The Hate Threshold

Abstract

Hate crime laws have emerged within a climate of penal expansion and identity politics. They contain ideological claims designed to reconfigure social norms and regimes of difference. This article employs the concept of the hate threshold to examine the principles and practices that turn an ordinary crime into a hate crime and the normative messages that flow from this. The hate threshold takes three major elements – emotion, causation and difference – as a framework for analysing how the legal rules are operationalised. Analysis of Australian sentencing aggravation law reveals that courts have set a relatively rigorous standard for offender sentiment and causation. However, the development of a more fluid threshold around the element of difference raises questions about the constitutive implications when law ‘misfires’. This analysis of the law in action provides a material foundation for reflecting on the capacity of hate crime law to engage in larger processes of remoralisation.