Be Careful What You Wish For (Why I Hate Hate Crimes Legislation, But I Love Hate Speech)

By Sarah Jane Braasch-Joy

In loving memory of my baby brother, Jacob Michael Braasch (01/28/86 – 02/02/10)

I saw a woman in niqab on the UC Berkeley campus the other week. I was shocked. I didn’t approach her. I didn’t speak to her. She was with two other women in hijab, on the opposite side of a wide walkway.

But, I was shocked. And, appalled. Here was a woman (or, at least, I assume she was a woman), in the heart of what is arguably the most politically liberal university campus and city in the US, a fount for civil rights and 60′s hippie culture, engaging in a brazen act of gender segregation and slavery in the egalitarian public space of a secular, liberal, constitutional, democratic republic. I think it is a great shame for a woman living in a secular democracy to perpetuate a barbaric, patriarchal religio-cultural tradition when women are fighting and dying across the globe to be free from gender segregation and slavery.

My views on public anti-mask laws (burqa bans, colloquially) as both public safety and gender desegregation measures are well known. We can no more tolerate gender segregation in the public space than we can tolerate racial segregation in the public space, above and beyond the simple fact that we can neither protect nor prosecute those whom we cannot identify, creating an untenable public safety and security hazard.

I expressed my great upset at witnessing this barbarism on the UC Berkeley campus on the English-language facebook page, which I maintain for Ni Putes Ni Soumises (Neither Whores Nor Submissives). Ni Putes Ni Soumises (NPNS) is the amazing women’s rights organization, with global headquarters in Paris, France, which grew out of the outrage over the egregious gender violence being perpetrated upon the Muslim immigrant women and girls of the ghettoized suburban housing projects surrounding the major cities of France. I maintain this page to spread the Ni Putes Ni Soumises message of Secularism, Gender Equality, and Gender Desegregation throughout the English-speaking world.

There are a handful of misogynistic Islamists who occasionally try their hand at debating me on such subjects as US constitutional law and abortion rights on my NPNS facebook page. There’s little I enjoy more than publicly humiliating them online. In truth, I owe them no small amount of gratitude. Every time they bait me, and I engage them, my readership jumps precipitously. And, I relish the opportunity to vent a little of my barely contained rage.

So, of course, my misogynistic Islamist readers couldn’t pass up a choice opportunity to point out my obvious anti-immigrant racism and bigotry. (I’ll admit to being purposely and purposefully provocative in describing the event as an abomination.) But, after comparing the burqa/niqab to the offense of having to watch a woman walk across campus in a mini-skirt, my Islamist interlocutors took a more interesting tack.

They accused me of having perpetrated a hate crime against Muslims and threatened me with hate crimes prosecution, under the guise of being terribly concerned that I not place myself in legal hot water, of course. It was a public service on their part, really. Of course, I pointed out that, not only did I reject their presumption of the role of spokespersons for the Muslim community as a whole, but that gender-based hate crimes are also included in the federal hate crimes act, not to mention the fact that I refuse to be deterred from exercising my constitutional right to free speech.

But, here’s the thing. They’re right. I have reason to be worried. And, they don’t. Because it’s always ok to hate women in America. This is why they felt no qualms about hatefully haranguing women with impunity and turning around and intimating that I was opening myself up to hate crimes prosecution by attacking the niqab. (In fact I said nothing hateful whatsoever about Muslims, or even Islam. Ni Putes Ni Soumises is not anti-religion or anti-Islam, just anti-religionism and anti-Islamism. Most of the women advocating on behalf of secularism for NPNS are Muslim immigrants themselves.)

But, they understand that religious groups enjoy a privileged position, which is denied to women. They understand that the likelihood that they should ever be prosecuted for a gender-based hate crime is all but non-existent, while the possibility that I could ever be prosecuted for a religion-based hate crime is quite real. They understand that even if they should decide to go on a raping rampage against women, that their misogynistic diatribes will never be unearthed, nor will any serious attempt ever be made to unearth them, in all probability. Because no one cares if you hate women in America.

For the rest of my life, if I should ever get into any kind of a dispute or altercation with anyone who claims to be Muslim, I could conceivably be prosecuted for a hate crime. My vehement anti-religion, and especially anti-Islam, ramblings on facebook, my personal blog, the Freedom From Religion Foundation’s website, and Daylight Atheism could be used against me in a court of law.

What my misogynistic Islamist pals don’t know, and how could they, since I was representing not myself, but Ni Putes Ni Soumises during our little exchange, is that literally nothing can deter me from exercising my right to free speech to advocate on behalf of women’s rights as universal human rights without compromise. I am a loner. I will never marry nor have children, which is a tactical choice. I am responsible for no one. I have no possessions. I have no money. I have no family. I have no community. I have no allegiances to any person or group or organization or corporation. I am as free as can be. I have my freedom, which is the only thing I value. I am beholden to no one and nothing, save my dead brother’s memory and my own conscience. Jacob’s suicide freed, enraged, and empowered me. I also know a thing or two about the law. In other words, you can’t scare me. What are you going to do? Kill me? Put me in prison? We’re all going to die someday. I choose to take advantage of every possible moment, while I’m still here, to leave a glorious legacy for my beloved sibling and myself. And, I choose to use my freedom and my knowledge to fight for secularism, gender equality, and gender desegregation.

Since I hate to mince words, let me just say: Hate crimes legislation is stupid. Seriously stupid. Abominably stupid. I hate hate crimes legislation. But, I love hate speech. Hate crimes legislation has a chilling effect on free speech and freedom of association. This is why hate crimes legislation is in direct contravention of the First Amendment of the US Constitution. Under hate crimes legislation, anyone who has ever said anything, which might be deemed hateful, directed at one of the groups protected under the legislation, opens themselves up to hate crimes prosecution in perpetuity, if they should ever find themselves in a dispute or altercation with someone who claims membership in any of those aforementioned protected groups. I want the haters out in the open, in the disinfecting sunlight of free and open discourse in the public marketplace of ideas. When people feel like their voices aren’t being heard, that’s usually when violence erupts. Thus, the paradox of hate crimes legislation. Hate crimes legislation couches the criminal penalty for hate speech within a crime of violence. But, in my opinion, nothing moves one to violence so much as being denied the right to speak one’s mind.

Hate crimes legislation is thought crime legislation. Hate crimes legislation criminalizes the motive behind a crime. Criminalizing the motive is criminalizing the why. Criminalizing the motive is criminalizing thoughts. A hate crime is an additional penalty, above and beyond the penalty imposed for whatever crime of violence. It is an additional penalty to punish the perpetrator for his/her motive. It is an additional penalty to punish the perpetrator for his/her thoughts, for his/her reason for having acted violently. This is thought crime. Pure and simple.

But, since we don’t live inside a Philip K. Dick story, we can’t read people’s minds, which is why we can only know someone’s thoughts by their speech, or, in some cases, their actions. Which brings us back to my point about the chilling effect that hate crimes legislation has upon free speech. If my speech opens me up to legal liability in perpetuity, then I’m not going to speak. (Well, I am, but my imperviousness is rather anomalous, I would think.)

There are two most commonly cited justifications for implementing hate crimes legislation, and both are egregious errors. First, proponents of hate crimes legislation argue that we already penalize perpetrators of crimes for their thoughts, because mens rea (mental intent) is always an element of any crime. Second, proponents argue that, even if hate crimes legislation is thought crime legislation, this is ok, because it is thought crime legislation, which is only ever prosecuted after the point at which the perpetrator has acted violently against someone.

Mens rea (mental intent) and motive are NOT the same thing. Mental intent is always a required element of whichever crime. We don’t punish people for perpetrating crimes, which they do not intend to perpetrate unless they should have been aware that they were perpetrating crimes. We don’t charge people who have seizures behind the wheel, precipitating fatal car accidents, with murder. But, if they were aware of a dangerous medical condition and failed to take reasonable precautions, then that degree of negligence or recklessness could rise to the level of criminality.

