Petra Bárd 
Erik Uszkiewicz The Coronavirus (COVID-19) pandemic does not only take human lives, but it overburdens the healthcare system, jeopardizes the economy, and leads to the virulence of rumours and fake news. At the same time, we are also witnessing the spread of hatred. Bias motivated incidents and crimes against people with South-East Asian descent are spreading in Europe, and hate crimes occur against Europeans and Americans in Africa. Elderly people who are said to be the most vulnerable from the virus and those who are sick are also stigmatized and harassed.
While a few weeks ago the news were still about entrepreneurs and small business owners with Asian roots, mainly in the retail sector and fast food restaurants, who were forced to close temporarily due to the declining number of customers, the situation deteriorated rapidly, and minorities became the target of crimes and insults everywhere. In Hungary for example after an insult against an Asian university student on the streets of a large city, the rector of the institution was forced to ask townspeople in an open letter not to assault foreign students studying there. According to the rector, “In an emergency, there is a proliferation of insults that adversely affect foreign students studying in the city. This is especially true for students from the Far East, even if they have been living in a Western European country for years.”
Scapegoating during epidemics is nothing new. During the medieval plague, pogroms were organized, based on the conspiracy theory that the disease was deliberately spread by Jews through well poisoning. It is easier for someone with an authoritarian personality to find a scapegoat and believe that people who are different than the majority are at fault. But as Stanley Milgram’s electric shock or Philip Zimbardo’s simulated prison experiments have shown, in a “proper” environment, almost anyone goes to extremes in blaming and punishing the other. Moral panic is easily aroused, it does not require a gang of people with authoritarian personalities along Adorno’s F (fascist) scale. Politicians can easily abuse this phenomenon, and point at certain minorities claiming that others suffer due to their mistakes or even existence, and in case the minority citizens are themselves affected, they should only blame themselves for their misfortune.
Another explanatory theory behind bias incidents during epidemics is the cognitive bias that results from the just-world hypothesis. It is difficult to exist in a world that is fundamentally unfair or incomprehensible: where good people are (also) plagued by natural disasters, disease, and crime. We try to believe – in accordance with the moral of bedtime stories – that the bad will receive their punishment and the good will be rewarded worthily. Belief in a just world is so important to people in maintaining their own mental integrity that they tend to even distort the facts so that they ultimately produce just consequences in line with people’s own values. Thereby they make the world around themselves liveable, plannable, predictable, foreseeable and fair at the same time.
In the 1960s, Melvin J. Lerner studied the distorting effects of a “belief in a just world” and came to the conclusion that there are some typical ways people embed events into their belief system to make them seem more just. One presupposes the existence of some higher power that takes care of restoring the balance and justice in the world. (“Bad things happen for the sake of some higher good.” “God’s ways are unpredictable.” “God will not allow a difficulty unless he has a divine purpose for it.”) Another method is the reinterpretation of the outcomes of and reasons behind certain events. When we witness innocent people’s sufferings, we also suffer and ease this pain by making the victim or his or her personality traits responsible for their misery. (“He is punished because of some sins you committed in your previous life.” “She shouldn’t have gone up to the man’s apartment.” “He who sows reaps.” “She shouldn’t have taken a walk during the pandemic. She belongs to the vulnerable age group.”) Lerner demonstrated this with a series of experiments in which the confederate was tortured with electro-shocks and presented to subjects who were unable to influence what happened. While initially the subjects were disturbed by the sight of suffering, they gradually began to perceive the victim negatively. The greater the degree of suffering, the more negative the tone. This way observers of suffering try to overcome the frustration caused by their helplessness: this is how we want to justify to ourselves that misfortunes cannot happen to us and our loved ones, since they do not happen to decent people.
Historically, medical doctors have also become subjects of hatred. It is hard to accept, but there are a fair number of diseases the origins of which are untraceable, and against which scientists cannot find the cure. According to Baruch Fischhoff’s findings, being aware of the end result unduly increases the chances of presumed predictability. In light of the result, we see things that have happened as if they could not have happened otherwise, and as if they could always have been foreseen. He called the phenomenon creeping determinism. (For example, if we know that someone has had a car accident, their marriage has fallen apart, they have become drug addicts, or if a disease develops into a pandemic, we consider these events to be predictable in terms of driving style, personality traits, peer pressure, culinary and cultural differences.) This may generate hatred against either scientists or politicians whom the layman believes should have dealt with the situation because of the phenomenon of knew-it-all-along effect or hindsight bias.
The law should counteract these phenomena. A humanistic and rational penal policy is capable of curbing revenge, cruelty, brutal instincts, and aggression resulting from a lack of knowledge. Many states go against the will of the majority when they abolish the death penalty, relax the severity of punishments, decriminalize certain behaviours that are considered despicable or immoral by many, and are generally able to enlighten citizens. But at the minimum the state must not supply ammunition to intolerance, play on scapegoats, prejudices, F-personality, and must not to repel citizens back to the Middle Ages.
