On another post, Plunky writes in comments:
I ain’t a lawyer, but I don’t think we should have laws about hate crimes. It is the act of the crime that is reprehensible, not whether the crime occurred because of prejudice, stupidity, whatever. Judges and juries have been weighing the motives of criminals for a long time, and they should be able to keep doing it without legislation that makes some _thoughts_ more criminal than others.
Essentially, I think hate crime laws are a violation of the First Amendment. They take something that is not criminal: hating a certain minority/class/etc and then using that to compound criminal sentencing. It is not illegal to hate women. It is illegal to rape women. If a person is on trial for raping a woman, it should not matter that he hated all women. He should be punished for the one illegal act, not his legal thoughts.
I think Plunky’s analysis is mistaken, because it ignores that many “hate crimes” are crimes not just against an individual, but also against an entire community. If I build a small campfire and roast some hot dogs on Woody Allen’s lawn because I’m hungry, that should be recognized as a different crime from burning a cross on Woody’s lawn because I want to tell all the area Jews that they might be assaulted or killed if they don’t move out.
I agree with David at Orcinus:
Bias-crime laws no more create “thought crimes” than do any other laws consigning greater punishments for crimes committed under certain species of mens rea (or the mental state of the perpetrator), including anti-terrorism laws. Differences in intent and motive can make the difference between first-degree murder and manslaughter. Enhanced punishments are especially warranted when crimes are believed to cause greater harm — and hate crimes quantifiably do so. These are standard features of criminal law, and no more create “thought crimes” than do laws providing the death penalty for first-degree murder.
More to the point (and as I also argue at length in Death on the Fourth of July), hate-crimes laws are not about taking away anyone’s freedoms — rather, they are about ensuring freedoms for millions of Americans.
As I point out in the book, hate crimes have the fully intended effect of driving away and deterring the presence of any kind of hated minority — racial, religious, or sexual. They are essentially acts of terrorism directed at entire communities of people, and they are message crimes: “Keep out.”
Amanda once suggested that we should start using the term “domestic terrorism” rather than “hate crime,” because that better explains why it is that these crimes should be punishable. I think she’s right.
[Cross-posted at Creative Destruction, where moderation is less heavy-handed.].
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Why is it that the people most devoted to being against hate crime legislation are the ones least likely to suffer from it? Why is it that they fail to get that it’s designed to cause fear and intimidation not just in the one person, but in their entire group?
They attacked that girl because she was black, and because she was female. They didn’t attack her because they knew her, because they knew her personally, because they hated her personally. Her skin color and her gender removed her personhood in their opinion, and they were able to attack her because of that. They believe certain things about black people, about black women, that they do not believe about white women. They believe these things even though they do not know, probably, any black women, or, indeed—all black women. It’s not like they conducted a study of all black women in the country and coincidentally came up with something that neatly dovetailed with their preconcieved notions. They hated her without knowing her. They acted on that hatred. Every woman out there with the same skin color is in dange around them, while others might not be. No black woman is safe from their racism, their bigotry and their hatred. With black women as their punching bags, they might in fact not be a danger to white women. What’s not to understand? They attacked someone because they hated her, but they couldn’t hate her because they didn’t know her. (Even in they had, of course, there’d still be no reason.)
What disturbs is that for all the theory that gets used to obscure the subject, rape is a hate crime but few people are willing to admit that women are hated so much, so commonly, and so invisibly in society. Inter racial rape makes it visible for a minute, until theory comes out to justify muddying the clarity yet again.
Plunky:
“He should be punished for the one illegal act, not his legal thoughts.”
Plunky, have you ever heard the old legal term “murder, with malice aforethought”?
I’m sure you probably haven’t. It is an archaic term that only those of a certain age are familiar with.
Under today’s legal terms, this statement is now known as “murder in the first degree/capital murder”. Decades ago if a person was tried and convicted for planning (thinking) the crime up, going about doing it (luring a person to their home), and killing the person (strangling them, shooting them, raping and murdering them), then that person was charged with murder with malice, aforethought.
They thought out how they would do the crime; they planned on how they would do the crime; they followed through on doing the crime.
Unlike manslaughter crimes (which would be killing someone in a drunken brawl in a nightclub because they stepped on your foot) or crimes of passion (a husband or wife coming home and finding the offending spouse, en flagrante, and then killing them), capital murder/first degree murders would normally cover crimes that are “thought out”: planned, plotted and followed through on—arson and murder, kidnapping and murder, rape and murder.
Plunky:
“Essentially, I think hate crime laws are a violation of the first amendment.”
Have you read the first amendment, Plunky?
Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free speech thereof; or abridging the freedom of speech, or of the press, or of the right of the people peacably to assemble, and to petition the Government for redress of grievances.”
I see no where in the first amendment where a person’s “thoughts” are protected. This amendment protects what comes out of your mouth, not what is going on in your mind. Example: you may “think” up some idea for a new invention, let’s say the Model T. Someone across town is also “thinking” up this idea of the same type of invention. They put their idea/thought down on paper, work it through, get the plans all drawn up, build a prototype, and take it to the US Patent Office and get it patented. You, on the other hand did not do all this before the other person did.
Are you trying to say that since they got their “idea/thought” to the patent office first, that they stole your idea?
And as far as hate crimes go, hate crimes are crimes that are specifically against entire groups of people: Blacks, gays, disabled, national origin, religion.
Ever heard of the fourteenth amendment, plunky?
Amendment XIV: Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
“Due process of law”.
The American South practiced hate crimes on a massive scale for decades, plunky.
The mass lynchings of black citizens and theft of their property in cities like Tulsa, Oklahoma; Rosewood, Florida; and Wilmington, North Carolina. In all of these mass lynchings, black men, women and children were killed, women raped, property destroyed and entire towns of black people driven out of their homes and communities, with the white mobs stealing the property blacks were forced to flee and leave behind.
Want to try and tell their descendants that these were not hate crimes, plunky?
I am sure the great-grandchildren and grandchildren of these murdered people would beg to differ with you.
I quite agree with the need for a different framing. No matter how many times we explain the rationale, people are still going to see the name and assume it’s a thought crime. I actually agreed with Plunky’s take on the issue for a long time until I read a detailed explanation (by Amanda Marcotte, IIRC). I’m not sure if “domestic terrorism” is necessarily the best choice, because it might come off as a cheap attempt to hitch our wagon to anti-Islamic-terrorism sentiment.
ginmar – you are so money when you say:
I think of this guy several years back (I forgot who it was, or where exactly I saw it) – a nice WASP man, saying “I’m not afraid of hate crimes, I’m afraid of random acts of violence.” Well, yeah, you’re not afraid of hate crimes because you’re not targeted in hate crimes. Here’s a social experiment you don’t have to do, take a white person and a black person, and ask each if they’d be more afraid of a person killing people randomly on the street or a person specifically killing black people on the streets.
Oy, it’s all such a juvenile thought process behind such opposition – the old “aren’t all crimes motivated by hate”. I third Amanda Marcotte’s suggestion of calling it domestic terrorism.
Was this inspired by the debate on my racist rape post. Because I was thinking of putting something up on this exact topic.
Amp, though I did like the example you used to illustrate your point, I think it should be pointed out that even setting up a pile of DVDs of Woody Allen’s recent films on his front lawn and lighting them on fire in order to show how much you hate his output these past few years, or even setting fire to his house for the same reason, is still very different than the cross-burning.
Which is why the term “domestic terrorism” would be so useful.
Rachel: Yes, it was inspired by that discussion. Go ahead and post your post, if you’d like – it never hurts to have more than one blogger on a topic!
Crys T: Yes, I agree.
There’s a famous case in New Zealand where a woman was convicted of murder for poisoning her husband who was abusing her. The jury didn’t accept any defence to manslaughter, or . The same month a man was convicted of manslaughter rather than murder of his girlfriend. She had hidden his drug stash, and so he successfully argued provocation.