The Model Penal Code defines mens rea as having done something purposely, knowingly, recklessly, or in a grossly negligent fashion. What should already be obvious to even the legal layperson is that none of these criteria for satisfying the mental intent element of a crime addresses the issue of motive. Motive is a wholly separable and severable issue. Motive is equivalent to the reason behind having perpetrated a crime. Motive asks the question, “Why did the accused perpetrate this crime?” Motive does not ask whether or not the accused intended to perpetrate the crime. If I am behaving in a criminally negligent fashion, I still have a motive, presumably, for my behavior. Perhaps I am aware of a dangerous medical condition of mine, which induces seizures. Perhaps I fail to take reasonable precautions. Perhaps, I get behind the wheel, because I am feeling incredibly ill, and I intend to drive myself to the hospital emergency room. I have a seizure and get into a fatal car accident. What was my motive? My motive was to drive myself to the hospital emergency room for medical care. What was my mental intent? Did I intend to have a seizure and get into a car accident, resulting in the deaths of innocent bystanders? Should I have been aware of the possibility of having a seizure and getting into a fatal car accident? Was my degree of negligence gross? Does my motive tell you anything about whether I should have been aware of the possibility of having a seizure and getting into a fatal car accident? What if my motive was to drive myself to the movies?

Motive is never an element of any given crime, EXCEPT in the case of hate crimes legislation. Motive can be admitted as evidence of mental intent, but it is not an element of the crime. If I chose to drive myself to the movies, and I bought a ticket online immediately before getting behind the wheel, this can be admitted as evidence that I behaved in a grossly negligent fashion. But, I am not being penalized for wanting to go to the movies; I am being penalized for failing, in a gross manner, to act as a reasonable person would have done under the circumstances. Likewise, without inventing an even more extravagant scenario, perhaps there were extenuating circumstances, in the case of my having chosen to drive myself to the hospital, which led me to believe that I had no other options than to do so.

Conflating motive and mens rea is a serious error, which places our entire American legal system in jeopardy. Allow me to explain why. I’ll continue with the preceding example, because I find that examples serve best in explaining difficult legal concepts. And, these concepts are difficult for everyone, lawyers included. Let’s say that our legislators, responding to a popular mandate, decide to promulgate stupid crimes legislation, wherein those who perpetrate crimes of criminal negligence for particularly stupid motives, like, say, going to the movies, face additional penalties, and that this legislation is a response to moral majority outrage over the loss of life and the infliction of serious bodily harm while engaging in frivolous activities for frivolous purposes. The public is incensed by the flagrant disregard for public safety and welfare.

Stupid crimes legislation entails the imposition of vastly harsher penalties for particularly stupid motives. But, it only imposes those penalties upon those who actually end up negligently killing someone or inflicting serious bodily harm. The legislation is justified as a response to the increased and senseless harms inflicted upon the general public for especially stupid reasons. If you accidentally kill someone in the course of attempting to save someone’s life, you’re ok. You might still be punished for your criminal negligence, but you won’t face additional penalties. But, if you accidentally kill someone in the course of going to the movies, you receive additional penalties, if convicted. The laws penalize only those motives, which are considered frivolous or stupid. Entertainment activities are generally considered frivolous or stupid.

Makes no sense, does it? It’s going to make you think twice about going to see that brand new movie release or concert, won’t it? Either way, you didn’t intend to either purposely or knowingly kill someone. Your intent is no different. You weren’t aware that you would kill someone, but you should have been aware that you could kill someone, and that negligence on your part was gross. But, now, you’re going to receive additional penalties on the basis of the stupidity of your motive during the course of perpetrating a crime of gross negligence. Because the jury will be morally outraged that you ended someone’s life while doing something as frivolous as going to the movie theater. You’re not actually being criminalized for going to the movies, but for wanting to go the movies.

Does it make a difference that you won’t actually risk these penalties until you’ve killed someone? None whatsoever. You’re still being penalized for the additional crime of wanting to go to the movies, of thinking that you want to go to the movies. Which evokes a myriad equal protection concerns. Someone who wants to go to the movies is being punished differently than someone who wants to save someone’s life. For the same crime. The only difference is motive.

Additionally, hate crimes legislation violates the constitutional rights of the accused. You can almost always bring in evidence of a defendant’s motive to prove mental intent. However, Rule 403 of the Federal Rules of Evidence still applies. Rule 403 of the Federal Rules of Evidence says that if the prejudicial nature of the evidence outweighs its probative value, meaning that if the evidence is going to so inflame a jury so as to call into question the defendant’s right to a fair trial, then the evidence is out, no matter how on point and illuminating it is. But, hate crimes legislation throws the Federal Rules of Evidence out the window, as well as their goal of protecting the constitutional rights of the accused. Hate crimes legislation specifically says that if evidence of motive is so inflammatory that it calls into question the constitutional right of the accused to a fair trial, because it will provoke moral outrage in the jury, then it’s admissible. And, not only is it admissible, but it is an element of the crime, and the accused faces harsher penalties, because of the inflammatory and morally outrageous nature of the evidence. It is no longer about merely proving mental intent. It is about purposely and purposefully enraging the jury. It is about criminalizing morally outrageous thoughts/speech. It is about penalizing the perpetrator for his/her morally outrageous thoughts. Hate crimes legislation tells the jury, “If you are morally outraged, then not only consider this evidence, but convict and punish on the basis of your moral outrage.” If we uphold the Federal Rules of Evidence, then the Federal Rules of Evidence, which prohibits egregiously inflammatory motive evidence, will negate the existent of hate crimes legislation.

Regarding the second justification for hate crimes legislation, let’s return to the Philip K. Dick story, in which we seemingly live. Hate crimes legislation is essentially future crimes legislation. If you speak hateful speech, then you will be penalized both now and in perpetuity, by the imposition of a legal liability, for some future violent crime, which you may commit. You will forever be in a position of legal vulnerability, especially with respect to anyone who claims membership in any group protected by hate crimes legislation. You are no longer fully and equally protected by the law. You are no longer a full citizen of the US.

Finally, hate crimes legislation is the granting of rights and legal personality to social groups, placing individual human rights, especially women’s and children’s rights in jeopardy. Proponents of hate crimes legislation also put forth the argument that hate crimes don’t just affect the individual who has been transgressed, but that these crimes are harms against communities of persons, social groups. But, I’m afraid that someone is going to have to define these protected groups with some degree of certitude, including their boundaries, their membership, their protocols for inclusion/exclusion and acceptance/rejection (coming, staying, and going), their rules, their leadership, etc., etc..

Human beings are real. Social groups aren’t. Not nations, not religions, not ethnicities, not cultures, and not races. Group identity is inherently arbitrary and illusory and fluid. There is no objective definition of a social group. The experience of being a self-identified member of a social group is a wholly personal and subjective experience, which only exists in the mind of one or another group member. It matters not that human beings are social creatures that evolved to live in social groups and make decisions communally. This says nothing about the objective reality of social groups. Each member of a social group experiences the group in an entirely different way than any other member. He/she understands his/her role, value, and status within the group differently. There is no objective leadership, no objective set of rules of conduct, no objective protocol for entering, maintaining, or leaving a social group. And, this is as it should remain. Social group identity should remain an arbitrary, illusory, and fluid entity, entirely the process of self-initiation. In the same way that government should pay no heed to religion whatsoever, neither to advance nor deter, government should pay no heed to social groups whatsoever, neither to advance nor deter.

Why? Why should this be so?

Just think about the consequences of legally defining social groups. By recognizing a social group as an objectively definable entity, and legalizing this so-called objective definition of whichever social group, and granting this legal fiction rights and legal personality, we do nothing so much as violate the personhood, autonomy, integrity (bodily and otherwise), and humanity of whichever social group’s members. Group identity is no longer an ephemeral process of self-identification. It is now a process of government indoctrination. Typically, the government cedes its authority to write this legal fiction for whichever social group to the “leaders” of the group, which almost always means the powerful group members, and usually means men. Legalizing group rights is a license to oppress the less powerful members of a group, rendering individual human rights meaningless.

