The law can, ‘by its silences’ exclude groups from protection
afforded to others, such as through the failure to include characteristics like
sexual orientation or gender in hate crime legislation, leaving the unnamed
groups vulnerable to hate crime and to the ‘ideological effect of indicating
that they are unworthy of protection, and therefore legitimate victims’ (Perry 2001:
198). In legislating for those who are recognised as a ‘legitimate’ victim, the
State, Perry argues, ‘tells a story’ with the moral that it is ‘acceptable to
assault the legislatively unnamed victim’ (2001: 207). She suggests that this
approach creates a legislative justification for the ‘violent marginalization’
of excluded groups, and in the context of the exclusion of gender, sends the
message that women are seen as ‘individual rather than collective victims’
(2001: 210). This exclusion then permeates the organs of the State, leaving
those who are isolated by hate crime legislation unprotected by those tasked
with defending them (Perry 2001). Certainly, such exclusions can be understood
to construct some victims and some communities as less worthy of protection
than others.
What then of a system where there is no hate crime
legislation? In Ireland, the only relevant legislation prohibits hate speech,
is drawn narrowly and has limited (if any) effect (ECRI
2002 and 2007). Nonetheless, the Irish State has thus far rejected calls
from both domestic and international sources to introduce legislation which
would recognise the hate element of other offences. From the perspective of
victims and commonly targeted communities, we argue, this absence of hate crime
legislation can also be understood as a legislative ‘permission to hate’.
This chapter will examine the character, effectiveness and
interrelationship of international and national critiques of Ireland’s legislative
‘permission to hate’. Ireland has been intractable in its position that the
system is fully capable of addressing hate crime, while lacking a statutory
provision requiring it to do so. Research recently completed by the authors of
this chapter puts pay to this notion, finding that the hate element of crime is
effectively ‘disappeared’ at multiple points in the criminal justice process
(Haynes et al 2015). Nonetheless, we will show that neither internal nor
international pressure to address the legislative lacuna have been successful,
raising questions regarding the possibility of globalising responses to hate
crime in the face of seemingly impassive state intransigence.