Hate Crime Legislation

Christianity Today reports on the hate crime legislation pending before Congress.  While there is a debate over the implications of this bill for religious free speech, hate crime legislation is in principle antithetical to the great tradition of freedom of speech in our country. 

Andrew Sullivan makes the cogent point about hate crime legislation:

The real reason for hate crime laws is not the defense of human beings from crime. There are already laws against that - and Matthew Shepard's murderers were successfully prosecuted to the fullest extent of the law in a state with no hate crimes law at the time. The real reason for the invention of hate crimes was a hard-left critique of conventional liberal justice and the emergence of special interest groups which need boutique legislation to raise funds for their large staffs and luxurious buildings.

He also quotes another writer pointing out that hate crimes punish motivation, not intent.  Motivation has never been part of the crime, though it sometimes helps prove the crime.  (Note that a motive never has to be proved to make the case for a crime because it's not part of the crime.)  Intent is part of the crime.  So hate crimes add a new element to the crime increasing the punishment.  "Exactly," Sullivan points out.  One of the reasons motivation has never been a part of the crime and punished is because our beliefs and affections are not accessible to the government, who prosecutes the crimes, and probing them as part of the crime is extremely intrusive into individual beliefs.  Government doesn't tell us what to believe or punish us for what we believe because that has always been considered a dangerous slippery slope of government intrusion.  Hate crime legislation introduces a new and unique precedent for government intervention into a sphere American law has always considered off limits.

Hate is wrong, it's immoral - against anyone for any reason.  But our legal system has wisely recognized until now that not all morality should be legislated.  And the affections of citizens, good or evil, is the purview of morality not law.

Greg explains it this way:

Hate crime legislation, then, turns out to be not really about hate, but politics. It's not hatred for the victim that is punished. That's covered under existing statutes. Rather, it's hatred for a protected class--African-Americans, Jews, homosexuals, etc.--that's punished under hate crime laws.

Such legislation makes two crimes out of one. The assault is a crime against the victim. The hate is a crime against the victim's group. Yet how does one make sense of a crime against a group that is a different crime from the one against the victim? Groups have no rights according to the Constitution.

Comments

[Matthew]

"But our legal system has wisely recognized until now that not all morality should be legislated. And the affections of citizens, good or evil, is the purview of morality not law."

It's funny that you ignore this principle when it comes to recognizing marriage rights for gays.

[kpolo]

The question of gay marriage is not only one of morality, but also of biology. The govt. interest in the institution of marriage exists solely to protect children who are the product of a father and mother. You cannot argue that.

The govt isn't prosecuting gays who are getting married. They just don't get official recognition and privileges that are reserved for heterosexual couples. The govt is simply recognizing that one form of behavior is more beneficial to society (and arguably the individual) than the other. No different from tobacco or drug use.

[RonH]

A hate crime, like an act of terrorism, is intended to go beyond injuring the victim. It is intended to have a chilling effect on the group. We all have an interest in discouraging those who would try to have influence in this way.
RonH

[David]

Hate crime is not like terrorism. In terrorism there is a physical consummation of the mental intention to harm the group. Unless I am misunderstanding what hate crime legislation is purporting, there is no physical action taken against the targeted group.

We punish terrorists for killing/attempting to kill people and not because they hate infidels, AKA Americans.

[Crescent Shaped Hormoon]

>> "It's funny that you ignore this principle when it comes to recognizing marriage rights for gays."

"not all morality should be legislated." (Emphasis mine)

Even if you were right, matthew, you seem to have skipped two key words.

[Damian]

The real irony is that in order to determine whether a hate crime has been committed, we need to look at the superficiality of the race or sexual orientation of the offender. If the offender is not a member of the "victim class" then it will more likely be ruled a hate crime. This will be based on the very thing that should not matter, namley race, ethnicity or sexual orientation.It is even more likely that true motive may in fact not even be considered and that group membership will be the only criteria. In other words excessive punishment based on appearances.
On the flip side it may end up giving a special protection to an offender that happends to be a member of the victim class by not considering him as having committed a hate crime only because he or she is a member of the victim class even though there may have in fact been a motive of hate (what ever that means). In other words lighter punishment based on appearances.

Just a bad idea all the way around.

[Naturallawyer]

"[T]he affections of citizens, good or evil, is the purview of morality not law."