A recognized group with legal rights and personality is an entity, which will seek to perpetuate itself. The group leaders, powerful male group members most likely, will seek to control the means of reproduction of the group members, i.e. women’s bodies and children. Is it any surprise that group leadership will define women group members, who may or may not have had a choice in residing within or without the group, as the sexual and reproductive property of the group? Is it any surprise that a legalized group will defend its right to police its own members, promulgate and enforce its own laws, and defend itself against attack by other groups? No one suffers more under religio-cultural / legal communitarianism than women and children. No one loses more rights than women when groups are granted rights.

Religio-cultural / legal communitarianism is a threat to our secular democracy. Legal communitarianism renders equal protection, rule of law, individual human rights, and secularism meaningless. If a religio-cultural social group can hold itself apart from our secular law and democratic institutions and make itself immune to our Constitution, then our democracy will not survive. And, our government will not be able to protect the most vulnerable and least powerful group members from egregious human rights abuses. Hermetic groups, which are impervious to government intervention, are human rights abuse laboratories. Power differentials coupled with a lack of transparency inevitably lead to human rights violations. And, women and children suffer most of all in these scenarios.

You might think I extrapolate too far from the purpose and effect of hate crimes legislation, but I don’t. We lose a little more of our secular democracy each day. I want to take some of it back. I want to start with the repeal of hate crimes legislation.

I would extrapolate even further. We are a single, global human family. A single, global human race. We are one tribe. One global community. We are one. Nothing divides us. If we are not able to come to terms with this fact, then we will not survive. It is really that simple.

Promulgating criminal law based upon a subjective sense of moral indignation, be it moral majority outrage or otherwise, always sounds like a good idea until you’re on the receiving end of that moral indignation. In other words, be careful what you wish for.

Additionally, hate crimes legislation raises Due Process and 5th Amendment Double Jeopardy questions. But, this essay is already sufficiently lengthy. Suffice it to say that Due Process questions particularly arise in the instance when the accused is subjected to sentencing enhancements determined by a judge, in lieu of determination of guilt by a jury. Fifth Amendment Double Jeopardy issues are evoked, because the accused is being prosecuted twice over for the same crime.

There are so many ways to think that hate crimes legislation is stupid. Even if you’re not convinced by one argument, it is hard to imagine that anyone can remain immune to the persuasive power of the aggregation of arguments against hate crimes legislation.

And, now we see why it’s always ok to hate women in America. Women having full access to their humanity is a direct threat to the existence of social groups. Both women and groups being able to wield the power of hate crimes legislation at the same time, against one another, renders hate crimes legislation meaningless. They cancel each other out. Like matter and anti-matter.

And, so, we wait for someone to be prosecuted for a gender-based hate crime.

And, we wait. And wait.

Excuse me if I don’t hold my breath.

About Adam Lee

Adam Lee is an atheist writer and speaker living in New York City. His new novel, Broken Ring, is available in paperback and e-book. Read his full bio, or follow him on Twitter.

  • Freak

    My understanding of hate crime laws is that they are similar to felony murder; they do not make anything illegal; instead, they make already illegal actions worse.

    So, spray painting “______ go away” on the wall of somebody’s house is vandalism, and thus can be prosecuted as a hate crime.

    Assaulting is a crime; if the prosecutors can prove it was racially motivated, it becomes a hate crime.

    But if all you’ve done is speak, which is legal, I fail to see how you’ve committed any hate crime.

  • http://raisinghellions.wordpress.com/ Lou Doench

    I like your the case you have made. I don’t completely agree with you, but you make a good case.

    I recommend the works of David neuwirth and sarah douglas at Orcinus for an opposing viewpoint.
    http://dneiwert.blogspot.com/

  • Demonhype

    I couldn’t agree more. I understand the rage one can feel when hearing, say, some bigot saying something horrible, I understand the desire to punish the person who has upset you with those evil views, by fist or by legislation, but to give in to such base reactions and decide that the best way to deal with it is to criminalize it is not only lazy but short-sighted and dangerous and hurts all of society in the long run. As far as I am concerned, there is no valid opposing viewpoint, just a lot of emotionalist noise about hurt feelings and, as you pointed out so well above, a lot of deliberate twisting of existing evidence standards to pretend that thought-crime legislation is no different than considering the accused’s knowledge or mental state. It’s not, and if you believe it is you are desperately reaching for anything you can to validate your efforts to silence the thoughts of other people because subconsciously you know that there is no excuse for it. And it will come to bite you in the ass, I guarantee it.

    Outlawing unpopular views has never worked at any point in the history of the world, and it is only employed by short-sighted control freaks, be they deliberate tyrants trying to force their bad ideas on others or just lazy, well-meaning people who want to believe that if you forcibly shut another person’s mouth, their ideas magically go away. The only way to fight bad or evil ideas is to actually fight them–to show them for the lies they are. This can only be done if those ideas are visible and it takes actual effort, which some are loathe to do. Kind of like how raising kids right for long term results is a lot of hard work, but some lazy parents resort to corporal punishment because, in the short term, it’s a quick and easy way to shut the kids up and get your way for the moment. Or how losing weight takes a commitment of diet and exercise, but most people will just seek out some magic food or pill that will poof the fat away because they can’t be bothered to put in the effort–and the magic pill seems to work at first, but in the long run it damages your system, and because someone saw your short-term gain they race to obtain the pill and ruin their own system, and so on and so forth. In the short-term, it may seem like you’ve won, but in the long term everyone is damaged.

    There are no magic bullets, but that doesn’t prevent power-hungry charlatans from selling them.

    That’s also an excellent point about how silencing another person’s views, be it directly or indirectly through hate crime legislation (wherein everyone who is not a part of a protected group now has to constantly worry that something they say might be used against them in the future to ruin their lives and deny them equal protection under the law and the First Amendment) is actually a good way to cause violence. When some bigot wants to call himself persecuted, you can point out that he is simply being disagreed with and that no one has tried to arrest him and no one will, deflating his claims of persecution. He can continue saying that, but some part of him has to admit it’s bullshit, and that affects lurkers too. But if his words can get him arrested, or add to his sentence should he do anything in the future, he’ll actually have a point since his rights aren’t being respected under the law (and I can easily see someone get in a car accident and get an increased sentence because a Muslim was hurt and there is evidence that this person “hated” on Muslims in the past–remember, we’re no longer doing this on a basis of logic, reason and evidence but on the basis of emotion and moral indignation, which is the exact opposite).

    And having to be constantly worried that exercising your right to free speech is likely to get you put in prison, it’s going to do shit to your head. I know a little about that in the witch-hunt that is workplace drug testing. I can’t even simply ask a simple question to a prospective employer about whether their drug testing policy is with or without cause without being branded a drug-user and guaranteeing they will test me–a prime example of a witch-hunt, wherein any questioning of the hunter’s methods marks you as a witch yourself, because the idea that someone could have a legitimate criticism is just impossible. The only response they want is a obedient smile and immediate compliance. Just finding work is hard in this economy, finding work that doesn’t violate your physical privacy rights is even harder, and the witch-hunt “you will not question this” makes it almost impossible. I have finally found something after four years, one year spent in seasonal positions, but you really do get to a point where you are considering violence against yourself and others–and I am a very peaceful liberal egalitarian type who opposes war and the death penalty, and I wasn’t even facing arrest! I can imagine how much more unhinged a genuine hater would become, having their free speech rights threatened by a prison sentence or an expanded special prison sentence! You’re not going to prevent prejudice-based violence by these laws, you’re just going to exacerbate the problem while eroding the foundational rights of this country. The ideas of haters don’t go away just because you’ve forcibly shut their mouths, and by silencing them you guarantee that those ideas are going to fester and putrify in an isolated underground, rather than being diluted if not dissipated by the fresh air of open discourse in a free society, wherein anyone can freely express or challenge ideas without fear of reprisal. And I’m sorry, but hate crime legislation is reprisal, no matter how you try to veil it up or reroute the signal.