The current laws about intent and crimes generally uphold the power structures in scoiety – they don’t challenge them. To me that’s not surprising, because the state has a huge role in maintaining those power structures. I’m not saying that this is a reason in and of itself to rule out hate crime legislation, but I do think we’re screwed if our starting point is the belief that the state is on our side.
Wow, Ann. That’s a lot of assumptions and personal attacks you got there.
Raznor:
Well, yeah, you’re not afraid of hate crimes because you’re not targeted in hate crimes.
You don’t think that an assault of a white man by a black man might not be motivated by a hatred of white people?
As I’ve said, I think there are excellent arguments FOR the hate crime statutes; though I am on the “they’re bad” side myself, I believe the answer is far from clear. I am fairly busy today with a case. but I will try to post some basic explanations of the other side, seeing as they are often presented incorrectly, as straw men. You may find them interesting–or not. But if you’re going to respond to them, and expect me to defend them, I’d request that you summarize them accurately.
This will, by necessity, be theoretical in nature. If you don’t want to read theory, don’t read my posts in this thread.
FIRST AMENDMENT ARGUMENT: I don’t think this is an especially powerful one on its own. But it ties into the evidentiary argument against hate crime statutes, and thus serves as a decent general entry into the subject.
First, a statement of fact:
Hating ____ is not illegal. Nor is hating ____ and discussing it, writing about it, etc. Nor is hating _____ and trying to convince others; you can stand on a soapbox in central square and proclaim the inferiority of _______.
All those issues above are essentially covered by the first amendment as interpreted.** You will hopefully trust me on this. If you want to argue about specifics I can explain more (there are, as always, exceptions) but generally this statement is true as written.
**(Note: Sometimes people forget the role of the supremes; it’s easy to forget if you’re not a lawyer–what governs our behavior is actually not the plain text of the constitution. Rather, we’re bound by the Supreme Court’s interpretation of the Constitution. If you claim the constitution as authority for your position, then inherent in that claim is the establishment and powers of the supermes. Thus, ALSO inherent in that claim is an acknowledgement of the Supreme Court’s “final word” on what the constitution means. That’s one reason why lawyers often tend to cite Supreme Court cases instead of the constitutonal language in many circumstance. My interpretation, and your interpretation, aren’t really all that relevant if we’re talking about law. It doesn’t matter what WE think the first amendment means. It matters what THEY think it means.)
OK, so now you’ve gone and exercised your first amendment rights to be an asshole, as described above.
Then you commit a crime.
What happens to your protected speech?
Well, if you happen to have committed a crime against someone who is affected by your prior statements, then you are likely to be accused of a hate crime.
One result?
Well, this tends to “chill” the speech in the first place. Why? Because making the speech drastically increases your chances of facing a much harsher punishment.
Thus, it is deterring you from making protected speech–which means it’s reducing your protections. This is (some argue) a first amendment problem.
If you have trouble seeing the argument in the above context, try a different hypothetical:
1) It is legal for you to criticize the U.S. government. it’s one of our most highly protected rights.
2) Now, imagine that it’s still legal to criticize. BUT if you commit any violation of an U.S. law–criminal, tax, regulatory, etc–then they will look at your speech records.
3) If you commit a crime as described above, AND have spoken out against the government, they will also have the option to charge you with sedition. This is on the theory that your prior actions show an intent to cause problems with the government.
4) As a result, some people who would have spoken against the government will not do so, because such speech carries an increased chance of penalty.
evidentiary issues later.
And Sailorman proves my point.
I’ve had to deal with guys who go, “But….but…..that never happens to me!” So, you know, it doesn’t exist. The sexual harassment, the fear, the street harassment, he can’t concieve of the cumulative effect it has.
Amp said it: these crimes are intended to strike fear in the heart of a whole community, not just the one attacked. They’re designed to demonstrate to that community that not even children are safe.
Interesting that RonF used the example of men and not men/women. When faced with a choice, men far prefer to attack women, unless the man has somehow become unmanned in their eyes. Brotherhood in some ways can win out over racism, because a guy is still another guy, wihle a woman is just a piece of meat, no matter what. Sometimes she’s just a less choice cut.
“Why is it that the people most devoted to being against hate crime legislation are the ones least likely to suffer from it? Why is it that they fail to get that it’s designed to cause fear and intimidation not just in the one person, but in their entire group?”
I’m not devoted to being against hate crime legislation. I just don’t think it is right.
That said, if you want to rant against me for being a white man who doesn’t know what’s best for people on this issue…go for it. I will not be swayed by your emotion. I may be swayed by logic. In general, I find the “you just don’t understand…you bastard” argument incredibly distasteful. But whatever, if it makes you feel better, I don’t mind. My wife agrees with my stance, for different reasons. Of course, she’s a white woman, so maybe she doesn’t understand either.
Sailorman, you’d know better than I would, but don’t we have other kinds of laws in place that have a chilling effect on speech? I mean, in and of itself, a chilling effect on speech isn’t enough to make something constitutionally groundless (as the supreme court interprets the constitution), is it?
If it isn’t constitutionally groundless, then the issue for me becomes one of whether or not the good intended by hate crime legislation (lessening group-based violence so that people of certain sexualities, races, religions, etc. can not be terrorized as effectively) outweighs the potential detriment of the hate crime legislation (some people may feel less comfortable expressing bigoted views in public).
also – I agree that, theoretically, hate crime legislation would produce a chilling effect on speech, but I wonder how much effect it has in reality. I mean, how many people are thinking “I’d better not say this in case I kill someone tomorrow and they add a hate crime statute to it.” How many people consider the possibility of being charged with violent crimes, unless they’re about to commit one? (I don’t mean that innocent people don’t get charged with crimes they didn’t commit, but I don’t think most people consider that a likely enough possibility to affect their everyday behaviors, and so I’m not sure hate crime legislation would practically chill most people’s speech.)
Hi, Plunky.
I don’t know if this is an argument you would be receptive to, but if you wouldn’t mind doing a thought experiment with me, maybe I can explain at least my position on hate crime legislation. (which you may have heard in other forms and not endorse, of course.)
Let’s say that a white man is killed in his home. A criminal breaks into his house, shoots him, steals his $100,000 coin collection, and runs off into the night. This is INDEED a terrible crime, deserving of punishment.
Now, let’s say that the man is black and he’s killed for the exact same reasons. Still a terrible crime, deserving of the exact same punishment.
Instead, however, let’s say that in the weeks before his murder, the black man is harrassed with a series of escalating threats. Someone paints racial epithets on his door, in paint the color of blood. A cross is burned on his lawn. When his son comes home from school in the afternoon, a trio of white men stand at the border of the property with their arms folded over their chests. They don’t bar his way, but as he passes, they mutter about what happens to unlucky pickaninnies.
Now the black man is killed in his home.
We have here two crimes:
1) The black man being killed in his home. This is the same exact crime as the criminal murdering the white man for his coin collection, deserving of the exact same punishment.
2) The intended effect on the rest of the black community. “If you do X (in this example, move into our neighborhood), we will kill you.” This is a separate crime — just as when Al Qaeda attacked the United States, he became guilty not only of murdering 3,000 people, but also of creating an atmosphere of fear intended to alter American’s behavior and limit our freedom. This SEPARATE crime deserves a new punishment.
So, yes, you’re right, the murder itself is equally heinous no matter the victim. But the crimes against the community of the victim are a separate matter, to be dealt with separately.
And the fact that hate crimes attack a whole community of people is exactly what sets them apart from other sorts of crimes.
And which is why rape *should* be considered a hate crime as well: it does not affect only the woman who’s raped, but has a “chilling effect” (to put it mildly) on the lives of ALL girls and women.
