Sunday, July 3

Laia Serra: “We are looking for a laboratory case, that of an ultra who goes out to hunt gays, but hatred is daily”

Much is being debated and written these days, as a result of the fatal beating that ended the life of Samuel Luiz, of hate crimes, those that are produced by a discriminatory motivation. From the first moment the Police ruled out the possible homophobic motive of the crime, but later the Government delegation in Galicia opened up to the possibility after the testimonies of the environment were made public. Laia Serra, a criminal lawyer who is an expert in human rights and discrimination, is one of the leading voices in Spain on how these crimes are articulated, which seek to “point out certain groups that do not have the same rights as the rest,” she explains. Lawyer of dozens of cases of this type, Serra assures that the sentences that end up recognizing the discriminatory motive are a minority: “Cases are usually judged by putting four ingredients on the table when in reality there are eight, but of course, first you have to want to see them and then know how to see them “, he assures.

Last hours in Samuel’s life: reconstruction of the murder that raised Spain against homophobic violence

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Hate crimes are those that are committed against certain people for racist, LGTBIphobic, anti-Semitic, aporophobic, sexist reasons … What differentiates an attack on a person who belongs to one of these groups from a hate crime?

These are cases in which an attempt is made to attack someone for discriminatory reasons. These crimes, whether at the level of speech or action, seek to send a message to these groups, signaling that they do not have the right to enjoy the same rights and freedoms as the rest. They want them not to enter the public space, to stop behaving in a certain way, to leave a certain population or to stop expressing their ideas, making their customs or way of life visible. Beyond the group they affect, they are crimes that seek to alter the social values ​​that are part of democracy, such as the expectation of security of these people, freedom, the right to life …

What elements must be taken into account to know if we are facing a hate crime or not?

Motivation is something that logically belongs to the internal forum and sometimes it is difficult to draw conclusions from it, but for a long time we have been working on indices or elements of polarization. In the case of the LGTBI group, the characteristics of the victim, gestures, clothing, expressions of affection, whether or not they carry any symbol, or any distinctive element, but also features of the aggressor, if they belong to certain groups, what insults they have used or if you have shown contempt for the group before; and also other factors such as whether it has occurred on symbolic dates or in places that are part of the daily life of this community.

There is another element that has to do with the type and proportion of violence that is used. When the apparent motive for the crime is not relevant enough, that is, the aggressors deploy brutal violence due to an apparent argument, misunderstanding or disagreement, it is relevant. If a mobile phone issue, as has happened in the case of Samuel, ends the life of the victim, it is to be taken into account. Both the police forces and the judiciary must investigate in all these circumstances to determine if what has motivated it is any discussion or fight or an aversion to the sexual orientation or gender identity of the person.

In Samuel’s case, the Police have ruled out the homophobic motive, although now the Government Delegation in Galicia assures that all hypotheses are open. Is it the usual procedure?

The logic of international standards is that when there is suspicion, the courts have the obligation to deepen this aspect. I do not have enough information on this case, but ruling out a hate crime at the first curve is not very diligent and damages the collective and the memory of the victim. It is essential to investigate and investigate putting all the elements on the table. What is clear is that if you do not want to find the aggravating factor, you will not find it. If you are already predisposed to the aggravation that you go with a purple boa and glitter on your cheeks, many cases will be left out. But if you have the tools to identify and dig a little, logically you will find aggravations in many more cases than are currently being recognized.

There is always a context. There are infinite disagreements and domestic situations that are absolutely a pretext to deploy violence for discriminatory reasons

Are there many failures that prove this type of motivation?

It is extremely difficult for sentences to recognize them. There are several causes, the first is underreporting: there are many cases that are not reported, because the person does not trust the system, does not identify that it is a crime, puts their self-protection before possible reprisals or wants to avoid public exposure of their privacy . But those who do report it end up going through a very complicated maze. Even in cases in which the Public Prosecutor’s Office specialized in hate crimes intervenes or here in Catalonia the Mossos, who have training, detect it, when they land in the judiciary, they usually or do not see the motivation or determine that it is residual.

He said that these types of cases do not usually have a route. What obstacles are usually encountered?

