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Hate Crime as Recalled: the Prospects of Institutional Re-victimisation?

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Introduction• 2012 FRA report: the experience of victims and witnesses

• Matching with expectations or requirements of criminal justice system,?• or campaigning organisations?

• The EU's Framework Decision on Europe-wide national measures on racist hate crime – no obligation re support measures .

• Extensive and mandatory provision of Article 11 of the Trafficking Directive

• Weak and purely voluntary obligations in both Article 13 of the Framework Decision entitled: "Standing of Victims in Criminal Proceedings."

• CoE "Recommendation on measures to combat discrimination on grounds of sexual orientation or gender identity," adopted March 2010.

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Overview

• This paper discusses the legal and policy dimensions of hate incidents as recalled centred largely upon experiences of victims.

• Potential "secondary victimisation," or "re-victimisation," ?

• Emphasis on "unmasking" discriminatory motivation and combating underreporting of hate crime v understandable reasons for not reporting?

• Re-victimisation: legal and constitutional duties of criminal justice systems, as per domestic and European human rights legal measures, to ensure fair treatment" of victims and other witnesses, as well as offenders.

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"Re-victimisation"? The very idea

• The idea of re-victimisation : memories recalled by victims and other witnesses, in institutionally-regulated contexts- ‘relived anew’

• No mechanical or causal relation -some victims find recalling their experiences therapeutic .

• Even if distressing , it cannot be assumed that the nature and extent of this impact will be identical on every occasion.

• ‘re-victimisation’ affected by individual subjective differences in orientation or attitude.

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Contexts of repetition?• A victim or other witness who reports her experiences will typically

have to repeat her recollections numerous times to various CJS officials, in various different contexts.

• Some contexts will be formal, probably unfamiliar and - in the case of trial testimony - possibly intimidating.

An initial report to a police call taker or other third party reporting centre.

Interviews at the police station with uniformed officers and possibly later by detectives depending on police policies.

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Contexts of repetition?

Identity line ups of suspected perpetrators.

The preparation of both preliminary and a second more comprehensive "victim impact statement" which may be presented orally to court.

Repeated interviews with prosecution lawyers to ascertain reliability, credibility and consistency of potential trial testimony etc.

Testimony during a criminal trial - preliminary hearings, full trial and a later sentencing hearing.

An application for criminal injuries compensation.

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Victims of disability-related incidents

• Hate crime victims with a "learning difficulty," : additional issues -

• Response can be limited -a welfare-related referral to a support service,

• This refusal to take seriously recollections of abuse

• In the UK, if taken seriously a range of additional "special measures" can be brought into play by police, prosecutors and courts to optimise the effectiveness as trial testimony.

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Institutional needs for repetition?

• The burden of proof for a conviction falls only upon the prosecution

• An adversarial criminal justice system, eg.,UK,- implications- ability to repeat consistently?

• From a European-wide perspective - how evidence is gathered, presented, publicly challenged in court, and reviewed within common law and civil law systems – crucial .

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Institutional needs for repetition?

• Some victims of disability-related hate crime feel that negative stereotypes affects determinations of their ability to recall vital details.

• ‘institutional stereotyping ?’

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Avoiding practices of re-victimisation?

• The CJS response to reports of hate incidents crucial

need competent translators to capture victims’ experiences

sensitive police or prosecutors' reactions to manifest cultural differences

Avoiding unwarranted presumptions of incompetence as a trial witness.

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Repetition as "reliving?"

• Our research addresses the subjective "impact" of victims and other witnesses institutional requirements.

• The empirical part involves analysing the results of a series of qualitative semi-structured interviews

• The extensive theoretical part, not time unfold here - model of hate crime as recalled : "re-living" prior perceptions of such incidents.

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Practices of re-victimisation

Failure to adjust stages of the CJS response to the specific needs of, say, victims of disability-related hate crime.

The reinterpretation or exclusion of memories that do not conform to guidelines for the identification and classification of hate incidents.

Institutional reliance on a "hierarchy" of victim-groups –is there prioritisation? where the recollections of one protected group is typically prioritised over those of others, and also possibly because of different offence categories

Aggressive challenges by defence lawyers- discredit testimony

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Theoretical aspects?

• The legal response to hate incidents relies upon a presupposition that recollections provide adequate, credible and compelling evidence of "what really happened" sufficient to justify legal punishment.

• The experiential structure of memory involves re-activation of original perceptions of the incident subject to imitations & modifications.

• Is there a possibility that repetition of experiences involves a process of reliving that, in various ways and with subjectively variable degrees of intensity, repeats the original experience of victimisation.

• Alternative models of memory, based on the idea that recollection involves associations linked to intermediary images, disregards the very possibility of re-victimisation by denying the possibility of reliving past experiences.

• A viable model of re-victimisation draws upon the experiential model whilst also probing its limitations concerning the particular experiences involved.

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Theoretical aspects 2

• The theme of re-victimisation also raises distinct issues concerning:

the victim's experience of limited agency with respect to "intrusive memories" and possible efforts at their repression.

the manifestation of continuing trauma on and inside the feelings and functions of victim's bodies, including insomnia, muscle tension.

the complexities of experiences of coping with an enduring "legacy" of victimisation extending over time: these cannot be simply wished away.

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Theoretical aspects 3 The relation between hate crime "as recalled" and "as perceived"

"as anticipated" and "as signified" in generating and sustaining "fear of crime" which also features one part of the wider communal impact of such crime.

How different patterns of interaction between these interpretive performances each contribute, in their distinctive ways, to the reconstruction of the significance of hate crime.

The continuing power and re-activation of received negative and traditional stereotypes within the CJS response to victims.

The interpretative role of passive constitution of the meaning of places, times and types of person associated with an incident such that these may never be experienced the same way as before.