So, PZ wrote a post recently that, among other things, got me thinking about hate crimes legislation. I think the story in the post is utterly ridiculous, that the church overreacted terribly, that the kid was (at worst) a jerk, and that suggesting that “not immediately eating a holy cracker” is some kind of hate crime is an absurdity beyond measure.

But, hate crime legislation is its own kettle of fish with its own set of problems. Generally, from my understanding, the hate crime statutes tend to increase the punishment given for something that is already a crime, based on the perpetrator’s obvious feelings of hate toward the victim’s particular minority group.

On one hand, this looks an awful lot like thoughtcrime. You’re punishing someone for what they think of some group–gays, women, blacks, foreigners, whatever. Thoughtcrime is pretty much universally dangerous, impossible to prove without telepathy, and the first step onto a very slippery slope toward various Orwellian nightmares.

On the other hand, and this is the way I tend to see it (at least, so far as I understand hate crime statutes–they may differ from place to place, and my opinion’s a bit conditional on the details), we already change the punishments for various crimes based on thoughts. The difference between first degree and second degree murder is premeditation–planning the crime before committing it. Things like conspiracy and collusion are similar to various degrees.

It seems to me that hate in a hate crime is similar to premeditation in a first-degree murder. It’s not entirely the same; it seems to me that hate crimes would tend more to be crimes of passion, crimes of the moment, while premeditation implies planning to harm a specific person or group or place in a specific manner at a specific time. In a hate crime, it’s more of a loose plan to harm some member of a specific group under some condition or as a principle. A gay-basher probably doesn’t walk into his local redneck bar thinking “I’m a-gonna drag Queer Charlie ’round behind my pickup truck tonight,” but if he’s gone around for years saying “if a fag hit on me in a bar, I’d kick the shit out of him,” and then he kicks the shit out of some gay guy for hitting on him in a bar, I’d say that qualifies for a harsher sentence than if he’d just beat up some random guy. It’s not quite premeditation in the sense of first degree murder, but it’s certainly a voluntary predisposition. It’s a soft sort of premeditation, but it suggests that there’s more than just passion and the heat of the moment at work.

Keep in mind that my legal knowledge is almost entirely culled from courtroom dramas, so I may in fact be talking out of my ass. Feel free to tell me if I am.

12 Responses to Haterade

  1. Akusai says:

    Another problem with the type of hate-crime legislation you described apart from its reliance on thoughtcrime (which I think it has, in a different way than the levels of murder, but more on that in a second) but that it protects certain groups and not others, therby giving implicit legal support to the idea that those groups are more important because it’s not okay to hate them while it is okay to hate others.Now, as I understand it, most hatecrime laws don’t function quite like that as they apply equally to minorities and majorities, i.e. you can get punished for a racially motivated crime against Asians, blacks, Hispanics, or whites the same. That’s a hell of a lot more fair.It still runs into the problem, though, of defining which type of groups it is okay to hate. So far hate crimes legislation seems to cover ethnic groups, groups as dictated by sexual preference, and sometimes religions. But what makes these special? Ethnic groups are decided at birth and are not based on the person’s own decisions, and probably sexual orientation is, too. So is it a priori groups we’re not allowed to hate? No, because religion is something that is added to a person’s identity later in life and is often entirely mutable, so we can hate ad hoc groups, too.So what’s the general criterion? Would you get hit with a hate crime statute for murdering a mentally handicapped person if it came to light that you really hate retarded people? What if you ran Peyton Manning over in your car because you really, really hate professional atheletes? There’s on inborn and one chosen group that are probably not protected under hate-crimes legislation, and I couldn’t tell you why.So is it groups that have historically been discriminated against? Add the mentally handicapped and insane to that list. But how would it really apply to Christians, then, who haven’t faced major discrimination for centuries and centuries and were (and are)directly responsible for a lot of the discrimination these laws are meant to punish?Of course, there may very well be a good set of objective criteria and I’m just not well-informed enough to know it. If there is, I’d like to hear about it.Regarding premeditiation vs. hate crimes, I think the first is a case of how you committed the crime, while the second is more why you committed the crime. It’s the difference between the government saying “You aren’t allowed to plan murders” or “It is worse to assault someone with a deadly weapon than to do so unarmed,” and the government saying “Here is a list of people you are not allowed to hate.”Now, that’s not exactly what’s being said, because someone can hate and hate and hate all they want until that hate motivates a crime. But I can’t plan murders all I want and just not commit them. We have laws against conspiracy to commit, because the act of planning a crime has been defined, in and of itself, as a crime.This is a bit of a disturbing precedent where hatecrime legislation is concerned. Will we ever reach a time where the hate itself, unattached to a violent act, is itself criminalized?But even if that never happens, when you kill a person for reasons of racial, sexual, or religious prejudice, the government explicitly tells you “It’s wrong to murder, and it’s especially wrong to murder for those reasons because you’re not allowed to hate those people.” It doesn’t matter who “those people” are, the government is telling you you can’t hate them, and giving you a harsher prison sentence because of it. That is punishing thoughtcrime.