I disagree with this. There are times when the affections of citizens must be considered as a legal matter. For instance, consider the distinction between manslaughter and murder. When a man comes home to find his wife in bed with another man, and he just "snaps" and kills him on the spot, in some jurisdictions (it depends on the state) he may be guilty of manslaughter rather than murder because he presumably loved his wife. If it could be shown that he didn't love his wife to beginwith, he probably gets murder rather than manslaughter. The law must sometimes consider affections and motivations to apply an appropriate punishment (justice).

It could be argued that hate crimes legislation, to the extent it is only meant to "piggy back" on other existing criminal sanctions, is intended to heighten punishments because we deem certain motivations more deserving of punishment (say, cold blooded killing, which is arguably worse than instantaneous revenge because it is aimed at a completely innocent person).

I am opposed to hate crimes legislation, but it's because it doesn't accomplish its goal. It is, as you say, a political game for certain interest groups. What about obese people? Former gang members? Former homosexuals? Ex-spouses? There are all sorts of groups of people who are hated for evil reasons (i.e. reasons deserving of punishment), and there will always be categories of people to add. Hate crimes legislation is really just a way of requiring juries to punish these offenses more harshly than other offenses, but it ends up creating inequities because of groups that it omits.

[Jason]

"It's funny that you ignore this principle when it comes to recognizing marriage rights for gays." Posted by: Matthew

Gay marriage doesn't become an issue of legislating morality until its proponents introduce legislation to force their morality upon a public that overwhelmingly does not want it. Also, there is no such thing as "gay marriage rights" just as there is no such thing as "straight marriage rights." No one has any right to marry.

[RonH]

David,

Both hate crime and terrorism have what you might call direct victims and indirect victims: the people injured or killed and those who are threatened. Even those who are neither have an interest in having these crimes treated differently: we don't want to live an a society where such actions have traction.

RonH

[David Blain]

Ron,

If being a victim is what determines whether something is a crime then terrorism and hate are certainly similar. For that matter, hate is similar to any other crime/offense in the books. But this is to loose of a standard to determine whether the government should intervene. The reason for the governments intervention in terrorism is because of the killing/attempted killing at the hands of the terrorists and not because of the "speech" of the terrorists.

The grounds for government intervention in "hate" (defined by who? and applicable to who?) crime is the speech alone. No action is necessary. This is why I say terrorism is a poor comparison with hate crime legislation.

[David Blain]

Hey Natural Lawyer,

I disagree with your adultery hypothetical. If I am remembering my Crim Law class correctly, it is only manslaughter if certain mitigating factors are present. The husband's affections for his wife are not necessarily relevant in determining whether the mitigating factors are present. They can be but only in connection with the other factors that must be considered.

Even more so, the affections of the husband are not divorced from the standard of society because the provocation must be one in which a reasonable person would have been provoked. It is a synthesis of the objective and subjective characteristics of the crime.

I may be wrong in my recollection of the factors, but just thought I would throw that out there.

[Kevin W]

RonH,

You wrote:

“Both hate crime and terrorism have what you might call direct victims and indirect victims: the people injured or killed and those who are threatened.”

If someone was murdered in the parking lot of my local gas station, I would feel threatened. How would you classify that?

[Kevin W]

As Greg said, it is about politics. Groups that would be protected under hate crime legislation will vote for the politicians that push for it.

Crimes against children are among the most heinous, yet all too often child abusers are let off the hook with minimal punishment.

Little children can’t vote.

[Jason]

You know what I find incredibly ironic about the "hate crimes" laws? The fact that they are written primarily with homosexuals in mind, and you will never find more hatred against evangelical Christians in the Western Hemisphere than you do among homosexuals. They attack, ridicule, mock, shout down, harass, intimidate and threaten Christians all the time, but especially during their "pride" events and protests.

[Mikey]

It seems to me that Hate Crime laws would violate the equal protection clause in the Constituition, if the laws were ever challenged in the courts. Does anyone know if a challenge has ever been made or if one is pending, perhaps?

[RonH]

Kevin W,

This murder in the parking lot... Was it aimed at, say, making the neighbors and people like them across the country stay indoors? Are there other people winking at the murderer because they also want these people to stay indoors?

We have a background level of crimes committed in anger, greed, desperation, etc.

In another category are crimes intended to change society or the course of history.

Crime and speech are two different things.

Is it too far off topic to ask what y'all think of the new Irish blasphemy law?

Jason,
My idea of a prototypical hate crime is lynching. Nothing to do with gays.

Anybody,
But hmm, is lynching a hate crime or is it terrorism?