Cases are usually judged by putting four ingredients on the table when in reality there are eight, but of course, first you have to want to see them and then know how to see them. As we said before, it is a mosaic of elements that must be deeply evaluated, simply with a hint there is already an obligation to investigate it. But if you don’t want to see it and at the outset you say ‘oh well, because they said fag that doesn’t mean anything’ and you close that folder, you’re going to leave a lot of cases along the way. In the end, the established routine weighs more than trying to investigate and go further.

In the case of LGTBIphobic motivation, we find a wide range of reasons why cases are rejected, but which are constantly repeated. The aggressors always bring to the trial a friend, a brother, a gay cousin who comes to say that he is not homophobic; When we have insults, such as “fag”, which is very common, we automatically have court decisions that determine that it is such a hackneyed word that we cannot deduce anything from it and many times they come to question whether there is any element that allows us to affirm that the aggressors knew the sexual orientation of the person attacked. We then enter a kind of surreal underworld in which they have come to question us because of the fact that the accusations have not proven the sexual orientation of the attacked, that is, we would have to go with the card that proves what they are … And it is very very common, that with all hate crimes, that the context is used as a pretext to reject the motivation.

What do you mean by context?

Well, most hate crimes happen like this, there is always a context. They are everyday situations. Hate unfolds when crossing a traffic light badly, parking the car I don’t know where, leaving a disco and doing I don’t know what, looking in a certain way, throwing a drink, a problem with the mobile phone … There are infinite disagreements and situations domestic violence that are absolutely a pretext to deploy violence for discriminatory reasons. That is why it is so important to assess the correlation between the pretext and the degree of brutality. It is true that there are situations, especially at night, where things go awry, there are fights and very beastly attacks that do not have a discriminatory motive, but if there is a suspicion of motivation, it must be put on the table.

Wrote in the magazine ‘Píkara’ an article in which he spoke precisely of this, and of what he called “the laboratory case.” What does it mean?

It is like going looking in sexual violence for the man in the raincoat who rapes in an alley. This is how we will judge 1% of sexual violence in this country, but if we are open and understand that there are more behaviors that enter the box, we will have more sanctions. In the case of hate crimes, exactly the same thing happens. The judiciary and the system usually wait for a prototype case. We are looking for a laboratory case, which would be an ultra with a baseball bat that goes out to hunt trans or gay men. This case exists, but it is residual. Daily hatred is the hatred of the average citizen who puts his prejudices into practice and it is precisely what the system does not want to recognize because it implies assuming a structural and social failure.

There is a very stereotypical view of hate crimes

Does the fact that these attacks reveal social LGTBIphobia influence why it costs so much to recognize them?

It is like what happens with gender violence, the parallelism is very clear, a profile of the aggressor is sought, be it a migrant, alcoholic, or without education … and little by little this has been reduced to understand that it is transversal and It can be committed by men of all ages and circumstances. In hate crimes it is the same, but we are still in diapers. There is a very stereotypical view of hate crimes, and therefore judges and society in general are completely reactive to considering that the average man, woman or child is capable not of being prejudiced, but of taking action and exert violence based on these prejudices. It is very difficult to admit this because conceptually it means condemning the son of the neighbor of the 5th and if he is an author of hatred, any average citizen can be an author of hatred. And this is showing the dirty laundry of a society. It is very comfortable for everyone to think that the abusive man is a monster and that the hate crime is committed by the strong man with the baseball bat and suspenders, because that means that the rest of us are not that. And we do not have to worry about all the structural dynamics behind it, because we treat it as a conflict between people who we believe are problematic, misfits, who are outside the norm.

According to witnesses, Samuel was threatened and attacked shouting “fag”. What role should words play in the investigation of these crimes?

They are a fundamental indication. Already the European Court of Human Rights, in the Beauty Solomon case, Spain told him that the fact that the Spanish courts had not taken into consideration and investigated that the aggressors told the victim “shit black” to inquire if there was or not a discriminatory motive had supposed an attack against the victim’s right to justice. In any case, name calling, however frequently used, is a powerful enough clue, though not the only one, to warrant a thorough investigation. What in the end is investigated and there is not? Well, there isn’t. We are not going to force hate crimes where there are none, but of course what we see is a prejudice and a negative a priori which seems to be telling us that all blacks see racism where there is none and LGTBI people see LGTBIphobia everywhere.