Race, gender and mens rea: Do you have to prove a guilty mind, or just the guilty act

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Abstract

It has long been a contentious issue: should 'discriminatory intent' be a requirement for liability in discrimination law? On the one hand, advocates of this policy hold that no man should be branded a discriminator if he acted without any discriminatory intent. However, that policy would defeat the broader societal purpose of the sex and race anti-discrimination legislation: the law seeks to
redress the discriminatory effect of a man's action, regardless of his intent. In effect, this is a law of strict liability i.e. there is no defence of innocent, or even good, motive. This issue has surfaced in a number of cases on direct discrimination and victimisation. The courts have vacillated between the two policies. This article will seek to show that (i) there is in fact little difference
between the two positions, but (ii) the law should one of strict liability, (iii) legal formulas produced by judges on either side of the debate are flawed and confused, and (iv) for the purposes of reputation and damages only, there should be a distinction between the 'innocent' and deliberate discriminator.
Original languageEnglish
Pages (from-to)150-165
Number of pages16
JournalJournal of Civil Liberties
Volume6
Issue number2
Publication statusPublished - 2001

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