standard of proof makes convicting someone of a hate crime literally impossible if the criminal is simply intelligent enough not to overtly say or do anything that makes it obvious they hate women, or gay people, or adherents to a certain religion, once they know that's the standard of proof. That is also why presumptions are rebuttable: they can be disproven by a defendant producing evidence that they were not acting out of a hateful motive, as can evidence of past criminal convictions be rebutted generally. Presumptions of this sort are never conclusory.

[Bisofeyr]

A man of intensely short stature (though nobody can put a precise number on it, every seems to look down on him) walks into the chamber, and glances down at the sheet of paper that the gnomes have begun to hand out. He then gets in the line to speak with the odd figures at the front of the chamber, and when he gets the opportunity to discuss them, he makes the following comment:

"We support this measure, but do hope that strong protections of all peoples comes forward promptly. This form of 'hate-motivated crime' is not a concept we are overtly familiar with in Bisofeyr, but the premise thereof is frightening at best and horrific at worst."

[Terra Magnifica Gloria]

Full support

[Imperium Anglorum]

I think your style should choose either to use sentences or long-af-clauses-that-go-on-forever-with-semicolons-and-other-extensions. See https://imperiumanglorum.wordpress.com/ ... e-repeals/ and https://imperiumanglorum.wordpress.com/ ... -assembly/.

[Witchcraft and Sorcery]

will respond better when I have a chance to sit down and edit but yes ia I know it’s ugly in terms of formatting rn. the long run on sentences un-style is weird but I feel like especially as a new author there’s pressure to conform to existing stylistic trends so I kinda shoehorned my natural writing style into something that didn’t work

at any rate I may try reformatting it into a more natural style, or copying one of those better

[Mechanocracy]

"I will focus on the clauses beginning with 'perplexed' and 'worried.' The problem pointed out--that the prosecution, to secure a conviction for a hate crime, must convince the trier of fact that the offense was motivated by hate with the same legal standard as would be required to convict of the underlying offense--is, in my view, not a problem at all. In the immediate sense, the hateful motivation is an element of the crime and must be pled and proved as such. Suppose the Independent Borough of Hohocus defines two different crimes involving the taking of property: theft, which carries a maximum sentence of 4 years and the possibility of probation, and robbery, which carries a mandatory sentence of between 3 and 15 years. Robbery is defined as theft by force or threat of force. If a defendant is convicted of theft, it would be unjust for the court to sentence her for the far more serious crime of robbery without making the requisite finding that she used or threatened force to accomplish the theft. The same applies in the hate crime context. If the government can only prove that the defendant smashed the victim's windows, and not that he did so on account of the victim's Bigtopian heritage, then it has failed to establish that the defendant is guilty of a hate crime. We start from a presumption of innocence and require the prosecution to rebut that presumption to a set legal standard, and if the defendant's punishment is going to be increased (as GA#711 requires), any fact which does this must be treated as an element.

"I then turn to your argument about presumptions regarding hateful motivation. While I accept that permitting the government to benefit from such a presumption might lead to more correct convictions of guilty defendants, it would also lead to many wrongful convictions of innocent defendants. There is no reason to believe that just because the defendant and the victim did not have exactly the same race, skin color, gender, sexual orientation, place of birth, language, accent, etc., there was a hate crime. If the government wishes to tack on additional punishment for the defendant's allegedly hateful motivation, it is reasonable and fair to require the government to make out those facts."

From the air duct in the draft room, a tinny robotic voice speaks out. It's unclear whether the tinny sound is from the vent, or from the speaker.

I reject the premise that the judicial system must never establish presumptions for motivation. The very goal of establishing a harsher penalty regarding a hate crime rather than a crime committed for its own sake is- when divorced from the notions of punishing malice more than passion- to deter members of the public from doing something. If smashing in the windows of a particular shoe store with robotic workers, for instance, is becoming a major issue, then establishing enhanced and publicized penalties for repeat incidents may be prudent- Even if it may inadvertently result in someone facing a harsher penalty than they would have otherwise. Establishing when that presumption is appropriate, and when the overall social cost of increased penalties outweighs the positives of providing a targeted group with more protection against known malicious actors, is ultimately the responsibility of individual national governments who can best address their unique social contexts, rather than applying an absolutist moral stance to international law and preventing pragmatics from addressing problems as they exist on the ground.