Mandolin, I am with you insofar as the threats/terror/etc are a separate crime. I am not with you insofar as the appropriate place to prosecute said threats are against the guy who actually did the murder. Unless you can prove some kind of conspiracy I suppose.
Cross burnings are threats, which are illegal already (and a felony in some cases, although IANAL). They are also punishable by reckless endangerment kind of laws, because firemen/cops have to come put the fire out, let alone the people in the house. In the state I live in, you can go away for quite awhile if you endanger three or more lives.
Harassment is also illegal, I believe. Sailorman, can you prosecute people for harassing in a group/conspriracy/whatever?
Sorry I may be fluky with replies today, busy….
Sailorman, you’d know better than I would, but don’t we have other kinds of laws in place that have a chilling effect on speech? I mean, in and of itself, a chilling effect on speech isn’t enough to make something constitutionally groundless (as the supreme court interprets the constitution), is it?
As I noted, it’s not an especially powerful argument. And, as I believe this has already been appealed, I don’t think it’s even vaguely a successful one as the main point of a constitutional claim.
Hmm. Other laws with a chilling effect on protected speech…. they’re probably out there, but for some reason I’m drawing a blank. You can certainly “chill” all the unprotected speech you want. So one way to work around it is to define the speech as unprotected.
BTW, the argument is enhanced somewhat by legislative intent (which the supremes look at). I believe–and I’m not positive I’m right about this, so take this with a grain of salt–the reduction in hate-based speech was also a goal of the legislatures who passed the hate crime laws. A legislative intent to chill speech makes things “worse” than chilling as an incidental effect.
Harassment is also illegal, I believe. Sailorman, can you prosecute people for harassing in a group/conspriracy/whatever?
Sorry, I don’t really know the answer to that at the moment, at least not in a specific sense. I’ll try to check sometime but this thread will probably be dead by then.
You can usually be prosecuted for conspiracy to commit anything which is a felony, and I do not think you can be prosecuted for conspiracy to commit a misdemeanor. So it probably depends on what you mean when you say “harassment” and what the criminal laws are in that jurisdiction. But I do not know for sure.
Crys:
Rape is technically probably a hate crime. But if you’re going to define all rape as hate crime, then there’s no need to call it a “hate crime” per se: you can just enhance the penalties for rape. The concept behind the hate crime statutes is to punish a specific subset of crimes which are motivated by hate; if there’s no subset then it doesn’t make sense to classify it specially.
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But all of these *are* illegal within certain contexts, no? Hating _____ and prohibiting ______ from a job or housing based on that hatred is illegal. Expressing hatred of _________ at work, either verbally or in writing is illegal. Standing on a soapbox in central square and inciting a riot based on your hatred of ________ is illegal.
Dragging James Byrd behind your pickup truck because he is black should be a hate crime. Stringing Matthew Shepherd up to a barbwire fence and pistol whipping him because he’s a faggot should be a hate crime. Kidnapping, torturing and raping a woman because she’s a woman should be a hate crime.
We legislate based on morals and ethics — why balk when it comes to hate crimes? Where is the line being crossed?
Q:
This is why I said “If you want to argue about specifics I can explain more (there are, as always, exceptions) but generally this statement is true as written.” If you really want the specifics (though I don’t think they’re that relevant to the underlying argument) here they are. Let’s not get bogged down in them, though; I’m happy to explain them once but don’t really want to debate them at length:
Hating _____ and prohibiting ______ from a job or housing based on that hatred is illegal.
Actually (surprisingly) not in all circumstances. ADVERTISING which is discriminatory is always illegal. But small places (e.g. owner-occupied, under-3-unit housing, etc) are often not subject to those rules.
You cannot own a large apartment building and deny entry to whites. But you are usually under no legal obligation to live with a white person in a shared aparetment, or even to rent then a first floor apartment in your 2 family house.
Expressing hatred of _________ at work, either verbally or in writing is illegal.
This is a common and often incorrect belief.
The limits of the EEOC are here:
http://www.eeoc.gov/abouteeo/overview_coverage.html
and it only applies once you hit 15 employees. So (oddly) you can refuse to hire any blacks/whites/men/women if you’re a small business and you’re not liable under the EEOC. You may have a state case though depending on your state. The EEOC also generally handles housing issues though the cutoff is well under 15 units for EEOC housing oversight.
In terms of speech at work: It’s usually only illegal if it creates the wrong type of environment. So it may not be illegal to say “I hate ____” if you are not talking to a _______. It depends. Writing is no different from speech and may even be MORE protected, because it is more private and thus less likely to make anyone who is not the recipient feel uncomfortable.
Standing on a soapbox in central square and inciting a riot based on your hatred of ________ is illegal.
Well, yes. Not because of the subject matter, though: Inciting a riot is GENERALLY illegal.
To me the reason to have hate crime statutes is that sometimes the sum of the crime is greater than its parts taken individually. On the speech issue, there’s a huge difference between true hate speech and speech that opposes a group.
For example, to me, a wanted list of abortion doctors with their home addresses and a listing of those who have successfully been eliminated shouldn’t be protected as free speech. The intent is to help others commit murder and to celebrate completed murders. I would feel the same way if the targets were sex offenders.
The evidentiary issue. This will explain the “thought crime” problem a little.
Generally, we have fairly strict rules of evidence about what is/is not permissible for admission against a criminal defendant.
For almost all crimes, for example, we can’t admit “propensity” evidence. In other words, the criminal scheme is such that we can’t say “he was a robber before, so he’ll be a robber again.” You cant say that a defendant has a propensity to commit crime.
(we may be able to admit evidence of prior convictions, for a different purpose. And yes, the evidence gets misused all the time. I don’t have the time to go into that problem yet.)
An example:
If you are accused of assault, the prosecution cannot being in 10 people to testify that you have a “reputation for being violent” or that they are “scared of you”. They will not, depending on the specific issue, usually even be able to bring in someone to say “he assaulted ME a year ago.”
Now, you may be thinking “but that IS really relevant!” or perhaps “but that doesn’t make sense!” If so, you’ll be joining about 99% of law students and many lawyers. The hows and whys of evidentiary rules–and how they balance reality, process, discretion, and a whole host of other factors–are enough to fil many books (which they have).
Anyway, it’s not relevant because the law says so. Trust me on this.
Hate crimes open up a whole can of worms. Because they almost always start to go into evidentiary things relating to the “basis of intent” and thus they are–almost by default–arguing about propensity and reputation evidence.
oops gtg more later
Hate crimes legislations is interpreted in a very fluid manner. What is hate? What is protected class? Both of these issues have seen recent expansions (eg. sexual orientation being a recent addition.) The evolution of this type of legislation tends to favor the interpretation of hate being specific to the group being targeted, rather than motivation of hate being legislatively defined. For instance an offender with a history of racial animosity who commits a crime against a homosexual is not committing a hate crime.
When victims are targeted by a criminal because they are members of an identifiable group and the criminal has animus to members of that group then we’re setting up the framework for a large number of criminals to be charged with hate crimes, because they target people based on their class (because they have more to steal.) For the specific subset of criminals who are black and commit crimes against members of a class of higher economic status we would also have the added complication of race (White – because there is a wealth difference between many white victims and black criminals.) This is no different than targeting other people who are members of visible groups.
It’s unjust to be targeted for a crime because of one’s sexuality, race, national origin or creed, and it is similarly unjust to be targeted for a crime because of one’s class.
Where hate crime legislation fails is that is cannot partition off protected classes and lock in their special status. Why is being homosexual worthy of special status where being a nerd in school and being targeted by the lowlifes for being intelligent is not worthy of the same consideration. Both groups are attacked for being who they are. Same with being wealthy. Same with being raped because one is a woman.