RonH

[Dennis]

I think the "not all morality should be legislated" argument is poor. The same point can be made using what I think is a more accurate argument, which is that government shouldn't be allowed to attempt to control our beliefs.

[Naturallawyer]

David Blain:

You didn't disagree with my point at all. As you said, "The husband's affections for his wife are not necessarily relevant", but "can be" (emphasis mine). That's why I mentioned the loveless marriage as the potential case where it wouldn't be relevant. The very fact that private motivation "can be" considered in some cases was my point: we shouldn't assert that the law can never take such motivations into consideration when assigning a criminal punishment.

[Naturallawyer]

Kevin W said:
"As Greg said, it is about politics. Groups that would be protected under hate crime legislation will vote for the politicians that push for it.

Crimes against children are among the most heinous, yet all too often child abusers are let off the hook with minimal punishment.

Little children can’t vote."

Kevin precisely identified the problem with hate crimes legislation. It creates inequities. Frankly, I think most crimes should be punished with greater severity than they are now, so the problem doesn't lie in the "hate crimes cases," it lies in the non-"hate crimes cases." (If someone commits a murder because of the proscribed "hate," any statute that ensures a harsher punishment has a beneficial effect, even if it was meant for a different purpose.)

Crimes against groups of people that are not protected under the statute will be punished less severely if the type of "hate" harbored by the criminal is not named in the statute. That's simply not just.

There is the additional "free speech" argument against hate crimes, that would-be criminals will be deterred from speaking their minds out of fear that their future violent crimes will be punished more harshly. The solution is not to commit violent crimes. If, however, the laws are applied to non-violent crimes (say, non-violent protest), you have a free speech problem. Speech-related non-violent "crimes," when committed as part of a passive resistance movement (see MLK), should not receive greater punishment based on the content of the speech.

[David Blain]

Natural Lawyer,

Yeah, by the end of my post I realized I was agreeing with you.

[Louis Kuhelj]

Why don't we call hate crime legislation what it really is? It is revenge perpertrated by the justice system on behalf of a particular group against an individual of another group. Last I heard, revenge is not equivalent to justice. It would seem to me that this type of legislation has plenty of venemous hate within its intent and since when has hate erased hate rather than give birth to more of it?

[Pro Life]

Isn't right wing talk radio and TV guilty of hate crimes according to the definition? All of the anti Democrat blabber and the frenzied rage it works people up into is no different than the hate I see directed towards other groups.

PS I'm not a Democrat.

[David Blain]

Natural Lawyer,

I am actually confused as to the meaning of the statement you took exception with.

In reference to criminal law, strict liability crimes are few and far between. The "affections" of the citizen, i.e. his subjective intent, are considered in varying degree. When these affections are evil enough the severity of the punishment will be adjusted to punish/deter that evil. So the statement could not be referring to this, could it? It just seems patently obvious that it is indeed the affections of the citizen consummated by a physical act that is the purview of the criminal law.

Wouldn't you agree? Or am I missing something?

[Naturallawyer]

David:

I'm not sure I understood what you were asking. However, maybe this will clear it up...

You said: "When these affections are evil enough the severity of the punishment will be adjusted to punish/deter that evil." With that I agree.

The original post (at the top of this page) said: "And the affections of citizens, good or evil, is the purview of morality not law." That statement is contrary to your quote.

The only thing I've been objecting to is the idea that the "affections of citizens" are beyond the purview of the law, or the idea that they are irrelevant to assigning a just punishment. My objection would appear to support hate crimes legislation, but I oppose hate crimes legislation for other reasons (as I explained above).

Are there still any missed messages between us? Let me know if I didn't understand your question.

[Naturallawyer]

David:

I should add that when you implied the "affections" are the same as "subjective intent," that's not how I'm using the word. I'm using "affections" as in "motivation," not "intent." A person can intentionally kill someone for a variety a motives (revenge, hatred, persecution, survival, politics). The intent is distinct from the motive.

While the criminal courts must take intent into account in the vast majority of cases, the motive isn't necessarily relevant.

[Counterstrike Source]

"Anybody,
But hmm, is lynching a hate crime or is it terrorism?"

That depends. I think lynching can be done as an act of terror. Examples from the civil rights movement come to mind. The term "Terrorism" has become a bit of a noun speciffic to acts commited by islamic extremeists. I think that Civil-rights era lynching is comparable to that. Infact... due to the effort required in lynching someone, I would say most cases are likely also ment to serve a... Terror-y purpose, with the possibility of also being a hate crime.

