criminal-law equal-protection
is mistake of fact a defence in various laws relating to protected classes?
<p>If a law for example criminalises intimidating or assaulting someone who suffers from dwarfism , if the person doesn't know that the person is suffering from dwarfism or what dwarfism is but makes fun of the person anyway , would they still be liable ?</p>

<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<p>You have tagged this 'criminal law', so I will stick to that, and avoid non-criminal anti-discrimination regimes.</p>
<p><em>Criminal Code</em>, s. 319 makes it an offence to wilfully incite or promote hatred against an identifiable group.</p>
<p>It does not matter whether the person that is being communicated to is a member of the identifiable group (meaning &quot;any section of the public distinguished by colour, race, religion or ethnic origin&quot;). What matters is a strict <em>mens rea</em> requirement that the communication was done with the <em>intent</em> of promoting or inciting hatred <em>against</em> such a group.</p>
<p>If the accused holds such intent, it is no defence that they mistook the person they were communicating with as not being a member of such a group.</p>
<p>See generally, <em>R. v. Keegstra</em>, [1990] 3 SCR 697.</p>
<h3>Hypothetical laws</h3>
<p>If instead you are asking about what a hypothetical law <em>could</em> require (since you ask, &quot;If a law for example criminalises intimidating or assaulting someone who suffers from dwarfism...&quot;), then as a matter of statutory interpretation, the law could be written in a way that makes the mistake you describe a defence or it could be written in a way that does not allow that defence.</p>
<p>E.g. &quot;Any person who assaults another, knowing that the other person is X, commits an offence...&quot; This phrasing of the law clearly would require the accused to know that the person they have assaulted is in the category X in order for the assault to fall within this specific variant of assault.</p>
<p>E.g. &quot;Any person who assaults a person that is X, regardless of whether they know the other person to be X, commits an offence...&quot; Under this phrasing of the law, knowledge of the status of the target of the assault clearly does not matter.</p>
<p>However, Canadian law has constitutional minimum <em>mens rea</em> requirements for elements of crimes that bring risk of imprisonment. If the offence is punishable by imprisonment, then the variant that essentially removes the <em>mens rea</em> from the element relating to the target's status would be unconstitutional.</p>

<h2>Intimidating or assaulting <em>anyone</em> is against the law</h2>
<p>It doesn’t matter if they have a congenital genetic condition or not.</p>
<h2>Anti-discrimination laws aren't written that way</h2>
<p>They only apply in certain circumstances and they make discrimination on the basis of being or not being in a protected class unlawful. It doesn’t matter if the discriminated against individual is or is not; what matters is if the person doing the discrimination is doing it <em>on that basis</em>.</p>
<p>Outside of those circumstance, people are allowed to be as bigoted as they like - if you don’t want to hang around with people who have dwarfism, you do you.</p>
<h2>Perhaps you are thinking of anti-vilification law?</h2>
<p>In some countries there are laws against vilifying certain groups. However, you are free to insult whoever you like - you just aren’t allowed to use insults about the group. Which means, practically, if you don’t know someone is in a particular group, why would you be using insults that target that particular group anyway? Just stick with the classics: <a href="https://www.youtube.com/watch?v=cAy4zULKFDU" rel="nofollow noreferrer">Your mother was a hamster, and your father stank of elderberries!</a></p>

<p><a href="/questions/tagged/france" class="post-tag" title="show questions tagged &#39;france&#39;" aria-label="show questions tagged &#39;france&#39;" rel="tag" aria-labelledby="tag-france-tooltip-container">france</a> <strong>Yes</strong></p>
<p>All criminal and civil statutes relating to protected classes use a similar wording of <em>vrai ou supposé</em> (actual or assumed). <a href="https://www.legifrance.gouv.fr/codes/section_lc/LEGITEXT000006070719/LEGISCTA000006165460/" rel="nofollow noreferrer">Example</a></p>
<blockquote>
<p>La provocation non publique à la discrimination, à la haine ou à la violence à l'égard d'une personne ou d'un groupe de personnes à raison de leur origine ou de leur appartenance ou de leur non-appartenance, <strong>vraie ou supposée</strong>, à une ethnie, une nation, une prétendue race ou une religion déterminée est punie de (...)</p>
</blockquote>
<blockquote>
<p>Non-public inciting discrimination, hatred or violence against a person or group of persons because of their origin, belonging or non-belonging, <strong>actual or assumed</strong>, in a given ethnic group, nation, so-called race, or religion, is punished by (...)</p>
</blockquote>
<p>For instance, many people are prosecuted for actions where racist motive is an aggravating factor. Let’s say the defendant in an assault case posted a photo on Facebook with the label &quot;all Arabs are thieves, I made this one pay for the others&quot;. That is the clearest evidence the prosecutor could hope for, even if that assertion is clearly mistaken. Obviously it is not true that all Arabs are thieves; furthermore, it might be that the victim is not Arab (they attacked a darker-skin individual, without caring to check if they spoke Arabic, abstained from drinking alcohol, etc. - &quot;Arab&quot; is a cultural characteristic, not a skin tone).</p>
<p><em>Discussing the &quot;so-called race&quot; wording would take an offtopic deep dive into how mainstream French culture perceives race/ethnicity compared to the UK or US. <a href="https://casdinteret.com/2020/06/racism-in-france-what-most-americans-dont-know/" rel="nofollow noreferrer">That link</a> gives a rather good accounting for a general audience (even if some nuance is lost to simplification).</em></p>