    You’re not helping.

  • Niklaus Pfirsig

    I describe myself as an agnostic leaning atheist. I’ve never really understood religion, and this have given me a point of view that helps me to be relatively un biased in religious and cultural issues.

    Just letting you know where I’m coming from on this.

    I have found over the years that the best way to bring about change is not to force it on people, but to lead them through education and example to teach other’s viewpoints. The requires that I understand their cultural interpretations.

    Your outrage at the way some women were dressed seems to pivot on your assumption that they are not dessing that way by choice. It is quite possible that they chose to dress that way.

    People who grow up in a culture, tend to become imprinted with the morality of that culture. Over the years, I have known many Muslims, some from fundamentalist as well as others from secular backgrounds. Many Muslim women, who grew up in fundamentalist cultures, when given the choice, will often choose to wear the hijab and niqab because, to them, to expose more of their bodies in pubic is embarrasing and immodest.

    From an American viewpoint, fundamentalist Moslem culture has a very low opinion of men. Men in these cultures are expected to be driven by their basic biological needs, like a bunch of horny dogs chasing a gyp in heat, and men are also expected to protect “their ” women from other men. The more enlightened and secular muslims set much higher standards of self control on the men.

    Back in the late 70′s the popular style for women in Baghdad was tight bluejeans and turtle neck sweaters. I know this because I dated an Iraqi girl in college, and yes she was muslim, and yes she knew I was a non believer. Despite the tendency of news coverage to only show fundamentalist Iraqi women, it seems that jeans and sweaters are still popular over there.

    This being said, however, hate speech is wrong, but trying to outlaw hate is silly. Expecting people to think a certain way because wrong-thinking is illegal cannot be enforced nor should it be. Freedon of speech makes a venue for public discourse that can change people’s attitudes about why they fear and hate. And that is more important.

  • Jim Baerg

    “Just think about the consequences of legally defining social groups.”

    See the Millet system

  • Roi des Faux

    1) Don’t conflate hate crime legistation and hate speech legislation. Hate crime legislation increases the penalties for things that were already crimes. Hate speech laws makes it illegal to say things that were previously legal to say.

    2) “Motive is never an element of any given crime, EXCEPT in the case of hate crimes legislation.” If you plan to kill someone and then do so, it’s first-degree murder. If you intentionally kill someone in the heat of the moment, it’s second-degree murder. If you kill someone accidentally, it’s manslaughter. The same act (killing someone) is treated differently depending on your motivation.

    3) The motivation in question for hate crime legislation is why you chose your target. If you kill someone who is a Jew because you hate that person, it’s not a hate crime. If you kill someone who is a Jew because you hate Jews, it’s a hate crime. In the former case, your goal is to attack a person. In the latter case, your goal is to attack a group of people, by means of attacking this one person.

    I am dead-set against hate speech laws, and ambivalent about hate crime legistlation.

  • Leum

    Finally, hate crimes legislation is the granting of rights and legal personality to social groups, placing individual human rights, especially women’s and children’s rights in jeopardy.

    Sarah, you’ve made this claim repeatedly, and when I asked you for some evidence you pointed me to to a website where I was unable to find any articles written by you. Could you please explain why you believe hate crimes place individual rights in jeopardy?

  • David Hart

    Roi des Faux, I think you make exactly the mistake Sarah was talking about, confusing mens rea with motive.

    Let’s say you are of the sexually jealous persuasion, and you discover your partner is sleeping with someone else. Say you discover proof, obsess about it and eventually decide to murder the lover with poison. That’ll be first degree murder. On the other hand, if you actually discover them in bed together and whip out a knife there and then even though you would never premeditatedly do such a thing, that’s second degree murder. Different mens rea, same motive.

    You could even, conceivably, work in a factory with a colleague who is sleeping with your partner, resent them bitterly enough to wish them dead, but simply not have the guts to actually kill them. Then, let’s say, you happen to let slip your full attention while they are near a dangerous machine and thus cause them a fatal accident, quite without intending to, yet feel a slightly guilty sense of satisfaction that of all the people that could have walked past the machine at the crucial moment, it happened to be them (I freely concede that this third scenario is unlikely, but it’s not inconceivable)

    The same act is treated differently depending not on your reason for wanting them dead but according to your intentions at and leading up to the time of committing the act.

  • AnonaMiss

    Reading this felt like reading Plato, in that I found myself objecting to the very first postulates, and so was unable to stay in touch with the rest of the argument. We appear to have such opposed viewpoints on the purpose of the justice system that I wasn’t getting anything out of it.

    If legal penalties exist to punish wrongdoing, then you’re absolutely correct – the motive of any crime should have absolutely no effect on its punishment. All that matters is the crime in itself.

    But if, as I see it, legal penalties exist to prevent future harm, then hate crimes legislation is justified.

    Take the case of a murder. Locking up the murderer doesn’t really fix anything – it’s not going to bring the victim back to life. Punishment for the sake of punishment never helps anyone. In my view, imprisonment in this case exists for the dual purposes of a) dissuading those who do not murder, but might consider it if there was no penalty; and b) preventing the murderer from killing again by keeping him in custody (or killing him). The murderer has demonstrated a willingness to kill when certain conditions are met, and the idea as I see it is to hold him in an environment where he cannot kill until he has changed enough, through rehabilitation or the natural course of aging, that he would no longer be willing to kill.

    When you look at it this way, the rationale behind increased punishment for hate crimes is clear. The murderer targeted an individual because he was a member of a group, so all members of that group are in danger from him. Contrast this with a murderer who killed someone on personal grounds: he targeted his victim because of who the victim was as a person. There are no victims next in line, fulfilling the exact same sufficient conditions for murder. The hate crime murderer already has a slate of future victims pre-made – he doesn’t even have to know them personally! – therefore he is a greater risk, and therefore extra care should be taken before releasing him back to society.

    I think the US has done only a halfway decent job of implementing responsible hate crime laws, by restricting it only to certain groups. In my opinion, any crime which targets a person because of a class they belong to – religious, racial, gender, sexuality-related, economic, subcultural – should be classified and prosecuted as a hate crime.

    I suspect you’ll have a strong rebuttal to this point of view, as you always do, so I’ll warn you ahead of time that I don’t strongly care about this topic and probably won’t be back to check these comments again. Feel free to respond, of course, but please don’t be offended if I don’t reply to your response. :D

  • http://avoiceinthewilderness-mcc1789.blogspot.com/ Michael

    Thought-provoking (and provocative) as ever Sarah.

    Here was a woman (or, at least, I assume she was a woman), in the heart of what is arguably the most politically liberal university campus and city in the US, a fount for civil rights and 60′s hippie culture, engaging in a brazen act of gender segregation and slavery in the egalitarian public space of a secular, liberal, constitutional, democratic republic. I think it is a great shame for a woman living in a secular democracy to perpetuate a barbaric, patriarchal religio-cultural tradition when women are fighting and dying across the globe to be free from gender segregation and slavery.

    Their view of the niqab is very different, as you no doubt know. If women are forced to wear this, I assume that is already illegal. How about those who voluntarily segregate and enslave themselves in your view, for what they feel to be privacy, modesty and religious duty?

    My views on public anti-mask laws (burqa bans, colloquially) as both public safety and gender desegregation measures are well known. We can no more tolerate gender segregation in the public space than we can tolerate racial segregation in the public space, above and beyond the simple fact that we can neither protect nor prosecute those whom we cannot identify, creating an untenable public safety and security hazard.

    As I recall, the number of women wearing the niqab in France was less than 500. Was a law necessary with such a miniscule number? And what exactly is the public space? Why is an outright ban necessary if banks, for instance, can say they require faces to be uncovered due to a security risk? Is an outright ban preferable to private discrimination? Many if not most of the women that wear the niqab will not go out at all if you ban them from the public space. Is that an improvement?