I think exceptions to that would be hanging someone in a private place (thier own home, deep in the woods.. etc.)
In that case, the killer may just simply be out of his mind.
Or you would atleast have to give those cases a bit more thought.

[S500 G652]

A pure hypothetical, but interesting to throw into the mix: if Christians become a minority group in the U.S., as I fear it will, and if attacks against the Christian minority become commonplace, will liberals be willing to support christian hate crime legislation? Should we preempt the issue and start petitioning our representatives now?

[Counterstrike Source]

Thats a fine question S500

[Louis Kuhelj]

S500

No! The liberals are on a crusade to make certain groups minorities in the public eyes. They are only interested in those being considered minorities to the exclusion of all others. What actually makes a minority an objective minority seems to have been redefined to what is subjectively considered one. The first thing lost in liberal philosophy seems to be objectivity.

[Kevin W]

Louis,

Exactly. I once read (or heard) about two politicians discussing Cuban Americans as a minority, and the one said they were indeed, a minority. The other politician responded, “but they vote Republican don’t they?”

[Naturallawyer]

I have seen the term "minority" discarded in favor of "historically disadvantaged groups." Society won't put Christians into that group for a long time. If they ever are, it will mean a lot of scary things happen between now and then.

[David Blain]

Natural Lawyer,

I was just throwing some thoughts out there. Intent and motivation are two different considerations but motivation is often used as evidence for intent, so to say that the affections of man is the purview of morality not law seems unrealistic.

I suppose I was just asking what you think the statement means.

[Louis Kuhelj]

"I have seen the term "minority" discarded in favor of "historically disadvantaged groups." Society won't put Christians into that group for a long time. If they ever are, it will mean a lot of scary things happen between now and then. "

Mayge not in this country, but in muslim countries christians have been historically disadvantaged. I think that being thrown to the lions and curcified and made into human torches kind of puts them in being historically disadvantaged. But it is likely that the scope under consideration will stop at the borders of US and within the bounds of american short term memory.

[Todd]

I have been thinking... if we can have hate crimes that add punishment to the offender based on motivation, why can't we also have "love crimes" where you get a lesser degree of punishment based on your motivations?

For example, if I love women (and I do happen to love them- I am married to one and I have a daughter to boot), if I end up committing a crime against a woman can I get a lesser "love crime" sentence?

It makes sense to me.

[Sage S]

RonH wrote: "We have a background level of crimes committed in anger, greed, desperation, etc.

In another category are crimes intended to change society or the course of history."

But not every crime committed with the intent to change society is directed in hatred toward a group of people. Are you suggesting that crime motivated by hatred toward a group of people with the intent of repressing those people or inciting further hate-based actions against that group constitutes a hate crime?

The problems with this are several. First, any legislation must never list a sample of such protected groups, since doing so would (as Naturallawyer pointed out) necessarily exclude every group not on that list. So the equal protection clause would require universal language about ANY group that was targeted vis a vis any individual member of that group.

The second problem here is that we can never pin down where antipathy toward the individual ends and general antipathy to everyone like the victim begins. If someone robs someone who looks weak / vulnerable, are they subtly attacking everyone who appears similarly? Every victim is a member of many subcultural people groups. Which group was the indirect recipient of the criminal's hatred? Won't it pan out to be the group with the most influential lobbying constituency? This vague psycho-analyzing of legal compunction opens the courtroom up to the shifting winds of political power, which is a miscarriage of the system.

Also, on a very real level, every crime is against humanity. The criminal wants to get by with his violation; he wants to "change society" around his simple crime. So criminalizing his hatred of a general group proves either too little or too much, neither of which are relevant to the prosecution of his harmful act.

[Rob]

"HATE BILL"-OBSESSED CONGRESS

If "hate bill"-obsessed Congress [and Obama] can't protect Christians from "gays" as much as it wants to protect "gays" from Christians, will Congress be surprised if it can't protect itself from most everyone?
If "hate bills" are forced on captive Americans, they'll still find ways to sneakily continue to "plant" Biblical messages everywhere. By doing so they'll hasten God's judgment on their oppressors as revealed in Proverbs 19:1.
(See related web items including "David Letterman's Hate, Etc.," "Separation of Raunch and State," "Michael the Narc-Angel," "Obama Avoids Bible Verses," and "Tribulation Index becomes Rapture Index.")
Since Congress can't seem to legislate "morality," it's making up for it by legislating "immorality"!

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