Criminals are motivated by a variety of reasons and hatred is simply one of many, no worse than others. Besides, liberal belief tends to view criminal punishment as a way to bring about rehabilitation rather than a means to dissuade criminal behavior. Will a longer prison sentence for having hate in one’s heart make the criminal a better person? Will a longer prison sentence for a hater serve to change the feelings of other haters in the community? The primary purpose of hate crimes legislation is that it appeases specific interest groups in that they see that their tormenters get longer sentences for having the wrong kinds of thoughts. There are however plenty of other victims who have been hurt by their tormenters but their tormenter’s thoughts haven’t yet been criminalized though they follow the same pattern as that of those convicted of hate crimes.
Mandolin, the problem in your example is that you haven’t connected the criminal who broke in to the house to steal the coin collection and killed the black householder while she was at it with the harassment and vandalism the family suffered previously.
Would you support trying the criminal for a hate crime simply because the black family had suffered from the ire of hateful people, with no known connection between the criminal and the hateful acts?
Now, if you can find the people who painted the house and burned the cross and try them for vandalism, maybe you can support the concept that the vandalism charges should be enhanced by a “hate crime” add-on because the vandalism obviously had racist content. But I don’t see where an add-on to the murder charges would be supported.
We legislate based on morals and ethics — why balk when it comes to hate crimes? Where is the line being crossed?
Q Grrl, I can go along with you as long as the concept of “hate” is applied equally. If a “hate crime” statute is equally applicable to both a couple of white people who assualt a black man while shouting “Damn n*****s” and a couple of black people who mug a white person while shouting “Get Whitey!”, then I may agree with all this. But the bare fact that a crime was committed by a person of one race, religion, or sexual orientation against someone of another such classification should not in and of itself be evidence that hate was involved (not that I claim you’ve proposed such).
Ron,
hate crime laws are, in theory, applied equally. There is no affirmative action in the criminal law; though a DIFFERENCE of race is an issue, the race itself is technically not determinative.
I do not know the stats about whether the hate crime laws are applied equally in practice. Certainly many (most?) laws which are not cut-and-dried are often applied in an unequal fashion across races, usually to the benefit of whites. I don’t know if hate crimes follow that trend, reverse it, or are actually equitably applied.
I’m off for the weekend but I’ll leave a comment behind:
There are two main possible reasons to reject hate crime law.
One is the concept of “irrelevant intent”. That theory says that we are already punishing “bad” intent through the criminal process. Once it’s worse than the criminal intent required for the underlying crime, it’s not “more worse” enough to warrant an additional penalty beyond that which the judge can ALREADY impose on the defendant (the judges already have sentencing discretion and consider motive in sentencing).
One is the concept of justice over fairness. Justice implies equal treatment: under this theory, you would not get more time in jail for killing a much-loved family member, and less time in jail for killing a homeless man with no family. Under this theory you would not get more time in jail because you robbed someone who you hated, and less time in jail because you robbed someone who you did not hate. This theory to an extent rejects the purported ability of our system to ever really be “fair” and settles for sameness as an alternative.
One is the concept of “bad process:” Given the realities of our law–including our constitutional rights, our evidentiary rules, our precedent, our cops, our prosecutors, our judges–and given all the various ways in which they can influence the results, and the various motivations many of them have (which are often COMPLETELY unrelated to either “fairness” or “justice” for the accused)… this theory essentialy states that even if the hate crime statutes would benefit society they cannot be realistically enforced or adjudicated without causing more overall harm than good.
Process folks, for example, might note the extreme difficulty in distinguishing between, and appropriately sentencing without error:
1) A person with a known history of racial hatred who commits a crime that is not motivated by hatred, but which is consistent with such a motivation; and
2) A person withOUT a known history of racial hatred, who commits a crime that is motivated by such hatred.
The former person is quite likely to be convicted of a hate crime, though he was entirely innocent of one; his crime was not, in fact, racially motivated. He is a racist–and is essentially being punished for that fact, not for its role in the crime.
The latter person is likely to be found innocent of a hate crime, though he was actually motivated by racial hatred. He may also be as much of a racist, though it is unlikely to come out at trial. He may not even be charged with a hate crime.
Both of those outcomes are bad; under our standards, #1 is far worse (better to let the guilty free than screw the innocent). #2 is bad as well. And this does not even go into the issues of trial, which I discussed somewhat above.
One interesting exercise for hate crime advocates is this: Don’t just say “they’re good”. Say how you would enforce them. Explain how you would avoid casting too wide a net; explain how you would cast a wide enough net so you would get m0st guilty parties. Explain how the law would be predicatable enough so that everyone would know what it means, and be deterred (the ultimate goal of every law). Explain whether you balance towards fairness or justice, and why.
You may still support the laws, but you’ll get a good sense of the process argument.
That said, if you want to rant against me for being a white man who doesn’t know what’s best for people on this issue
How about if I rant on you for being an ignoramus about how the law works? You didn’t need to say “I ain’t a lawyer”, because that was abundantly clear from your post.
We consider intent in crimes ALL THE TIME. Deliberately shooting another human being is not the same as accidentally shooting another human being. If I pick up your purse and walk away because I mistakenly think it’s mine, that’s not theft; if I pick up your purse simply because I like your purse better than mine, it is. Nobody complains that we punish murderers or purse-snatchers for “thought crimes”. Nobody claims that the First Amendment is violated because we look to the criminal’s intent.
It’s only when people (mistakenly) fear they won’t be allowed to swagger their biases around in public that they get their tighty-whities in a knot about “thoughtcrime” and nebulous violations of the First Amendment (do you even know what it says?). Rest assured nobody is going to prosecute you for mouthing off about how affirmative action sucks or about how you think faggots should stop trying to ruin marriage.
Mythago:
I agree that Plunky’s post showed an ignorance of the law.
I also thought it was annoying of him to say that he responds to logic, not invective, when what he actually did was respond to percieved invective while completely ignoring all the logical arguments posters had put forward against his views.
That said, it’s not fair – and really not akin with the mod policies here – to speculate about his motives for his position, especially in such an unkind way. With all due respect, your final paragraph seemed more like a personal attack then like attacking an argument.
Fair enough. I just really have no patience for people who gleefully admit they’re ignorant, mouth off in an ignorant fashion, then insist that everyone else play by debate rules they themselves have no intent of following. That’s trolling, not discussion.
Plunky also admits that he believes a cross-burning is a ‘threat’. Now, isn’t that thoughtcrime? Aren’t we prying into the mind of a KKK member when we say, you know, we believe what you did was a threat, no matter how much you insist otherwise? Why should burning a cross on a black family’s lawn be a threat, rather than merely trespassing and vandalism? After all, if I chose to burn a cross in the middle of my own land miles away from the eyes of anyone else, that’d be legal–the real difference is in my intent.
Process folks, for example, might note the extreme difficulty in distinguishing between, and appropriately sentencing without error:
1) A person with a known history of racial hatred who commits a crime that is not motivated by hatred, but which is consistent with such a motivation; and
2) A person withOUT a known history of racial hatred, who commits a crime that is motivated by such hatred.
Except that the prosecution still needs to prove the elements of the crime, and can’t introduce irrelevant evidence. If hatred isn’t part of the charged crime, as in #1, it’s irrelevant, prejudicial and likely won’t ever get in front of a jury.
“if you’re going to define all rape as hate crime, then there’s no need to call it a “hate crime” per se: you can just enhance the penalties for rape.”
Actually, as far as I’m concerned (and I only speak for myself here), I don’t really care about the penalties as much as I do using the courts to send a message to the rest of society that rape IS a crime against all women, not the “misfortune” of a small number of unrelated “victims.”
If you specify that it is a hate crime or as domestic terrorism, whether or not the sentences are necessarily stiffer, you will at least be legitimising the concept of crimes committed against an entire community. What I’m after is changing public perception, not really in punishing and getting vengeance, and that sort of institutional support plays a big part in that.
PS–and please don’t tell me that the courts are not the place to get across political messages. For one thing, they’ve been used that way since time immemorial. In fact, you could say that this is their primary role.