In contrast, what we are currently witnessing in parallel with the epidemic control, is the stigmatization and humiliation of certain societal groups by the public and in the political discourse too, blaming them to be responsible for the epidemic. These false and erroneous statements and the accusing public discourse, may provide a fertile ground for those hate crimes that target the victims’ identity, and their characteristics that cannot be altered or the change of which would result in a disproportionate harm.
In any case, it does not matter whether a hate crime is committed due to a poor neutralization technique of anxiety or because of hatred instigated by public figures. Whenever someone commits a crime based on a fact or under presumption that the targeted person is a member of a national minority (whether it is a verbal insult or a physical assault), the perpetrator must be prosecuted for a hate crime (violence against a member of a community in the Hungarian criminal regime). In this regard, a factual error, if someone is for instance mistakenly taken for a member of the Chinese community for instance, whereas he or she is of South Korean origin, is irrelevant for the determination of criminal responsibility, and also from the viewpoint of the imposition of punishment.
The triviality of the lack of correlation between national-ethnic origin and virus infestation during a period classified as a pandemic by the World Health Organization (WHO) needs no further explanation.
In the second half of this brief note, we will explain that attacks committed out of bias and apparently provocative anti-social behaviour may be qualified and prosecuted as hate crimes, and specifically in the Hungarian context as violence against a member of a community.
According to Article 216 of the Hungarian Criminal Code any person who displays an apparently anti-social behaviour against others for being part, whether in fact or under presumption, of a national, ethnic, racial or religious group, or of a certain societal group, in particular on the grounds of disability, gender identity or sexual orientation, of aiming to cause panic or to frighten others, or any person who assaults another person with the same bias motives, or compels him or her by force or by threat of force to do, not to do, or to endure something, is punishable for committing the crime of a violence against a member of a community. Thus, when someone assaults a victim – because of his or her presumed national or ethnic origin, viral infection, or age – the perpetrator commits a violence against a member of a community that is considered to be a more severe crime than the underlying base crime, such as bodily injury, and consequently the penalties are also higher.
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The photo was taken by a friend of ours in compulsory home quarantine, and is reproduced with her permission.
The text reads: “A person under epidemiological surveillance lives here. ENTRY IS PROHIBITED. Only official persons are allowed to enter. The person under observation must not leave the apartment without official permission before the lockdown ends. This warning sheet may only be removed with the permission of the authority. Should the above rules be violated, criminal proceedings will be started.”
We are not aware of any Hungarian cases where someone was prosecuted for a hate crime because they have committed a crime against a member of a certain age group or against a patient because of their illness. However, taking into consideration that the respective Hungarian provision quoted supra protects “other societal groups” and therefore provides increased protection for virtually an endless number of groups, elderly people or patients may qualify as a protected group under the sui generis bias crime provision of Article 216.
According to the Hungarian Supreme Court’s guiding criminal decision no. 3/2015, ”[T]he amendment of the law extended the scope of criminal law protection […] to cover all members being part, whether in fact or under presumption, of a community or group who are assaulted […]. The need for this wider protected circle is also reflected in the wording of Article 174/B of Act IV of 1978 on the Criminal Code [the Criminal Code in force at the time, the wording of which has not been changed substantially from our topic’s viewpoint by the Criminal Code currently in force, i.e. Act C of 2012, Article 216], which does not explicitly specify the victim of the crime, but clearly indicates that due to the motive of the criminal offence, victims could be members of a national, ethnic, racial or religious group, or of a certain societal group.”
With the open-ended list of protected characteristics, the legislator clearly intended to provide the possibility of the determination of criminal liability for hate crimes even in cases where crimes were committed out of hatred against a member of a certain societal group, which is not specifically named in the act.
Whether we consider the incorporation of the provision on the violence against a member of a community into the Criminal Code as an identity protection measure, or a minority rights' protection tool, courts must extend the scope of the law to the elderly and the sick. Age discrimination has an extensively developed theory and practice – even though the bulk of the literature is coming from constitutional law scholarship and cases –, and this characteristic can be considered as an essential part of identity. The mentioned groups also constitute a minority, both on a social scale, and also under the specific circumstances of the case.
It cannot be overemphasized that even during exceptional circumstances, certain fundamental rights and values, such as democracy, minimum guarantees in criminal proceedings or respect for human dignity, are of paramount importance and must not be compromised. Hate crimes attack dignity, and it is of great importance to fight against them even during the coronavirus epidemic. The police and the Working Group Against Hate Crimes that brings together experts from different Hungarian non-governmental organizations provide help and the latter also offers legal assistance to victims of bias crimes.
We urge policy and lawmakers to introduce and enforce measures aimed at slowing the pace of the spread of the epidemic in parallel with the rules of non-discriminatory peaceful coexistence.
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The present blog post was authored in the framework of the MTA-ELTE Lendület SPECTRA Research Group (Social prerequisites for the effective fight against bias-motivated crimes through criminal law and minority rights protection, contract number: LP2018-9/2018). Authors are also founders of the European Society of Criminology Working Group on Hate Crimes.
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The views expressed above belong to the authors and do not necessarily represent the views of the Centre for Social Sciences.