<p>U.S.</p>
<p>In the U.S., merely making fun of someone is not a crime, though it can be considered insensitive.  Therefore, whether mistaken or not, merely mocking someone is not a crime.</p>
<p>Instead, if you commit a crime against a person, and it can be proven that your motivation in committing that crime was in part because of the victim's status as a member of a protected class led to the victim to be targeted by the criminal, than the criminal may be charged with a count of &quot;Hate Crime&quot; in addition to the ordinary crime or crimes that were charged.  The language of the law is also written to include the phrase &quot;perceived or otherwise&quot; to denote that the mistaken targeting of the victim for being a member of a protected class that the victim is in fact not is not a defense against a Hate Crime charge.  For example, following the events of 9/11 there was a spike in attacks against Sikh men largely due to the fact that most Adult Sihks wear Turbans and have large beards, both products of a tennent of the Sihk faith, which forbids men from ever cutting their hair.  In the U.S., a Turban and Beard are often associated with Arabic and Islamic culture more than Sikhism, which is a much smaller religion from India and Pakistan.  This lead to Sikh men getting mistaken from Muslim men and assaulted for the actions of the Islamic based terrorists who masterminded the terrorist attacks.  When the perpetrators were arrested, they were charged with a hate crime, since it was clear the attacks were motivated by hatred against Muslims and Arab-Americans, despite the fact that the victims were neither Muslims nor were they Arabic.</p>
<p>The protected classes in the U.S. under federal hate crime laws are defined as race, color, religion, national origin, ethnicity, gender, sexual orientation, gender identity, or disability as of 2009.  Dwarfism is a medical term that refers to a number of conditions that result in an adult human of any sex achieving a full grown height equal to or lesser than 4'10&quot; tall (147 cm) and typically is considered a disability, so would fall under a Hate Crime protection.  However, height, in and of itself, is not a protected class, so a 6'6&quot; (2 m) person attacking someone with medical dwarfism because his victim is smaller than him would not be a hate crime, since a person of average height would also be targeted.  It would have to be proven that the attacker was specifically targeting people for having dwarfism.</p>
<p>It should also be noted that Hate Crime legislation is written in a way to be neutral to a particular protected class based on minority or majority status.  Because of this, a hate crime can occur against victim with white skin so long as the victim's skin color was the reason they were targeted. Additionally, a hate crime cannot occur if the crime targeted someone in part or wholly based on non-protected status.  For example, if a serial killer is targeting African-American Men who are overweight, then it is not a hate crime, since weight is not a protected class despite the other two categories being protected classes.  The U.S. also defines &quot;religion&quot; as a &quot;sincerely held belief&quot; and makes no legal requirements for consideration of whether one is practicing a valid religion beyond that (almost all legal definitions to classify religion are for tax purposes only.  No categorization requires observation of any particular doctrine.).</p>
<p>It should also be noted that protected classes are expanded in matters such as civil laws.  Additionally, states and other law-making bodies may impose their own Hate Crimes laws, which can expand on the defined protected classes.  For example, in Washington D.C., protected status includes &quot;source of income&quot; which largely makes it a Hate Crime to target for crime someone because they work for a political organization (it doesn't have to but being the capitol and having protests frequently outside of the workplace of government agencies, the reason for this inclusion was in the minds of lawmakers when they included it.).</p>