“Why should burning a cross on a black family’s lawn be a threat, rather than merely trespassing and vandalism?”
Why should saying to someone, “I’m going to come after you tonight, tie you up and then gut you like fish” be a crime? After all, you could’ve just been fooling around, couldn’t you? There’s no “real” way to prove you meant the message that your words conveyed.
Burning a cross on a black family’s lawn is a threat because it didn’t occur in a vaccuum. It may not be verbal language, but it’s a sign that carries a very clear message that we all understand. I don’t have patience with this sort of nitpicking that ignores the fact that we live in a real world. If someone from another culture that had never heard of the KKK came and burned a cross on your lawn, you might have a point. That’s not the example we’re talking about.
Damn, I didn’t mean that last post to look as if it was addressed to Mythago! It was me going off on the “thoughtcrimes” idea that Myth’s post was about.
Aww, damn……it’s too late here. I’m going to bed now.
It seems to me that we could combat hate crimes much more effectively if we stopped treating them any differently from normal crimes. For example, the July 7 bombings in London were treated by Scotland Yard not as terrorist attacks, but as crimes in a normal degree. Many of the criminals were caught, and the kerfluffle died down quickly. On the other hand, 9/11 was framed as a terrorist attack and treated very differently than another hijacking would have been. Because it was portrayed that way, we have fought two pointless wars, we deal with partisan fearmongering, our phone conversations are subject to illegal spying, and many have been detained and tortured with no trials. Which is not to mention that all our post-9/11 anti-terrorist precations (like the color-coded alert levels) have all been profoundly idiotic and ineffective. One can’t help but think that if the government didn’t distinguish between terrorism and other crimes, we wouldn’t be dealing with any of this. In fact, we probably would feel much safer from terrorism, since the FBI would be at work on this, rather than the NSA–and as we all know, the FBI is much more effective at fighting crime.
It goes the same way for domestic terrorism. By painting domestic terrorism as racist and sexist political statements, we put political groups, watchdog organizations, and progressive activists like ourselves in charge of stopping it. But preventing murders and other crimes really isn’t what we’re good at. Flawed as they may be, the police are a much better choice. But because of the political overtones of hate crimes, they’re loth to act. If we want something to be done, we need to portray hate crimes as normal crimes so that the entire public (and not just the political left) will inveigh against them, and also so that the most effective institutions (that is, the law) will bear the burden of stopping them.
Hey Ron,
I didn’t mean that the coin collection robber was supposed to be the same person who killed the African American man. I was trying to talk about two different murders with the same result — a man dead in his home — but separate motivations (violence + avarice, vs. violence + attempt to terrorize, intimidate and limit the behaviors of an entire group of people).
Why should burning a cross on a black family’s lawn be a threat, rather than merely trespassing and vandalism?
I’m not a lawyer, but it seems to me that, depending on various circumstances (ground cover, proximity to trees, proximity to the building, the weather, etc.), it is quite close to arson. And if the building is known to be occupied, that would in turn be close to attempted murder.
In the case of murder in the 1st degree (oh, yeah, I do love “with malice aforethought”), there has to be pretty solid evidence that the attack was planned. This can be easy in some cases, and quite hard in others. If the case for pre-planning the attack is weak, then lesser charges are brought to bear, I should think. It would be somewhat common, I should think, that the murder itself is much simpler to prove than the presence of malice beforehand.
The same issue for hate crimes has to be addressed. It’s one thing to prove that, say, an assault has taken place. But the simple presence of a possible “hate crime” factor (different religions, races, etc.) can’t be sufficient to bring charges of a hate crime.
Mandolin – O.K., thanks for the clarification.
Hm: OTOH, here’s a pretty clear-cut example.
“A second legal complaint filed against the man accused of rolling a frozen pig’s head into a Lewiston mosque is raising the question: Will there be a third?
Thursday’s decision by the Maine Attorney General’s Office to prosecute Brent Matthews of Lewiston on civil rights violations has mosque members hoping that the federal government will follow.
Local prosecutors at the Androscoggin District Attorney’s Office first charged Matthews, 33, with the misdemeanor crime of desecrating a place of worship.
The state, in its civil lawsuit filed Thursday in Superior Court in Auburn, claims Matthews broke the law because his alleged action targeted Somali and Muslim residents and was motivated by bias based on “race, color, ancestry, national origin and religion.”
The complaint pointed out that Matthews has admitted rolling the pig’s head into the mosque on July 3, calling it a joke. It also said Matthews has demonstrated anti-Somali bias. He displayed an anti-immigrant bumper sticker on his car, according to the Maine Attorney General’s Office, although Matthews’ lawyer disputes that.”
Now I think anyone would concede that the act of rolling a pig’s head down the middle aisle of a mosque demonstrates malice based on religion. I have to wonder, though, about the “anti-immigrant” bumper sticker. Given the current state of rhetoric, I first have to wonder whether it was anti-immigrant, or anti-illegal aliens, since many open-borders types try to conflate the two. If he’s anti-illegal aliens, that doesn’t mean he opposes legal immigratiaon.
I’m not a lawyer
You don’t have to be a lawyer to get the law right, and you’ve gotten it badly wrong. Arson is burning a building, not a cross. Burning a cross on a lawn is not burning down a house. And “quite close to” a crime is not the same as committing a crime.
# mythago Writes:
Except that the prosecution still needs to prove the elements of the crime, and can’t introduce irrelevant evidence. If hatred isn’t part of the charged crime, as in #1, it’s irrelevant, prejudicial and likely won’t ever get in front of a jury.
Don’t assume omnipotence on the part of the prosecutor (which you seem to be doing). Yes, it’s an easy solution if you ALREADY know who has or has not violated the statute. The problem, of course, is that the system doesn’t know.
So then person #1, who commited a crime consistent with hate, and who has a prior history of hate speech, WILL probably be charged with the hate crime. As you correctly noted, in this case it’s irrelevant and prejudicial. That’s the problem.
Don’t assume omnipotence on the part of the prosecutor
Who’s assuming omnipotence? Prosecutors charge on available evidence and whether they think they can get a plea-bargain–which, ultimately, means being able to prove their case to a jury. If the argument is that we should not make something a crime if there is a chance a prosecutor will ever charge somebody with that crime without proof beyond a reasonable doubt, we might as well toss criminal law out the window.
RonF appears to be trying to argue that hate crimes are unnecessary, and that they will be particularly ripe for prosecutorial abuse. He hasn’t made the case for either.
HOw come the people arguing against hate crimes appear to think there’s absolutely no context or history for hate crimes?
A few years ago MN passed a law that codified Domestic Violence all the way down to threats and verbal abuse, taking into account the difference in intimidation between a man backed by the full weight of society, religion, law, and justice, and size and a woman lacking all those things.
A guy in my store got enraged at the inconveniance and started shouting abuse at me about it. He was six foot three. I’m five foot three. People looked at me as if I’d done soemthing wrong.
Opposition to hate crime law seems to come from the same sort of character flaw that thinks PC is pandering to weaklings. It’s good manners and consideration, but why waste that on somebody you don’t have to impress, who you don’t have to be nice to, who you can do whatever you want to?
Finally, I recall the case of a woman whose brand new husband, outraged at something she’d done at Thanksgiving dinner with his family, beat her to the ground, in public, outside his parents’ home. No one did anything. She learned, therefore, that with her in laws and with the public she had no value, no hope of escape. Until they divorced ten years later all the hubby had to say to her was, “Remember Thanksgiving.”
Don’t current anti-terrorism laws already make it ilegal to threaten and intimidate a group of people? Domestic terrorists aren’t safe from prosecution. Some high schoolers in Michigan have been prosecuted for terrorism for web postings.
A lot of people here are spouting off about the law, but I wonder if a prosecutor would think a hate law would be necessary.