  2. Dunc says:

    No, you’re both completely missing the point and fundamentally misunderstanding the nature of what a hate crime is. It’s not the “hate” itself that’s the problem, nor is it the group against which the crime is directed. The point with hate crimes is that the obvious victim of a hate crime is not the only victim. Hate crimes are also threats of future similar crimes against other members of the target hate group. Publicly lynching a black man is a very different matter from just killing him – it also sends a message to all other black people that “this could be you next if you don’t watch your step.” Hate crimes are a form of terrorism, directed against specific groups or communities.If you’re interesting in the subject, I would highly recommend reading Dave Neiwert. This post would be a good place to start.”Hate crimes attack not only the immediate victim, but the target community — Jews, blacks, gays — to which the victim belongs. Their purpose today, just as it was in the lynching era, is to terrorize and politically oppress the target community. The laws against them resemble anti-terrorism laws (which, it must be noted, are also predicated on enhancing the sentence based on the motivation of the perpetrator) in this respect as well.”

  3. Dunc says:

    I would also highly recommend this, also from Mr Neiwert.

  4. Dunc says:

    Sorry, posting too fast… On the subject of “thought crimes”, a salient quote from my last link (as I know many readers don’t bother to follow them):”Frankly, I’ve always found the argument that these laws are “thought crimes” to be a little creepy, since it is echoed in the claims of the Christian Right that hate-crimes laws that include sexual orientation are an attempt to impinge upon their freedom of speech. But gay-bashing is no more a free-speech right than is lynching or even, say, assassinating the president. Political thought may motivate all of them, but that doesn’t mean the Constitution protects any of them.”Lots and lots of other good stuff on the subject over there.

  5. shortpants says:

    I’m pretty sure there was a recent vote in Congress NOT to validate crimes against women and Teh Gays as hate crimes, no matter the intent and/or scope of the crime. If you’re gonna have hate crimes for anybody, I would think these would both make pretty good candidates.I think hates crimes are bullshit, kinda. Yeah, there’s heinous stuff that should probably be punished more harshly than other crimes, and it’s pretty crappy to commit an act against a person just because they are black/gay/old/nonXtian, especially with the intent to fuck with all people who are black/gay/old/nonXtian, but there are many cans of worms opened up when you categorize something as being “more” wrong than other wrongs. What makes child rape plausibly worthy of the death penalty but not the rape of a 20-year-old, or a really old lady? Now you have to justify your reasons for putting this one crime up higher on the Bad Pedestal, and your reasoning is likely not the same as that of others. Look at Justice Roberts and Justice Breyer – VERY different priorities between the two of them.The Law is not perfect, Justice is not blind, and people are going to fuck things right up, so it’s likely best not to make Special Legal Rules for people. Nothing wrong with lumping everything together into “Just Don’t Do That” territory.