    I completely agree with you hate speech/hate crimes legislation. I must disagree with the contention that no one cares about the crimes against women though. You and many other people clearly do care. I would be very surprised if no hate crime laws cover crimes against women, as well. There is voluminous legislation both at state and federal level-do none of them included women as a protected category? This seems highly doubtful, as does the claim that no gender-based hate crimes have ever been prosecuted.

    @Comment#9:

    Reading this felt like reading Plato, in that I found myself objecting to the very first postulates, and so was unable to stay in touch with the rest of the argument. We appear to have such opposed viewpoints on the purpose of the justice system that I wasn’t getting anything out of it.
    If legal penalties exist to punish wrongdoing, then you’re absolutely correct – the motive of any crime should have absolutely no effect on its punishment. All that matters is the crime in itself.
    But if, as I see it, legal penalties exist to prevent future harm, then hate crimes legislation is justified.
    Take the case of a murder. Locking up the murderer doesn’t really fix anything – it’s not going to bring the victim back to life. Punishment for the sake of punishment never helps anyone. In my view, imprisonment in this case exists for the dual purposes of a) dissuading those who do not murder, but might consider it if there was no penalty; and b) preventing the murderer from killing again by keeping him in custody (or killing him). The murderer has demonstrated a willingness to kill when certain conditions are met, and the idea as I see it is to hold him in an environment where he cannot kill until he has changed enough, through rehabilitation or the natural course of aging, that he would no longer be willing to kill.

    So we are punishing people not for what they did, but to deter others, and for what they might do in the future? To bring up a Philip K. Dick novel as Sarah mentioned, this logic could justify the system in The Minority Report. We catch murderers before they kill, punish them for what they were going to do (but have not done yet) and presumably it deters others. Thought crime. So why punish the individual solely? If deterrence were the goal, why not have collective punishment? Along with the individual, punish their family or community as well. The reason for a murderer being punished with death or life imprisonment is because they have taken someone’s life, violated their right to it. One individual wronged another. This holds in other crimes where the victim is still alive. If there were a machine that could transfer the murderer’s life to restore their victim, would that satisfy your objection that equivalent punishment does not satisfy justice because it does not bring back the dead?

  • http://daylightatheism.org J. James

    I would like to hear from you, Sarah, as to why you think that hate speech legislation is unacceptable but banning burkas isn’t. That gives Moslems that actually WANT to wear the moral high ground. That victimizes THEM. I’m sorry, but banning just TERRIFIES me. As right as you are that men are perfectly equal to women, you shouldn’t be able to FORCE that opinion on anyone.

    It isn’t your fight I’m criticizing, it’s the method. The fight is just but the tools you’re using to enforce your opinion are oppressive. Are you able to justify this?

  • Roi des Faux

    Roi des Faux, I think you make exactly the mistake Sarah was talking about, confusing mens rea with motive.

    Hmm. Somehow I missed that paragraph. I stand corrected on that point.

  • Dark Jaguar

    I’ve been slowly progressing (feel free to add quotes if you like) in my thinking on topics ever since my journey into rational thinking.

    On the topic of “hate crimes”, I really didn’t realize the full extent of what they were as a kid, then when I found out, I was against them for similar reasons. I’m shifting the other way, leaning that is. Here’s the argument I’ve heard in favor of hate crime laws. I’m putting on a hat here, which seems compelling to me but which I’m not yet married to.

    Minorities are already at a disadvantage in society, and the law needs to take extra care to balance their disadvantaged state. As minorities are much more likely than majorities to be the victims of violence, an extra ordinary measure needs to be taken to dissuade potential attackers from this, over and above the normal punishment for assault. To this end, if someone is going to simply get a slap on the wrist for a simple case of assault but it can be determined this person was motivated by race or gender or some other bigotry, it is just to ask they pay more.

    As to how this matches with hateful speech, there’s the matter of expression to deal with. “Hate speech” in and of itself I think should never be outlawed, because “speech” in and of itself should not be outlawed. However, let’s say your hate speech is a violent threat, or libelous. Since libel and threats are already illegal, those too would be illegal. The big question is not whether such things should be punished, but if they should be punished MORE for being bigoted. I’m leaning towards saying they probably should, for the “balancing an inequality” reason above, but I’m willing to be dissuaded from that.

    Back to the burka, I’ve read and talked about your issue with that, but find this particular issue to be at odds with it. Clothing, to me at least, counts as speech and as self-hating a symbol as one is (even if the wearer may not be aware of it), it should still be protected speech. The “if you can’t identify your attacker” argument doesn’t fly with me, because not only attackers would have reason to disguise themselves in public. In the current rebellions against governments in Syria and Libya right now, being able to disguise themselves has been very important to protect them FROM being targeted and arrested/attacked/killed (and the classic superhero defense applies in real life, to protect one’s loved ones). I think being able to disguise one’s identity is an important part of being able to freely protest, both online and offline. The exception is obvious, private property and government offices. Wear a Nixon mask all you want in the Washington Mall, but once you enter the White House, you must remove it. That seems like a perfectly fair compromise. The burka however is not about disguising a potential attacker or protecting someone from retribution, so I don’t think it really applies. I hate to bring it up, but I’ll say it. Costumes would forever be outlawed under this idea. Not that I’m saying “fun” is more important than the public welfare, but really, I’m not convinced that outlawing masks is going to make people safer, and in fact there’s a good argument that it’ll endanger a lot of people in the right climate. Just as one example, a few years ago numerous people staged a protest outside of a Scientology building, all wearing Guy Faux masks. The reason was clear, Scientologists have a propensity to sue anyone and everyone. Clearly a peaceful protest is protected speech, but many of the protesters would have otherwise been silenced simply due to the legal costs of defending themselves.

    I’ll make this point again. I consider there to be a marked difference between someone wearing a symbol like the burka of their own free will and someone who is being forced to wear one. The latter DOES need laws and more importantly a system of protection in place for such victims. However the former are just expressing themselves, even if it is a detestable form of expression like wearing a KKK hood (but with the target of the hatred inverted). Actually, the former can wear such a symbol as a form of protest too, as some have done in Europe. This person may have been doing just that on that campus. It’s hard to say, and hard to read minds as you say.

    I’m also going to have to ask what you mean by this: “Ni Putes Ni Soumises is not anti-religion or anti-Islam, just anti-religionism and anti-Islamism.” I’m having trouble parsing that as anything other than semantics, the distinction totally lost on me.

  • http://avoiceinthewilderness-mcc1789.blogspot.com/ Michael

    @Comment#9:

    Just found this and it seems relative in countering the deterrence theory. http://news.yahoo.com/california-fugitive-arrested-36-years-fbi-002956875.html
    Under this precept, should not this man go free? So far as can be seen in the article, he committed no other crimes, was a law-abiding citizen, has raised a family, etc. If criminal justice is about preventing future crime (none known) and deterrence (hardly applicable to a man that managed to stay loose for 36 years-it could easily have lasted forever) does this logic not hold?

  • keddaw

    Banning head coverings effectively bans anonymous protest of government which leads to much greater harm than the subjugation of a small group of women by a small subset of men. When we empower the state to protect the rights of a minority by decreasing the freedom of the majority we have to be very aware of what we are doing and be sure that it will work – which, in this instance, it won’t. It also appears to be a permanent solution to a very temporary problem which will inevitably have severe and unintended consequences in the future.

    Now that’s out the way, I wish to applaud you for a well-reasoned argument against hate crime legislation. All hate crime laws take an existing problem and make it into a new crime based on the victim. We only do this for the most vulnerable members of society and to do it for people based on their social group or skin colour is patronising at best. Hate speech legislation on the other hand, criminalises genuine criticism. If speech rises to the level of incitement to commit violence then we already have legislation for that, more is not required.

    One final issue with the article, people are, and should be, free to give up their rights to a larger social organisation, but that should be voluntary and for only as long as they wish it to be for. And you are right that those social groups should not be being decreed by government as the dangers there should be obvious to all.