I don’t like them. Of course I believe that threats to individuals or groups should be illegal, or at least agravatting factors to other crimes, but hate crime advocates do seem to be all about being thought police. If they are only used to increase sentences to underlying crimes, they could potentially be saying its worse to murder or harm a certain individual than it is to murder or harm another. In practice, I don’t see how they could NOT do this.
And be careful about how far you go trying to conveince others that thoughts are not free from prosecution. Ann even posted that there is nothing in the First Amendment to protect thoughts. Ann, please think about what you are saying.
And the distinction of 1rst degree homicide and other crimes where “thought” matters are all about intention and planning. Not hate.
At best it’s symbolic, because other laws cover terrorism and threats. At worst, it prosecutes thought- not planning or intent- thought.
Oh, God, can we stop it with the vague orwellian references to thought? There’s intent which is a legal concept. If you threaten somebody with murder and then go and buy a gun you’ve demonstrated intent. How about if you, in effect, are threatening a whole community be recreating scenes of their helplessness and murder? By implying that the past is not past and that they’re not safe?
Elena, if you don’t like hate-crime laws, then you shouldn’t like anti-terrorism laws either, because in your view both do the exact same thing.
And the distinction of 1rst degree homicide and other crimes where “thought” matters are all about intention and planning. Not hate.
Intention is a thought. Why do you think it is OK to prosecute people for some thoughts, but not others?
Because of the people doing the thinking, that’s why. Some thoughts are acceptable to society, others are not.
I don’t think that they cover the same ground hate crime laws do; for instance, I’m not sure that anti-terrorism laws have ever been used to prosecute terrorism of the lesbian/gay community.
My guess is that we’d be able to find prosecutors on both sides of this question, if we looked through enough archives of past op-eds.
What was it I said in post #30? Oh, yeah. This argument seems more like a personal attack on people who disagree with you, than a substantive argument. Please try to avoid speculating about motives of other posters here.
I think you’re mistaken about this. Hate crime laws don’t say “you get punished more for harming a Jew” – they say that “you get punished more if the intent was to send a terrorizing message based on people’s religion.” Since all religions are protected, the effect is not to set apart Jews (or blacks, or gays, etc) as extra-deserving of protection.
Furthermore, your logic here could be used to say that circumstances should never be considered in sentencing, since any variation in sentencing at all could be said to “say” it’s worse to harm one individual vs. another. There certainly are cases of variable sentencing I object to (like the way that blacks and men tend to get harsher sentences for the same crimes), but surely variations in sentencing are not always bad.
Finally, I agree with Mythago – your “intent is not a thought, but hate is a thought” logic isn’t very persuasive.
A MODEL HATE CRIME PROTOCOL
SAN DIEGO COUNTY REGIONAL HATE CRIMES PROCEDURE MANUAL
OCTOBER, 1999
APPENDIX A.A. MODEL
CONCLUSION:
“Hate crime victims are usually targeted not because of anything they said or done to the suspects or for financial gain, but because of who they are or what they believe in. As such, hate crimes violate the very basic tenets of our democracy by targeting the right of every resident to be himself or herself and live safely and freely.
“Perpetrators of hate crimes seek to send a message to the victim and his or her community that they are unwanted, that they do not belong, and that the community at large does not care about what happens to them.
“Although it is unrealistic to believe that we can eliminate all hate crimes, we in law-enforcement can drastically diminish their impact by the approach we take when dealing with hate crimes.
“We can send an even stronger countermessage.
“We should communicate to the victim, the community and the defendant that we will do everything we can to apprehend those who seek to terrorize any member of our community.”
This excerpt is from San Diego, California’s Hate Crime Protocol Manual. It may have been enacted in San Diego, but it speaks clearly on what a hate crime is. The purpose of this manual is to educate law-enforcement personnel on how to identify the difference between a hate crime and a hate incident, how to work with a victim of hate crimes/incidents, how to gather evidence on hate crimes.
To link to the full manual, follow the instructions below. I linked on to “ORCINUS” above and found this manual.
1. Scroll back up to the beginning of this thread, until you see “I agree with David at “Orcinus”; click on Orcinus;
2. You are now at http://dneiwert.blogspot.com/. Scroll down through the post until you get to the highlighted words “what steps law-enforcement professionals recommend”. Click on that.
3. You should now be at the website which gives examples of hate crimes and hate incidents to help police (in this case, the San Diego Police Department) in gathering information and proper procedures in investigating alledged hate crimes.
To me San Diego is very direct in what they consider a hate crime to be.
No murkying or muddying the waters with convoluted, discombobulated ’round the mulberry bush explanations.
Just simply getting to the point of what a hate crime is.
From everything I’ve read about this issue I think that hate crime statutes do not apply to the legal concept of intent, but rather come under the heading of motive. A person might have gone out without the intent (planning) to do violence against a member of a oppressed group, but once an opportunity presents itself they murder the person because they are a part of that group. This falls under motive, or the “why did the perpetrator do this”.
And as far as hate crime legislation being abused by prosecutors across the nation, well no one is screaming about the rest of the legal code which can also be abused by prosecutors. I perosnally don’t see hate crime statutes as “thought crimes” any more than I see capitol murder statutes as “thought crimes”.
By the way, this has been an interesting discussion.
*plonk*
As has been pointed out, intent is a fundamental element of any crime. Ascribing differing punishments to differing intents is a pretty straightforward effort and I suspect has a lengthy history beyond hate crime statutes.
Beyond that, hate crimes are, in truth, two seperate offenses arising from a single act. There is the criminal conduct, but a hate crime is also, at its essence, a civil rights violation. I believe the law allows a person to be tried both for the conduct and the civil rights violation (though, I am not at all certain of this), so why not simply account for the civil rights violation when prosecuting the conduct. Its just an efficent means of carrying out justice. Indeed, I’d say this benefits defendants who might not be able to finance two seperate trials.
I have no problem with hate crime statutes, simply because I believe that hate crimes do more damage to society than non-hate crimes.
A murder comitted in order to specifically terrorize the queer community has a greater negative impact than a murder comitted for money or passion, because it deliberately seeks to divide and frighten.
If a crime has extra negative impact, I’ve got no problem with it carrying extra punishment.
I do understand why some folks are uncomfortable with the idea of ‘thought crimes,’ and that’s why I’m not talking about what emotions an offender had at the time of the crime, but rather what effect it has on the world. Or, to put it another way, if you hate queers and rob and murder a gay man never knowing he was gay, but rather as a crime of opportunity, then yeah, I wouldn’t apply the statute. On the other hand, if you do it specifically as a gay bashing, then yeah, you just earned some extra punishment.
To expand on that last paragraph a little, what I mean to say is that our country’s unity is a fragile thing, and we are prone to factionalism and strife. Every single step towards tolerance and togetherness is to be celebrated, and those who choose to sabotage that should be excoriated.
Because of free speech laws, the people who choose to encourage bigotry and turn us against each other through legal means have a right to do so. It’s sad but true, and I continue to believe in free speech even when it’s used for evil.
Those who choose to turn us against each other through illegal means, though . . . their offense is greater than those acting because of greed or anger, because these people are trying to deliberately sabotage America. They’re trying to turn black against white, man against woman, straight against gay, American against American. Forget hate crime legislation, let’s prosecute these bastards for treason.
There’s a particular trick being used to sustain this argument. You see this when David talks about “intent and motive” in his counter post and blurs them both together. But there are two schools of thought on the matter. One says that that’s the right approach – they are indistinguishable and mean basically the same thing – and if you believe that there is no problem. The other says there is a difference between the two and says that laws should not consider motive, if you believe that then ‘hate crimes’ become more problematic.
Whether look at what someone did. They also look at whether someone has a guilty mind (i.e. intent) all the time. But *why* they wanted to do it (i.e. their motive) is normally irrelevant.