  6. Akusai says:

    But gay-bashing is no more a free-speech right than is lynching or even, say, assassinating the president.Of course gay bashing is a free-speech right. Just because it is offensive, wrong, and unpleasant does not mean it is unprotected. Drawing a parallel between speech, however vile, and outright murder is just ridiculous. We cannot just say that the only “free” speech is the speech that is generally societally approved and inoffensive. Either we protect all speech that does not directly cause harm (i.e. the old “fire in a crowded theatre,” or saying “kill that faggot” and then somebody murders a gay man), or what’s the fucking point?Speech you do not agree with cannot just be written off as “not protected.” From a purely pragmatic standpoint, what happens when you’re on the other end of that power struggle.And, though I will admit I haven’t read your linked articles because I’m about to go to bed, I do from this vantage point fail to see how a hate crime against a single member of a group constitutes an actionable offense against every single member of said group. The lynch mob murdered an individual, and they did it because they’re racist as hell, but to turn around and say that they somehow committed a crime against every single black person boggles my mind. They killed the one person, and plenty of other people in his ethinic group (though I’m sure not all) will be offended, disgusted, and frightened by it, but we don’t jail folks for offending, disgusting, and frightening people.I would think, too, that a public and Constitutionally-protected KKK march wherein a group of ignorant assholes calls explicitly for the reenslavement/expulsion/murder/whatever of an entire race would be far more offensive, disgusting, and frightening than a single murder, but that’s not a hate crime. At least not in the US, and I sincerely hope that it never becomes one.

  7. Akusai says:

    Sorry about the double post, and again I still haven’t read Mr. Neiwert’s stuff, so maybe he addresses this, but I still think that no matter how you justify hate-crimes legislation, there has to be some set of objective criteria that determines which groups are being protected. Otherwise hate-crime judgements will be necessarily arbitrary, whenever a judge or jury is convinced by a prosecutor that the crime in question was motivated by a desire to intimidate an entire group of people, however the lawyer wants to define “group.”No matter your justification (discouraging prejudice, extra-harsly punishing intentional racial/sexual intimidation, whatever), unless you have set criteria for which groups (or types of groups) can be rightly said to have been the victim of a hate crime, the entire thing is far too subjective to be anywhere near right or just.

  8. Dunc says:

    Mr Neiwert refers to “gay bashing” he’s not talking about verbal gay bashing, he’s talking about physical gay bashing – i.e. assault or murder. I’m sure we can all agree that those do not constitute protected speech.I strongly suggest you read up on the subject further.

  9. Dunc says:

    Ok, another double post here, sorry…The lynch mob murdered an individual, and they did it because they’re racist as hell, but to turn around and say that they somehow committed a crime against every single black person boggles my mind.I think you misunderstand the purpose of lynching. The primary purpose of lynching was always to repress and intimidate the entire black community – the identity of any individual victim was usually entirely incidental. If your intent is simply to murder an individual, you don’t get the whole town out, have a barbecue, and sell fucking picture postcards. The explicit purpose of that shit is to intimidate an entire community.

  10. Ezekiah says:

    I decided to read the original post that started this. Though I recognize that this post is it’s own entity. I do want to highlight something. Susan Fani implied that taking a freely given communion wafer and not eating it immediately constituted a hate crime. Which means that she is a deluded and offensive person. Because hate crime laws don’t make new laws where old ones didn’t exist, they should make the punishment to old ones stronger. On the topic of this post though: akusai (I believe) said: “we don’t jail folks for offending, disgusting, and frightening people”. But this isn’t true. At least about the frightening people. Stalking is a jailable offense which of the main aspects is the frightening of the victim (coupled with the implicit threat of violence). This is exactly the case with a hate crime. When a specific group is targeted for some reason, the purpose at least partially is to convince the entire population that any of them could be subject to the violence. Thus it constitutes a direct threat.On another (less logical) level, some of the comments here give me the willies. Some are acting like this is some sort of precedent setting thing. Most of the time it is a struggle to prove what is necessary for hate crime status to be triggered (sorry if this isn’t the correct terminology) and historically (at least) hate crimes were often committed in communities where the actions were condoned. Prosecution for hate crimes is probably well below the amount of how many are actually committed.One other way to think about it (though probably not a legal rationale) is that certain groups are forced to live with a baseline of fear much higher than others. In my mind, one thing that hate crime laws potentially does is make a member of those groups feel less exposed on a daily basis, and give members of all groups closer to an equal baseline.That’s the other thing. It seems like the arguments against hate crime protection are sort of a: “well I don’t need this, I don’t see why other people would” variety.Plus, we *do* protect groups differentially, and rightfully so. The mentally handicapped, childen, the elderly. We do this (yes) because they are oftentimes unable to protect themselves, but ALSO because they are more likely to be taken advantage. While I’m most certainly not saying those protected under hate crime laws are impaired, I am saying that they are similarly more likely to be taken advantage of (in this case, “taken advantage of” is euphemistic for having violence done against them).Not