  • Syn

    “Just think about the consequences of legally defining social groups. By recognizing a social group as an objectively definable entity, and legalizing this so-called objective definition of whichever social group, and granting this legal fiction rights and legal personality, we do nothing so much as violate the personhood, autonomy, integrity (bodily and otherwise), and humanity of whichever social group’s members. Group identity is no longer an ephemeral process of self-identification. It is now a process of government indoctrination.”

    This is exactly why I think it is silly to outlaw a particular form of dress. Your main objection to niqab is that it is a statement of membership in a social group. The argument you make against the “hate crime” category applies just as much to legal categorization of forms of dress. I think the French law against girls wearing headscarves is absolutely discriminatory. I’ll bet nuns in France are still allowed to wear habits.

    We have to assume that the person wearing a particular garment is the one who chose to wear it. If she is being forced to wear it, then she should leave the situation in which she is being forced to do things she doesn’t want to do. Detaining her against her will is a crime under the laws of the United States. Physically assaulting her is a crime. What we need, exactly as you have argued, is for the laws to be enforced regardless of the membership of the perpetatrators in some social group that finds breaking these laws acceptable.

    I think that criminalizing the way some women dress is far less productive than engaging with them would be. The first step to letting someone know that you think she is an individual with all of the rights conferred on individuals in the United States would be to talk to her, not necessarily about anything earth shaking, but just about anything.

    This doesn’t really deal with the safety issues involved in niqab, but that didn’t seem to be your main argument for outlawing it.

  • James

    Hate crimes laws don’t exist so that you can get slapped with a harsher penalty for accidentally hitting someone in your car on the way to the movies. Making that comparison is completely ridiculous and makes a joke out of a very serious matter.

    The proponents’ justifications you cite are also ridiculous and off the mark. They boil down to “we already penalize thoughts” and “it only applies after you commit a crime”.

    “We already penalize thoughts” is an outright admission that the basis of hate crimes laws is already covered by existing law. Who would justify a new law by saying it’s redundant and by extension unnecessary?

    “It only applies after you commit a crime” is not a justification so much as a silly excuse you just made up. Using that to justify hate crimes laws would be like saying that it’s okay to torture and execute jaywalkers because you only do it after someone has jaywalked. That doesn’t justify such an excessive punishment at all and nobody would claim that it does.

    Hate crimes laws don’t exist just to “stick it” to racists and bigots during sentencing. They don’t exist to punish angry thoughts and opinions. Their entire purpose, which you completely ignored, is to provide extra protection for people who from the start are far more likely than the average person to be attacked strictly because of some part of their identity. If the average black person, gay person, Muslim person, whatever person, is five times more likely to be attacked during his daily life than the average person, then an effective way to protect that person against that extra danger is with the deterrent of hate crimes laws.

    It is incredibly narrow-minded to compare having a seizure while driving to the movies to lynchings and cross burnings and gay bashings and church bombings that have socially degrading, demoralizing, terrorizing ripple effects on entire communities of people who are victimized simply for their shared identity. Hate is something we’re all free to have… but acting out on it to bully an entire community is a totally different matter than a personal crime.

    Perhaps if a popular fad of hate-based violence specifically aimed at young women takes the country by storm and you start wondering if every stranger on the street might be out to hurt you just because you’re a young woman, you might see the issue in a different light.

  • Charles Black

    Good argument Sarah but I think you should mention that without blasphemy you can’t have freedom of speech.
    Remember that religious people are bullies & when you stand up to them by blaspheming their religion they run away as the cowards they are.

  • sng

    So do you feel the same thing about the dress of Amish or Mennonite people?

    Orthodox Jews?

    Mormons?

    Sikhs?

    If not what’s different about hijab?

  • Jim Baerg

    I’m not sure about Sarah’s answer. But in many cultures ‘traditionally female’ clothing seems designed to impede motion more than the traditionally male clothing & so is both an instrument & symbol of female oppresion. The muslims just seem to take this farther than other cultures.

  • Sarah Jane Braasch-Joy

    Hi guys,

    Thank you so much for all of your comments.

    I started grad school this week, so I’m a bit crazy at the moment. I am TAing for a Philosophy of Law class, which is sort of perfect.

    I intended this piece as my more or less definitive statement on the stupidity of hate crimes legislation.

    I don’t really know how to make myself any more clear.

    If you simply disagree with me, rest assured that you are not alone. Thus, the existence of hate crimes legislation despite my vociferous protestations.

    If you don’t care, then I’m not sure why you would think that I would care to reply. I have to say that I do find it amusing that someone would assert their indifference within a comment, which belies such an assertion.

    I’ll save burqa / niqab comments for another day. The point of the example I mentioned was to show the dangers of hate crimes legislation.

    I’ll just say that anyone who thinks that public anti-mask laws are illegitimate as violative of free speech and religious exercise and not the wholly secular public safety and desegregation measures, which they are, are going to be hard pressed to justify the 1964 Civil Rights Act.

    Also, when the government allows religious group law to trump secular law, when the government is afraid or unwilling to promulgate necessary secular law for the public welfare, when the government refuses to protect the rights of its individual citizens, because of religious group pressure, this is an egregious Establishment Clause violation.

    Leum, you are confused. I never directed you to another website. I was directing you to preceding comments in that same prior thread. Also, you keep asking me a question, which I have answered innumerable times. You are obviously not satisfied with my answer. Sorry. I’m not sure what else to say to you. I guess, just read the news. Every day, and more and more, unfortunately, there are horrific examples of individual rights being trampled by group rights, especially women’s and children’s rights. I would count the reluctance inside the US to address the problem of masked persons in the public space as one of those examples.

    James, that future in which egregious hate violence is directed at women is already here. And, when was the last time you heard of a rape being prosecuted as a hate crime? Hate crimes legislation penalizes a perpetrator of violence for hating an alleged social group. There’s really no getting around that.

    Oh, and religionism as opposed to religion. A Christian is someone who practices the religion of Christianity and applies it to their own life. A Christianist, a type of religionist, is someone who wishes to impose Christian religious law upon others, especially via the state.

    I think I addressed everything. If you feel like you really have a question, which I’ve failed to address in either the original piece or this comment, feel free to let me know.

    But, thank you so much for all of the comments.

    I’m just really happy to have this piece up, so that I have somewhere to which to refer people, the next time we get in a heated debate about hate crimes legislation and the difference between mens rea and motive.

  • http://www.daylightatheism.org Ebonmuse

    Sarah, you’ve made this claim repeatedly, and when I asked you for some evidence you pointed me to to a website where I was unable to find any articles written by you. Could you please explain why you believe hate crimes place individual rights in jeopardy?

    I think she did a fairly good job of explaining it in this piece, Leum. Look at this section:

    Just think about the consequences of legally defining social groups. By recognizing a social group as an objectively definable entity, and legalizing this so-called objective definition of whichever social group, and granting this legal fiction rights and legal personality, we do nothing so much as violate the personhood, autonomy, integrity (bodily and otherwise), and humanity of whichever social group’s members. Group identity is no longer an ephemeral process of self-identification. It is now a process of government indoctrination. Typically, the government cedes its authority to write this legal fiction for whichever social group to the “leaders” of the group, which almost always means the powerful group members, and usually means men. Legalizing group rights is a license to oppress the less powerful members of a group, rendering individual human rights meaningless.

    I wouldn’t presume to speak for Sarah, but I think the danger she sees is that, for the government to enforce these laws, it has to take it upon itself to draw group boundaries (i.e., to decide whether to prosecute someone for a bias crime against Jews, they have to decide what does or doesn’t constitute Jewishness), and may well end up defining someone as a member of a group against their will. And doing this strengthens the hand of religious zealots who claim that their own group should be governed by special laws – sharia, halakha, or whatever else – even if individual members of that group don’t want to be bound by those laws. I have to admit that I find this a plausible fear.