If you take someone’s purse intending to deprive them of it, that’s theft. If you pick it up thinking it’s yours, that isn’t. That’s where intent comes in. But motive just doesn’t normally get a look in. Whether you steal a purse to feed your kids, or your drug habit, or for the thrill, or to redistribute the money to the poor, or because you disagree with the fashion statement it makes, or want to make a statement against Capitalism, or out of sheer venality, it just doesn’t matter when it comes to deciding whether you have committed a crime. All that matters is whether (a) what you did is illegal and (b) whether you intended to do it.
So you can still maintain that whether someone intended to do something is important, but that why they intended to do it is none of the law’s business.
Mythago:
Actually, I wrote up post #40 to show that I can see that there are crimes where the motivation is uncontestably based on disdain or dissaproval or anger or hate or whatever towards, in this case, religion, and by extension towards sexual orientation, race, national origin, etc.
So I don’t contest that such things exist. I now wonder, however, whether rolling a pig’s head down a mosque’s aisle is something that should be punished by a year in jail. I think that’s a bit much; after all, no one was killed or injured. Now, if such an act went unpunished, it would be chilling to the Moslems in the area, but that doesn’t need special legislation to take care of it. This guy could be arrested on a few other charges, including trespassing, disorderly conduct, etc.
I’m more of the restitution school; sentence this guy to either cleaning the rug to the mosque’s specifications himself, or paying to replace it, plus some other public service and perhaps passing a course on the principles of Islam. A newspaper picture of this guy on his hands and knees scrubbing a carpet while the mosque’s imam looks on publicly humiliates him and motivates him not to do it again. Meanwhile, he’s still paying taxes instead of consuming my tax money in jail costs. The public humiliation gets lots more publicity than the alternatives, would motivate others as well, and would publicize that the law stands on the side of Moslems in the area, which IIRC is the idea of “hate crime” legislation.
I now wonder, however, whether rolling a pig’s head down a mosque’s aisle is something that should be punished by a year in jail.
So your problem is not with the idea of hate-crime legislation existing, but the level of punishment and its relation to the severity of the crime?
nik, you are taking “motive is not always relevant” and turning it into “motive is never relevant”, which is false. I’ve already given the example of assault. If I intend to say to you “Shut up or I’ll stab you,” am I guilty of assault? Only if what I meant to do was to cause you to be afraid that I would really stab you. If my motive was to recite a line in a play we both appeared in, that would not be a crime. We don’t call assault a thoughtcrime.
Hate crimes are more like assault and less like theft; they are meant to cause fear and to intimidate, not just the victim, but the group to which the perpretrator believes that perosn belongs to.
I didn’t speak at all as to whether I approved of using a hate crime statute to prosecute this. I am saying that 1) this crime seems inarguably motivated by some kind of negative emotion against Islam, and 2) a year in jail seems to be the wrong punishment, IMNSHO. The other thing I wonder about is that given the facts published, “hate” may not properly describe the perpetrator’s state of mind. Disrespect, for one, or many other emotions could lead one to do this.
Okay, so, you object both because you think the penalty is too harsh and because the term “hate crime” is inexact? It’s hard to tell, because as soon as somebody addresses one objection you raise, you bring up another. I get that you don’ t like the concept.
This is pretty incredibly weak tea as an argument (on par with the “I’m not a homophobe because I don’t fear gay people” argument). You are now merely arguing with the name of the laws, not with hte concept of the laws. As Amp and Amanda Marcotte suggest, perhaps you’d prefer “domestic terrorism”? Remember that while hate criume laws are called hate crime laws, they are not concerned with whether the fellow had hate in his heart, but rather with the intent of his actions, and specifically whether his actions were intended to intimidate on the basis of a protected category, or were motivated by bigotry or bias.
to quote Sailorman quoting the laws:
Mythago and Charles:
I’m not sure whether I like the concept or not. As has been pointed out above, it’s well established that the intent of crime has a bearing on the punishment meted out upon conviction. So in the example of rolling a pig’s head down the center aisle of a mosque, what was the intent of the person doing this? I think that no matter what your opinion of “hate crimes” is, it’s fair to say that the person who did this intended to at least insult the people he committed the crime against based on their religion. It thus falls under the definition posted by Sailorman. What I’m trying to decide is whether such an intent should be something whose punishment under the law is a special case that deserves extra punishment.
The “Hate Crime” thing is a little different. I do object to the name. It’s so emotionally loaded as to mask what it’s actually all about. Given the definitions for them shown in this thread, there’s a lot of other emotions that can give intent to the acts covered under them besides hate. But to use the term “hate crime” lumps a very diverse group of feelings and activities under a term or phrase that doesn’t actually apply to many of the people involved.
To use the example that Charles put forward, “homophobia” is being used to cover any act or expression of dissaproval of homosexual activity. But since every other word that includes the term “-phobia” (as well as the root word itself) means “irrational or unreasonable fear of [whatever]”, “homophobia” paints every dissaproval of homosexual behavior as being a) motivated by fear, and b) unreasonable or irrational, which is clearly not true. But proponents of the use of the term “homophobia” have promoted the use of the term to mask that.
One thing that makes me wonder if such crime definitions are a good idea is in large part how “intent to intimidate such person because of such person’s race, color, religion, national origin, sexual orientation, or disability …” is determined. From what I’ve seen here and elsewhere, the mere fact that the perpetrator is a member of a majority and the victim is a member of a majority is enough for a lot of people to presume that intimidation based on bias was a motivation for the crime. I find that very objectionable and unjust.
So, then, let me ask this from those of you who seem to have some legal knowledge of these things; what kind of evidence is generally necessary to establish such intent?
The same kind of evidence necessary to establish, beyond a reasonable doubt, intent in any other crime. How do you show that somebody ‘intended’ to commit murder? That they deliberately, rather than mistakenly, walked off with somebody else’s purse?
For someone who claims to be very concerned about fairness and wrongful punishment, you were awfully eager to punish cross-burning as arson or murder because it was “quite close to” those crimes or may, under different circumstances, have turned into those crimes. Why are you only concerned with due process for some hate crimes, but not others?
But since every other word that includes the term “-phobia” (as well as the root word itself) means “irrational or unreasonable fear of [whatever]”
Wrong. The “-phobia” suffix, in the English language, refers to both fear and hatred. A, who is terrified of cats, is an ailurophobe. B, who is not afraid of cats at all but hates them, is an ailurophobe. “Hate crime” is not exact, but neither is “domestic terrorism”.
Sailorman wrote:
Sailorman is correct about not being able to use propensity evidence to prove a crime. However, evidence codes provide for using hate speech as relevant evidence under Rule 404(3): Evidence of other crimes, wrongs, or acts….may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
And you can introduce evidence of the violent character of a party in a civil assault and battery case if self-defense is pleaded and there is evidence to support the defense. Rule of Evidence 404(2)(d).
Prior convictions may be used to impeach the credibility of a witness, but not to indicate the witness acted in the same manner.
Hate speech is quite clearly evidence of the motive of a crime. If a defendant is heard to say, “Die, N-word, die!” and claims to not have committed an assault on a black person, the hate speech is clearly evidence of motive, and is admissible hearsay under the state of mind exception.
It also should be an aggravating circumstance in both murder and other violent crimes; the state has a compelling interest to prevent criminal activity against people more vulnerable to crime, such as children and the elderly (physical inability to resist) or protected classes with evidence of hate crimes (the crime is essentially an act of terrorism against others as much as it is a crime against an individual).
Re Ann’s post #2: Murder is defined as “An unlawful killing of a human being by another with malice aforethought – “malice aforethought” is defined as 1.) premeditation, 2.) death during an “inherently dangerous felony” – robbery, rape, arson, mayhem, sodomy, burglary, kidnapping, or escape; 3.) intent to commit serious bodily injury; or 4.) “depraved heart murder” – commission of an act of extreme recklessness.