[Witchcraft and Sorcery]

As morning rises over the General Assembly, a hooded figure seems to float out of a back room, though you never heard the door open or close...

We have made some formatting changes to the "Irate" and "Worried" clauses that reflect the suggestions of the ambassador from Imperium Anglorum. In particular, we have decided to go with the (REDACTED)-style of longer, more run-on argumentative clauses, and thus deleted the full stops from those clauses and updated formatting as necessary. This also necessitated splitting off the second half of "Irate" into its own clause, which starts with "Finding." We felt these changes were not substantive enough to warrant being called a new draft, but should be noted all the same.

[Barfleur]

We thank all the various delegations for their support.

"I will focus on the clauses beginning with 'perplexed' and 'worried.' The problem pointed out--that the prosecution, to secure a conviction for a hate crime, must convince the trier of fact that the offense was motivated by hate with the same legal standard as would be required to convict of the underlying offense--is, in my view, not a problem at all. In the immediate sense, the hateful motivation is an element of the crime and must be pled and proved as such. Suppose the Independent Borough of Hohocus defines two different crimes involving the taking of property: theft, which carries a maximum sentence of 4 years and the possibility of probation, and robbery, which carries a mandatory sentence of between 3 and 15 years. Robbery is defined as theft by force or threat of force. If a defendant is convicted of theft, it would be unjust for the court to sentence her for the far more serious crime of robbery without making the requisite finding that she used or threatened force to accomplish the theft. The same applies in the hate crime context. If the government can only prove that the defendant smashed the victim's windows, and not that he did so on account of the victim's Bigtopian heritage, then it has failed to establish that the defendant is guilty of a hate crime. We start from a presumption of innocence and require the prosecution to rebut that presumption to a set legal standard, and if the defendant's punishment is going to be increased (as GA#711 requires), any fact which does this must be treated as an element.

Ambassador, we saw your argument with the Kenmorian delegation in the previous debate thread and agreed wholeheartedly with their interpretation of this argument. We agree that we start from the presumption of innocence. That fact never changes. The way we understand it, it is your contention that both a) rebuttable presumptions should never exist beyond the presumption of innocence and b)each and every crime charged as a hate crime must contain an overt statement or other display of hate in order to be convicted? If this is so, then you will find that far more criminals charged with hate crimes walk free, or that prosecutors simply decline to prosecute hate crimes because criminals were simply intelligent enough to not overtly act in such a manner as to make it obvious they were targeting someone, for example, because they were gay the second time after being convicted the previous time for anti-gay hate crimes. If my understanding of your argument is correct, you believe that any previous convictions for anti-gay hate crimes should not be admissible when charging someone with an anti-gay hate crime. That is not how most jurisdictions operate.

(OOC: Evidence of a defendant's previous crimes is usually admissible for the purposes of proving motive. That is at least how it works in American courts which is what I'm familiar with - see FRE 404(b)(2) and 609. Saying that they shouldn't be admissible in any WA member state doesn't make sense when it's perfectly in keeping with legitimate systems of law that allow it.)

"I then turn to your argument about presumptions regarding hateful motivation. While I accept that permitting the government to benefit from such a presumption might lead to more correct convictions of guilty defendants, it would also lead to many wrongful convictions of innocent defendants. There is no reason to believe that just because the defendant and the victim did not have exactly the same race, skin color, gender, sexual orientation, place of birth, language, accent, etc., there was a hate crime. If the government wishes to tack on additional punishment for the defendant's allegedly hateful motivation, it is reasonable and fair to require the government to make out those facts."

Anything that makes it easier for prosecutors to prove a crime is going to result in some incorrect convictions. Those are unavoidable. Our contention is that the legislation's standard of proof makes convicting someone of a hate crime literally impossible if the criminal is simply intelligent enough not to overtly say or do anything that makes it obvious they hate women, or gay people, or adherents to a certain religion, once they know that's the standard of proof. That is also why presumptions are rebuttable: they can be disproven by a defendant producing evidence that they were not acting out of a hateful motive, as can evidence of past criminal convictions be rebutted generally. Presumptions of this sort are never conclusory.