    When you look at it this way, the rationale behind increased punishment for hate crimes is clear. The murderer targeted an individual because he was a member of a group, so all members of that group are in danger from him. Contrast this with a murderer who killed someone on personal grounds: he targeted his victim because of who the victim was as a person. There are no victims next in line, fulfilling the exact same sufficient conditions for murder. The hate crime murderer already has a slate of future victims pre-made – he doesn’t even have to know them personally! – therefore he is a greater risk, and therefore extra care should be taken before releasing him back to society.

    I’m not sure I would agree with that, AnonaMiss. After all, a person who murders another human being has shown that he can be provoked to commit murder – whether it’s because he has a violent and hair-trigger temper, because he’s a psychopath, because he thinks that killing someone is an appropriate response to them displeasing him, or for whatever other cause. No matter his motive, he violates the presumption of peaceful behavior that society expects of all its members, and it’s reasonable to assume that he poses a greater risk than an average citizen. I don’t see any reason why this would be more true of those who commit bias crimes than it is for other kinds of crimes. (That said, if anyone has evidence which shows that bias crimes have an unusually high risk of recidivism, that would be worth taking into account.)

    Minorities are already at a disadvantage in society, and the law needs to take extra care to balance their disadvantaged state.

    I grant that point, Dark Jaguar. But now look at it in another light: what this means is that certain groups get special rights, or special protections, over and above the rights and protections that the law already affords to everyone as individuals. That was Sarah’s insight, and when it’s put that way, I have to admit that it grates against my sense of equality. If the penalty for assault isn’t sufficiently harsh to deter people from committing assault, then we should consider increasing the penalty. But I see no reason to grant that protection exclusively to members of certain racial, ethnic, religious or other groups. Why not grant it to everyone equally?

    Perhaps if a popular fad of hate-based violence specifically aimed at young women takes the country by storm and you start wondering if every stranger on the street might be out to hurt you just because you’re a young woman, you might see the issue in a different light.

    James: first of all, please be civil. This comment is very close to wishing harm upon someone, which I don’t permit here.

    Second: I think Sarah might say – and I would certainly say – that the scenario you describe has already happened. It’s exactly the state of affairs in many countries in the world, where an unaccompanied woman can expect to be the target of near-constant harassment and sexual violence, even rape. Plenty of people who work in these conditions to fight this constant atmosphere of inequality and oppression do not support hate-crimes laws.

    It is incredibly narrow-minded to compare having a seizure while driving to the movies to lynchings and cross burnings and gay bashings and church bombings that have socially degrading, demoralizing, terrorizing ripple effects on entire communities of people who are victimized simply for their shared identity.

    No, it’s not. I wish you were right, but the evidence shows that hate-crimes laws are already seeing “mission creep” which widens their scope beyond any plausible reading of the original intentions. Take a look at this story about a trend of charging people with hate crimes because they allegedly stole from or defrauded an elderly person:

    The legal thinking behind the novel method is that New York’s hate crimes statute does not require prosecutors to prove defendants “hate” the group the victim belongs to, merely that they commit the crime because of some belief, correct or not, they hold about the group.

    Now, stealing from the elderly is certainly a despicable act, but is it a “hate crime”? I think you’d have to agree that this makes no sense under the original intention of the statute (and the prosecutors admit as such, that these crimes weren’t about “hate” per se, merely “a belief” that the elderly are easier to rob). Laws like this always start out with noble goals, but their application tends to gradually and inevitably widen over time. This is exactly the kind of drift that Sarah’s essay is concerned about, and I think she’s absolutely right in her argument for why we should be worried by that.

  • Sarah Jane Braasch-Joy

    Oh, I just wanted to make clear:

    Gender based hate crimes have been added to the federal hate crimes act.

    And, I don’t know of a single hate crime which has been prosecuted based upon the identity of the victim as a woman.

    But, I have not done an exhaustive search.

    I would love for someone to prove me wrong.

    Find one.

    Or, if you know of one under a state hate crimes statute, not all of which include sex based hate crimes, let me know about that as well.

    I am not referring to sexual orientation / transgender based hate crimes, but hate crimes perpetrated against women, because they are women.

    I dare someone to find me one of those, which has actually been prosecuted, even if no conviction was secured.

  • Sarah Jane Braasch-Joy

    Ebonmuse,

    Fabulous response.

    I think I’m just going to let you speak on my behalf from now on.

  • Le Grolandais

    Michael >
    About french ban law of burqa, which is practically useless.
    The main interest of this law is to drag votes from the Front National party (extrem right) to the main right party (UMP), the party of the french president Nicolas “Connard” Sarkozy.
    Sarkozy doesn’t want to appear as a fascist, because he would lose a big part of the traditional french right voters, but in the same time, he try to seduce extrem right voters for the next year presidential election.
    Thus this law and so many others …

  • Sarah Jane Braasch-Joy

    The exploitation of divisive identity politics by some political parties is not reason enough to sacrifice the humanity and citizenship of women. This is obscurantist smoke and mirrors.

    Women are not political bargaining chips. They are human beings.

    I will not compromise on the full humanity of women, not for anyone, not for any political party, and not for any side or group.

    A law, which codifies a desegregated, egalitarian public space in a secular, liberal, constitutional, democratic republic is anything but useless.

  • Korey Peters

    Thanks for making me think, Sarah.

  • Dark Jaguar

    Hearing arguments against hate crime legislation, I’m tipping back to the other side now. What I’m hearing is that while an imbalance of power is certainly a problem with some being more likely to be targeted than others, this particular solution is flawed and other means need to be used to bring balance to the situation. The specifics mentioned above clarify that. I can see the strength of those arguments.

    Back to the burqa, as ever, I am still unconvinced. The comparison to the civil rights movement comes up again. I recall reading this before, but it still seems unconvincing because I don’t see the connection. Well, that’s not completely true. I do see the burqa as a form of forced segregation, when the burqa is forced on someone, either through someone’s culture or through threat. I am entirely for laws to deal with this. I feel that an outright ban is the wrong way to go about it. I’ll be addressing the specific claim that this is about desegregation, not the safety argument, as I’ve already said my piece on that.

    Let me put it this way. Who is punished for the crime of wearing a burqa? Unless I miss my guess, it’s the person wearing it. This seems to be a travesty of justice to me. Compare this to something like a black person forced to ride at the back of the bus. A civil rights law might, for example, outlaw forcing someone to sit at the back of the bus because of the color of their skin. Another way to write the law would be to outlaw the act of sitting at the back of the bus if you are a minority. In one, the person forcing the inequality is being punished, and in the other, the person deciding freely to sit somewhere, admittedly too easily fitting into their unequal role, has been punished. The latter seems like a clear injustice to me, and the burqa ban seems like an identical sort of “inverted” justice.

    If your goal is to remove the threat of segregating women from men in society, the target should be those who force the burqa on women, not those women who are forced to wear it. Remember, a woman in my hypothetical world who is freely choosing to wear it as some sort of ironic statement is hardly what the law is about. It’s the women who feel they don’t have a choice that such a law is meant to protect, and yet it’s those same women who are punished by the law.

  • Sarah Jane Braasch-Joy

    I’ll write something that specifically addresses the connection to the Civil Rights Act.

    I don’t think I’ve fully fleshed that out in an essay before, only in comments.

    And, it is also something that comes up again and again.

    But, and I know that I got sucked in, but I would really like this thread to stay focused on hate crimes legislation, and not get derailed by the burqa/niqab issue.

    But, rest assured, that I am certain to write on the topic again in the near future.

  • keddaw

    I’d actually happily derail it by the CRA discussion…

    There are many problems with hate crimes legislation, most of which have been adequately covered, but the one that gets traction even from people who support them is that they solve a temporary societal issue with a permanent (laws rarely get repealed) legal solution that exists after the problem has been removed leaving us with a law that can be used in all sorts of unintended ways.