“Malice aforethought” is a legal term of art distinguishing murder from manslaughter.
Good luck to people taking the bar exam today!
mythago:
The same kind of evidence necessary to establish, beyond a reasonable doubt, intent in any other crime. How do you show that somebody ‘intended’ to commit murder? That they deliberately, rather than mistakenly, walked off with somebody else’s purse?
And what kind of evidence is that? I’m looking for specifics, here. Not the obvious stuff, like someone who announces “I’m gonna kill me some damn wetbacks!” and then takes her deer rifle and hunts down a couple of Mexicans on the Texas border. What other kind of things have been taken (or are anticipated to be taken) as evidence of a “hate crime” and fulfill the criteria given in earlier posts quoting the provisions of such laws?
For someone who claims to be very concerned about fairness and wrongful punishment, you were awfully eager to punish cross-burning as arson or murder because it was “quite close to” those crimes or may, under different circumstances, have turned into those crimes. Why are you only concerned with due process for some hate crimes, but not others?
I wasn’t eager to do anything. I pointed out, quite reasonably I thought, that under some circumstances a cross burning could lead to other consequences and consideration of other charges. I didn’t think I had to spell them out. But if someone burned a cross in my front yard, it would be almost impossible to place the cross in such a way that it didn’t catch a tree on fire, which could endanger me and the whole neighborhood. That’s actionable. If I understand the law correctly (I confess I’m no lawyer), even the risk of such a thing has legal consequences past the initial act of cross-burning. Whereas about 1/2 a mile away, there are yards where you could build a 40′ bonfire and not have to worry about roasting anything but slow-reacting birds.
Here’s what I find for phobia:
Main Entry: pho·bia
Pronunciation: ‘fO-bE-&
Function: noun
Etymology: -phobia
: an exaggerated usually inexplicable and illogical fear of a particular object, class of objects, or situation
Doesn’t say anything about hatred.
Which actually bolsters my argument regarding “homophobia”; everywhere else the word or suffix are used, “phobia” means fear and/or irrationality. The use of the term for dissaproval of homosexual behavior tags said dissaproval as necessarily being irrational or based on fear, which is not true. It’s a rhetorical trick to close off debate by characterizing people who have such dissaproval with feelings or thoughts they don’t actually have.
The Oxford English Dictionary — usually seen as authoritative — defines homophobia as “Fear or hatred of homosexuals and homosexuality.” So “hatred of homosexuals” is a legitimate way to understand the word “homophobia.”
Irrelevant. In English, etymology does not dictate meaning. Meaning is determined by usage, and in most usage “homophobia” is used as a counterpart to “racist” and “sexist.”
I’ve seen this argument made many times, but I’ve never understood its foundations.
For instance, you seem to be saying that if I say “I think that argument is homophobic,” I’m trying to “close off debate.” However, I don’t think that’s what I’m trying to do. Furthermore, I’ve been in literally hundreds of debates about SSM, and not once has the result of saying “I think that argument is homophobic” been that the other person ceased disagreeing with me. So in that sense, the debate is not closed off.
Even if the other person chooses to stop responding after I say “I think that argument is homophobic” (which has happened to me a couple of times, but not more often then debates ending in other ways) in what way is that my responsibility? Isn’t the person I’m arguing with responsible for their own decisions on when to speak and when to stop? And if I’m responsible for shutting them up because my use of the word “homophobia” made them feel bad – does that mean they’re responsible for shutting me up if something they say makes me feel bad?
When I say “that argument is homophobic,” it’s usually a shorthand way of saying “I think we agree that bigotry against homosexuals is bad public policy. I believe that the policy under discussion would enact bigotry against homosexuals into public policy. Therefore, we should agree that this policy is bad public policy.”
Nothing about that is an attack on the person I’m arguing with. And nothing about that can reasonably be construed as an attempt to shut down debate.
My concern is that if we agree that it’s wrong to ever bring up the concept of “homophobia” and the related concept of “bigotry” in debate, then we’ve in effect agreed that “bigotry against homosexuals is bad public policy” is not a point that can be brought up or discussed in a policy debate. Since I think “bigotry against homosexuals is bad public policy” is a legitimate belief, I don’t understand why it should be in effect banned from polite debate.
Two more points.
This assumes something which is at issue. I’d say that that it IS true that disapproval of homosexual behavior specifically (as opposed to sexual behavior generally) is necessarily irrational.
Interestingly, here you commit the exact same logical error you’re claiming people who use the word “homophobia” commit – you attribute bad motivation to people you disagree with. And imo you do so wrongly.
I pointed out, quite reasonably I thought, that under some circumstances a cross burning could lead to other consequences and consideration of other charges.
If a cross-burning led to a house burning down, we’ve got a hate crime AND arson. You suggested that because a cross-burning is “quite close to” arson, we don’t need hate crimes. You also seem to be suggesting that the intent to threaten and intimidate is unimportant; as long as the KKK is careful to burn their cross on a lawn where it won’t catch trees on fire, where’s the harm?
Here’s what I find for phobia:
And what do you find under “ailurophobe” and “homophobe”? Amp has already pointed out that the OED definition of “homophobia” includes hatred as well as fear. I’ll point out that “a phobia” is not the same as the suffix “-phobia”. You can do better than transparent linguistic tricks, Ron.
What other kind of things have been taken (or are anticipated to be taken) as evidence of a “hate crime” and fulfill the criteria given in earlier posts quoting the provisions of such laws?
And again, you don’t seem to have any beef with other crimes–arson, attempted murder–where intent is an issue. Why the sudden concern about “thoughtcrime” only when hate-crimes are involved?
The ‘specifics’ are that you use exactly the same type of evidence to show intent as you would for any other crime–statements by the defendant, behavior consistent with the intent, and so on. You appear to be asking for an exhaustive list of everything any human could possibly do that would show hateful intent. Why?
Amp said:
“Fear or hatred of homosexuals and homosexuality.”
Hey, I’ll agree with that definition. Homophobia exists; the extreme example would be the two human animals who killed Matthew Shepard.
“This assumes something which is at issue. I’d say that that it IS true that disapproval of homosexual behavior specifically (as opposed to sexual behavior generally) is necessarily irrational.”
Which is where I came out when I objected to the use of the term that gets pushed by many activists; that dissaproval of homosexual behavior is necessarily irrational (and/or is based on fear). I disagree. I suspect, however, that you and I could go around and around on that and not find a basis for agreement.
Just bumped into this great discussion while researching for one I’m involved in, on the same topic, right now.
There are two core issues to address with the law:
-actual physical harm (loss of freedom and or property)
-moral harm (perception of harm, feeling hated, etc…).
In the case of a person being beaten, abused, harmed physically because they are of a specific group, the act, harm and hate are co-mingled to a degree that makes the perception a reality. I’m ok with idea of hate crimes being advanced and refined to address these things.
However, when the act really does not affect the person and only property, I’m not totally sure the combination of law, as we currently see it embodied in hate crime statutes, makes the best sense. Why?
Because it becomes a matter of perception. Words and symbols really have only the impact one lets them have. Call me something and I can make a big deal out of it, thus my perception of harm (moral harm) is high. I could also simply ignore it for the foolish act that it really is and the perception of harm is then little to nothing.
Put another way, is there really any harm done when the target of the expression had no success in making said impression? What if the target thought it was humorous? Would the law then apply the same?
Shouldn’t we then classify these things into physical harms (loss of property & freedom) and moral harms (being offended)?
If so, the person being harmed should then be entitled to a criminal remedy for the physical harm and a civil remedy for their perceived moral harm.
One other contributing element here is the idea that we are all equal under the law. My core problem with hate crimes, as we currently appear to be evolving them, lies in the inequality they bring into the law. Either we hold everyone equal under the law or we just don’t. If we don’t, where do we draw that line? Having to address questions like this seems to me a huge step backward.