OOC: I understand what you are referring to, although as someone who plans on joining the defense side of the criminal bar, you won't catch me approving of motive evidence of this kind. To me the line between motive and propensity are extremely blurry in this regard, to the point where, although the evidence will be nominally introduced for the purpose of proving the defendant's hateful motivation, in practice it screams to the trier of fact, "he's done it before, so he's probably done it again!"

IC: "Ah, dear me, I had forgotten you were involved in the original draft. My apologies for that oversight and for needlessly telling you the same opinions twice. I have to disagree with some of your points. First, I do not categorically object to rebuttable presumptions in criminal law, even those which favor the prosecution. For example, in sex offense prosecutions based on the age of the victim, proof that the victim was substantially below the age of consent creates a rebuttable presumption that the defendant knew or reasonably should have known that fact, which is an element of the offense. Another example is drug trafficking. While the sentences meted out for that crime are not particularly severe, it is presumed that a person who has in his or her possession a controlled drug in an amount significantly larger than that which a normal user of that drug would have at any one time creates a rebuttable presumption of intent to supply, whereas simple personal possession is legal.

"Second, I'm not so sure that requiring the prosecution to plead and prove a hateful motivation is truly unworkable. It is frequently the case that those drawn to hateful acts of violence are quite open about their hate, in which case expressed hostility towards the victim will be clearly stated. Other times, they may post a manifesto online or have on in their possession. The fact that someone arrested for assaulting a Bigtopian refugee had downloaded and shared an avowedly anti-Bigtopian manifesto can be used as valid evidence of a hate crime.

"Finally, a defendant's motivation can be inferred from their choice of target. Tragically, in recent years, attacks against religious sites and community centers based around particular ethnicities have become targeted at increasing rates. The fact that someone chose a Violetist shrine as the site of their mass shooting, or a Liliputian Day Parade as the site of their truck attack, can lead to an inference of a hateful motivation."

From the air duct in the draft room, a tinny robotic voice speaks out. It's unclear whether the tinny sound is from the vent, or from the speaker.

I reject the premise that the judicial system must never establish presumptions for motivation. The very goal of establishing a harsher penalty regarding a hate crime rather than a crime committed for its own sake is- when divorced from the notions of punishing malice more than passion- to deter members of the public from doing something. If smashing in the windows of a particular shoe store with robotic workers, for instance, is becoming a major issue, then establishing enhanced and publicized penalties for repeat incidents may be prudent- Even if it may inadvertently result in someone facing a harsher penalty than they would have otherwise. Establishing when that presumption is appropriate, and when the overall social cost of increased penalties outweighs the positives of providing a targeted group with more protection against known malicious actors, is ultimately the responsibility of individual national governments who can best address their unique social contexts, rather than applying an absolutist moral stance to international law and preventing pragmatics from addressing problems as they exist on the ground.

"I will focus on this example of the shoe store, as that is the main point of yours that I have not addressed above. Enhancing penalties for repeat offenders (that is, applying a harsher punishment once the defendant has already been convicted) is very different from using a defendant's prior conviction as proof that he or she is guilty of a new crime. In the latter case, the government is permitted to bear a lower burden of proof and to taint the judge or jury's mind against the defendant absent any connection between the old and new offenses."

[Witchcraft and Sorcery]

Been a little bit. I have time to work over the weekend! Bumping this back up to the first page.

The hooded figures are conducting cryptic rituals in the dog park on vacation so it's just lil ole me for right now.

[Witchcraft and Sorcery]

bump because i want feedback on this! i will need a distraction tomorrow

[Witchcraft and Sorcery]

Bumping again, assuming no further feedback I'll be moving this to last call/submitting very soon.

[The Ice States]

I have drafted a replacement here which should address the point about rebuttable presumptions, among other things: viewtopic.php?f=9&t=549847

I continue to believe strongly that the "ominous silence" line should go; I will not campaign against this repeal as long as it is removed.