Pride Antwerp: How is lgbtqia+ criminally protected?
The Antwerp pride was another great success: more than 150,000 people celebrated love and tolerance. The question remains; what criminal protection can one count on as a member of the LGBTQIA+ community?
Aggravating circumstances
Several criminal provisions, e.g., this one on blows and injuries, mention aggravating circumstances. The effect of such aggravating circumstance depends on the exact provisions of the criminal code, but generally they can be summarized as follows: the sentencing range (the margin of appreciation of possible sentences available to the court) changes. This can mean either a higher minimum sentence, a higher maximum sentence, or both at the same time.
Covers, among other things, such aggravating circumstance under section 405quater Criminal Code; disdain or hostility against a person because of his or her gender, gender reassignment or sexual orientation. Specifically, this means that blows and injuries committed from the aforementioned disdain will be more severely punished: in this regard, a doubling of the penalty with a maximum of five years of imprisonment is provided.[1]
The aggravating circumstances, as mentioned above, are however limited to the crimes they actually mention. Therefore, if the sentencing provision does not mention it, the punishment will not be able to be higher, also would a hostility towards the LGBTQIA+ community be at the basis of committing the crime....
But since 2022 also aggravating factors ...
The Dec. 6, 2022 law to make justice more humane, faster and more punitive introduced the aggravating factor. Unlike the aggravating circumstance, the aggravating factor will have no impact on the theoretical sentencing range. The minimum and maximum sentences will remain unchanged. However, the judge will - mandatorily - take the aggravating factor into account when determining the specific sentence, within the limits of the statutory sentencing range.
Article 78to Penal Code provides the general aggravating factor of the discriminatory motive.
The discriminatory motive is a broad term. It includes hatred and disdain toward another because of gender, gender identity, gender expression, gender or gender-affirming interventions, gender characteristics and sexual orientation, etc.
What is important here is that the offender's belief is enough here, without the reality having to effectively meet the aggravating factor. An example is the defamation against a person because the perpetrator thinks that the victim would be homosexual, even if this does not correspond to the victim's actual orientation.
In addition, the aggravating factors apply to any crime in the penal code, even though the exact penal provision makes no mention of such aggravating factor. This is an important difference from the aggravating circumstance. As a result, the discriminatory motive in any crime, such as slander and defamation. What is important here is that when a crime does still explicitly mention an aggravating circumstance, it is preferred. Thus, for these crimes - e.g. blows and injuries - there will be a consequence for the theoretical sentencing range.
With the aggravating factor, the legislature chose to send a clear message: any crime involving acts of hostility and offenses against the LGBTQIA+ community is frowned upon. More severe punishments are possible. In this way, the legislature wishes to legislate an overall protection against hatred, against intolerance and against disdain, .... In this way, one enjoys broad legal protection as well as recognition.
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[1] Another example of aggravating circumstances is the doubling of the minimum penalty for threats against persons of vulnerable age, pregnancy, illness, age, mental or physical infirmity or unworthiness. Here, disdain based on gender, gender reassignment or sexual orientation is not included (Section 330bis Sw.).
