New Europe

A homeless man was recently beaten, stripped of his ragged clothing and left half dead, stranded by the curb of a road leading into a major European city. It took two passers-by who aloofly averted their gaze before a kind-hearted neighbour happened upon the injured man and helped him.

The Good Samaritan is mere biblical fiction, but anti-homeless advocacies across Europe warn that the violence and indifference the parable instructs against have become routine. Though lacking an international precedent to point to, elevating this genre of violence to the category of hate crimes has long been a priority for these advocacies.

Last week, Spain became that precedent—with a tweak. The amendments to the country’s penal code pre-approved on June 16 and sent to parliament for a vote are meant to address this very pattern of attacks on the un-housed, but to do so, the net is cast on the much wider phenomenon of aporophobia, turning into a hate crime any act stemming from “fear or rejection towards the poor, those who lack means or the helpless”, as the term is defined.

Like the amendment it underpins, aporophobia is a Spanish invention. Etymologically translated from the Greek as the “fear of those lacking a way out”, the term was coined in the 1990s by ethicist and philosophy professor Adela Cortina, who for 25 years lobbied the linguistically conservative Royal Spanish Academy (Real Academia de la Lengua Española or RAE) to include it in its authoritative dictionary of the Spanish language. On December 20, 2017 the RAE acquiesced, and barely a week later, a RAE-linked watchdog policing journalistic coinages hailed the neologism as word-of-the-year for 2017, joining a novlangue of woke watchwords such as “microplastic”, “populism” and escrache (a mob protest that involves gathering around a politician’s home for public shame).

Neither the coining of aporophobia nor the making of a hate crime out of it has occurred in Spain by coincidence. The country is at once a haven for 81 million tourists every year—mostly flocking to its southern and eastern shores in search of sun, making tourism the bedrock of Spain’s economy—while also home to a homeless underclass estimated at 40,000, still modest but looming larger since its ranks swelled in the wake of the 2008 recession. With the EU’s migrant crisis seven years later, Spain was allotted a comparatively small quota of under 10,000 refugees to relocate, but its population largely mirrored the European trend in turning more restrictionist and wearier of further inflows.

In a country that so readily welcomes many times that number in terms of wealthy visitors every year, Cortina was genuinely at a loss to explain what she labels as a nativist turn and found an overarching rationale in her fellow Spaniards’ equally dismissive attitude vis-à-vis the homeless.

It isn’t xenophobia, but aporophobia is the gotcha epiphany that boosted her namesake 2017 broadside to bestselling fame, propelled her linguistic invention to the woke jargon and has now elevated anti-homeless violence to the legal category of hate crimes, on par with antisemitism and racism. In our modern-day societies that she describes as hyper-contractual, the organising principle for Cortina isn’t so much one of voluntary exchange as one of reciprocation, with almost every instance of social interaction conditioned on the expectation of receiving some good in return for one’s contribution. Those deemed too destitute to have anything to contribute are altogether redlined out of the societal marketplace, with the inability to fulfil one’s individual needs—most of all putting a roof over one’s head—the ultimate marker of destitution.

By homeless advocates’ own recognition, anti-homeless violence is only the tip of the aporophobic iceberg, the ugly manifestation of our all-too-common aversion towards the poor. This is why their calls to define it as a hate crime often come cloaked in the language of social justice, blaming homelessness squarely on society’s failure to provide universal housing for all—a bug they insist could be easily fixed if only the policy was nudged in a more generous direction. In their view, this stinginess in fact extends to almost every other inequality, which Cortina calls for altogether “abolishing” in the 21st century.

Even FEANTSA, the federation of European advocacies in the space, readily recognises that labelling future anti-homeless attacks as hate crimes would be largely a symbolic feat and by itself will do very little to fix the underlying ill.

While ambitiously declaring war on homelessness, why then, are advocates so invested in the symbolic labelling of anti-homeless violence as a hate crime? Also known as bias crimes, these are legal constructs devised in the 1980s to protect individuals whose conscious membership in a particular group makes them a target of violence from those who may not deem them worthy of equal protection under the law, initially covering religion, race and nationality but eventually growing across most of Europe to encompass gender, disability and sexual orientation. Where it has taken place, this pattern of enlargement has generally invoked the EU’s Charter of Fundamental Rights, which prohibits discrimination against all said features but refrains from wading into the thorny issue of hate crimes.