  11. Akusai says:

    Dunc,I’ve read the Neiwert pieces you linked and it has given me quite a lot to think about. The idea fo hate crimes still creeps me out on a fundamental level, but I certainly see where he is coming from in a number of his points. I’ve always thought that hate-crime laws were a good idea with good motivation that just played out necessarily poorly, and now I have some reason to believe they don’t necessarily result in unjust consequences.Still, though, I question which criteria is used to determine the types of groups that are covered under hate-crime legislation. He mentions that most states have hate-crime laws on the books covering gender, creed, and ethnic group, and many now cover sexual orientation and disability as well. But why are these categories of groups protected? It seems like they are protected because they are (1)easily definable and pretty black-and-white and (2)very often the basis for hate-driven discrimination. So are those the criteria under which we choose which types of groups to protect? Are those criteria applied regularly?Presumably, a racist bully in school who beats up a black kid while shouting racial epithets might be hit with a hate-crime charge. But what of the bully who beats up a nerd/geek/dork while decrying Nintendo and fantasy novels (stereotypical, I know, but bear with me)? Lots of violence is caused by out-group hatred that festers into aggression, and hate-crime laws only recognize certain types of out-group aggression.Of course, I’m not sure there is a way to widen the umbrella without becoming too vague. And just because it doesn’t work perfectly doesn’t mean it doesn’t work at all.And one minor nitpick: I’m not sure why you think he is using “gay-bashing” to mean actual violence against gays. He only uses the phrase once before, and as a modifier: “gay-bashing hate crime,” which implies, to me at least, a hate crime wherein the hate was gay-bashing. It still seems to me that he is saying freedom of speech does not extend to saying one hates homosexuals, and as unconscionable as I find homophobia and gay-bashing, the idea of outlawing such speech I find even more unconscionable.In Canada, for example, hate-crimes laws do extend to speech, making it, in some cases, illegal to merely speak one’s mind. This is legal in Canada, as they have no first amendment, but I find it to be immoral in the utmost.

  12. Dunc says:

    AkusaiGlad I’ve given you something to think about. Obviously. there is plenty of scope for legitimate disagreement when it comes to a specific legal implementation of the concept of a hate crime, and any such implementation is unlikely to be perfect in all conceivable circumstances. However, these objections apply equally to almost all other types of law.And of course there is a very big distinction between increasing the penalties associated with an existing crime based on motivation, and creating entirely new crimes. I too have very strong reservations about any steps to criminalise “protected speech” as you have it in the US – as a UK resident the legalities here are somewhat different, and this is one of the areas in which I think Europe could stand to learn from the US. I can see an argument for criminalising incitement to commit a crime, but I’m not entirely clear what the US position is on this. Beyond that, I’m generally opposed to criminalising speech – but I am prepared to recognise that this may vary according to the social and cultural context. For example, I’m certainly not a fan of Germany’s anti-nazi laws, but I can understand why some might feel they are necessary in that particular context – and of course, it’s up to the Germans as to how they want to run their legal system.”And one minor nitpick: I’m not sure why you think he is using “gay-bashing” to mean actual violence against gays. He only uses the phrase once before, and as a modifier: “gay-bashing hate crime,” which implies, to me at least, a hate crime wherein the hate was gay-bashing.”I read him as meaning “gay bashing” as a specific type of hate crime, rather than as describing the motivation for the crime – i.e. that a hate crime committed against a gay target is “gay bashing”. I think that interpretation sits better with the rest of his writing on this and similar subjects.

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