Whatever the flaws of these enlargements, one common denominator that justified including these new groups under the hate crime umbrella are their members’ self-identification around characteristics that are—if only absent coercion—immutable.

Opponents to further enlargements of hate crime statutes have argued in response that squeezing homelessness into the protected list would consummate the rekindling of this qualifying rationale, potentially allowing any other group subject to violence to claim the same unique protections in the future. That homelessness is a mutable characteristic—one that society in fact leverages a whole arsenal of policies to effectively eradicate—is of little importance to those who advocate for opening this Pandora’s box. What they emphasize instead is how offenders view their homeless victims at the specific time they attack them, regardless of the latter’s chances of eventually overcoming that condition. It doesn’t matter to them either that the lack of a roof over one’s head is a rather flexible characteristic, one that doesn’t apply equally to all—think of those having to sleep in their car or at a relative’s during a stint of joblessness as opposed to those forced to sleep under a bridge or on a sidewalk.

The homeless even lack the cohesiveness that binds together every other group in question, but not even this seems to register in advocates’ enthusiasm for hate crime legislation. Old age or disability may lack the pride conferred by religion or ethnicity, but at least their sole shared characteristics are ones that the elderly and the disabled can uncoerced self-identify around. Said advocates seem nonetheless intent on concocting a homeless in-group mentality, even though their constituents tend to express the opposite feeling of shame at being associated with others in their same temporary condition.

This self-stigma—along with the fear of retribution from the attackers or their own past offences—partly explains why the homeless tend to under-report their own victimisation. This is not to mention the estimated predominance of homeless-on-homeless violence, which could dwarf attacks from housed defendants but goes largely missing in most of the data reported by FEANTSA and its member advocacies.

It is nowhere contested that homelessness entails vulnerability and that depraved minds targeting that sorry condition with wanton violence ought to be punished with maximum severity. The crux of the matter, however, is whether explicit designation in hate crime statutes is an appropriate form of conferring the necessary protection. Leaving aside the mutability and self-stigma around homelessness, legal scholars have argued that the meaning of hate crimes would be diluted if anti-homeless violence were to be categorised as such.

A more appropriate avenue to confer protection, they argue, consists of advising judges and prosecutors as to the added severity with which to punish offenders through non-legislative sentencing guidelines. Besides being easier to implement than legislative changes to criminal law, these guidelines get around the definitional conundrum of what exactly constitutes a hate crime by conferring protection not on the condition of homelessness, but on the vulnerability that derives from it.

This alternative strategy also reckons with the fact that attacks on the homeless are unlike antisemitic or racist attacks in that they’re not discriminatory per se, but rather opportunistic. Anti-homeless attackers seize on victims they deem particularly vulnerable to get away with their violence, but that vulnerability is generic, as opposed to the targeting of a specific ethnicity or religion. This makes them no less depraved, but the two motives should remain legally different. Vulnerable victim sentencing guidelines had been employed to protect the elderly and the disabled in various countries before the campaign to inflate hate crime statutes engulfed them too.

But perhaps the biggest downside to conferring hate crime status is the “targeting of violent criminals for what they think instead of for what they do”, as New York-based criminologist Nicole Gelinas once warned against. When academics Kayla Allison of Indiana University and Brent Kline of Michigan State actually delved into the mind of the standard homeless beater—on average young, with the youngest offender reported in the US aged just 9—they found “strained masculinity” to be a fitting rationale for most violent acts, with attackers projecting on their homeless victims their own fraught search of hegemonic machoism. Thrill-seeking, turf protection and peer validation are among the motives the FEANTSA itself recognises may drive most of these horrendous acts.

None of this contradicts the charge that our society is failing the homeless, nor that it may be growing so depraved that “social origin” may increasingly become a target of discrimination, as initially envisaged by the aforementioned EU Fundamental Rights Charter. It doesn’t even contradict that European countries may be failing to protect the homeless from random, brute violence. But the case for overstretching hate crime statutes to protect new groups remains as lacking as ever, akin to Michael Scott’s infantile rejoinder to his colleague Stanley Hudson in the acclaimed American sitcom The Office. “I am a victim of a hate crime! Michael, that’s not what the phrase means. Well, I hated it a lot, okay?”.

In Spain, it took a pop leftwing philosopher, her vague neologism, and the bourgeois do-goodism it inspired to effect ill-guided change. There’s little standing in the way of other European countries or even EU courts from following suit.

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