    Let me give you an example of why hate crimes legislation is wrong, and why Americans should be wary of them: <a href="http://www.bbc.co.uk/news/uk-scotland-edinburgh-east-fife-14638515">A student at St Andrews University has been found guilty of a racist breach of the peace after he insulted the flag of Israel.</a>

    Not to get too bogged down on the Israel issue, but it claims to be a country where Palestinians can also be citizens so I find it hard to see how an act of political free speech can be racist. But this is the nonsense you get when you allow hate crimes on the books – an act of, at worst, minor vandalism has been escalated to the point where jail is a possibility and the student has been expelled from school.

  • penn

    I read this yesterday and disagreed with a lot of it, but couldn’t quite get my thoughts straight. This morning I realized that my problem is that the crux of your argument is that you feel pressure to tone down your criticisms of Islam and Muslims because if you commit felony assault (or worse) against a Muslim, then you may receive a harsher sentence than if you committed a violent felony against someone else. Sure, you use euphemisms like “altercation” to hide the true meaning, but what would really trigger those harsher penalties would require a violent attack on your part.

    You also forget the real purpose of such legislation was to bring in federal resources to help in areas where minorities were being terrorized and the local authorities just ignored it. It is logical that if someone commits a crime with the intent of terrorizing a community that they should receive a harsher sentence because it is clearly a worse crime against society.

  • Jim Baerg

    Keddaw: “(laws rarely get repealed)”

    That is a problem.
    I’ve always liked the suggestion Heinlein put into the mouth of a character in one of his novels. Ie: If you have a two chamber legislature, one of the chambers should be devoted to looking over existing laws for those that should be repealed.

  • penn

    @keddaw (#30) The insult to the Israeli flag in the UK situation is completely irrelevant to hate crime legislation in the U.S. That travesty of justice was due to hate speech laws, which are non-existent in the U.S. because they are clearly unconstitutional.

  • Dan L.

    Laws like this always start out with noble goals, but their application tends to gradually and inevitably widen over time. This is exactly the kind of drift that Sarah’s essay is concerned about, and I think she’s absolutely right in her argument for why we should be worried by that.

    In that case, shouldn’t we be worried about scope creep and drift in regards to Sarah’s pet mask-banning law? After all, laws like this always start out with noble goals, but their application tends…

    I also disagree that the distinction between motive and mens rea is as clear-cut as is suggested in the OP. Easy to make a distinction when you get to manufacture contrived scenarios in which the two are clearly distinct but in the real world it doesn’t seem nearly so easy to disentangle them. I’ll leave it there instead of being glib about how a defendant might try to use the distinction in a hate crime trial.

    I’m also a little concerned about the quality of the legal analysis given the conflation of hate speech laws and hate crime laws, apparently both in name and content. Any actual JDs among the commenters who can provide professional legal insight on this?

  • Sarah Jane Braasch-Joy

    Dan L.,

    Why do you think the Due Process and Double Jeopardy issues arise?

    They arise, because the hate part of the hate crime is addressed separately from and subsequent to the violence part of the crime.

    Why is it addressed separately (and afterwards)?

    To perpetuate the legal fiction that it isn’t the motive (thoughts most typically expressed as speech and association), which is being criminalized.

    To perpetuate the legal fiction that only mens rea (mental intent) is being made an element of the violent crime.

    If motive and mens rea are the same thing, then why would anyone bother to address the hate separately from the violence?

    When you find those other JDs who are going to provide that legal insight for you, you might want to ask them that question.

  • Sarah Jane Braasch-Joy

    Penn,

    So, let’s say someone is “terrorizing” a community.

    How are they terrorizing a community?

    And, since you made the point that the validity of hate crimes legislation hinges on the act of violence having already occurred, let’s assume that someone perpetrates a violent act.

    Let’s say, as occurs not infrequently in the ghettoized suburban housing projects of France, a man burns his wife or girlfriend alive in front of their children.

    Should this violent act be interpreted as an act of terror against the women of that community, because they are women?

    How would we know?

    Should this perpetrator receive harsher penalties?

    What if the perpetrator screamed misogynistic epithets at his wife or girlfriend before setting her ablaze?

    What if he said nothing before setting her ablaze, but he had screamed misogynistic epithets at her and other women in the community in the past?

    Should we still impose harsher penalties for him having “terrorized” the community of women in that housing project?

  • Sarah Jane Braasch-Joy

    Penn,

    Also, let’s assume that that ghettoized suburban housing project has an egregious history of violence against women, which has been woefully neglected by the authorities.

    Let’s assume that women are generally sequestered in their homes, not allowed out without being accompanied by male family members, coerced into wearing niqab, denied education and employment, and forced into early marriages and denied access to sexual and reproductive rights and healthcare. Let’s assume that the state is aware of this state of affairs but does nothing. Or, let’s assume that the state has turned a knowing blind eye to the problem in the past, but is now actively implementing government policies to correct these past wrongs.

    Now is it ok to impose harsher penalties against that guy who set his wife/girlfriend ablaze?

    And, is it ok if he did or didn’t scream misogynistic epithets at her and other women either before or during the lighting her on fire in front of their children?

  • Anansi

    for the government to enforce these laws, it has to take it upon itself to draw group boundaries (i.e., to decide whether to prosecute someone for a bias crime against Jews, they have to decide what does or doesn’t constitute Jewishness), and may well end up defining someone as a member of a group against their will.

    You misunderstand how hate crimes law works. It does not depend defining the victim by the prosecutor, it hinges on what the accused thought thought the victims was. Case in point: last year there were 2 brothers from Brazil vacationing in New York. There were drinking at a bar and when they left they walked down the street with their arms linked. The accused thought they were a gay couple and attacked them, leaving one brother dead and the other seriously wounded. Neither brother was gay but the attacker was charged and convicted with a sexual orientation hate crime enhancement because he thought they were gay.

    In another case, a man was at a bar with his wife and a blind male friend. Just before they were ready to leave the wife decided to use the washroom and asked her husband to hold her purse while she went. Then the blind friend need to use the washroom as well so the man led him by the arm while also carrying his wife’s purse. To another man, this seemed like a stereotypical gay couple. He got angry at them and an argument resulted. He eventually left, but a few minutes later when the husband, wife and friend left the bar, the other man was waiting in the parking lot with a gun and murdered the husband. None of the parties involved were gay, but the killing was successfully prosecuted as a hate crime because the perpetrator perceived them to be gay.

    Another point that many here seem to be unaware of is that laws are not written to specify particular minorities for protection, but are written covering broad categories. If a gay person beats up a straight couple because he objects to them expressing their heterosexuality in public, that too is a hate crime.

    Similarly, the race portion of hate crimes legislation doesn’t just protect black people; check the FBI’s annual report on hate crimes and you will see that people are also sometimes charged with a hate crime for attacking white people.

  • Sarah Jane Braasch-Joy

    Anansi,

    Are you under the impression that you are defending hate crimes legislation?

    I can’t quite tell.

    What is that expression — something like: “With friends like these, who needs enemies?”

  • http://avoiceinthewilderness-mcc1789.blogspot.com/ Michael

    @Comment#37
    Conversely, how about if a battered spouse in this housing project sets her husband on fire after finally snapping, perhaps after screaming insults against men, venting the pain that has built up all this time? Anything can be construed as a hate crime, even though in this case it no doubt will not be. She certainly has a reason to hate men, unfortunate as it is. We all belong to some group, whether gender, ideological, ethnic, cultural, or what have you. The fact that many groups we belong to are not protected under hate crime laws only makes their hypocrisy plain. Everyone is part of some minority, whether they think about it or not. Atheists, for instance-the most hated minority now in the US.

  • Sarah Jane Braasch-Joy

    Michael,

    Exactly.

    And, thus, the competing claims.

    So, should competing claims cancel each other out, or should they both be prosecuted and everybody receive harsher penalties?

    We know what happens in the US, in the case of sex based hate crimes against women.

    They simply aren’t prosecuted.

    Because it’s always ok to hate women in America.

  • penn

    Sarah (@36),

    In response to your first question, hate crime perpetrators terrorize communities by using violence as a tool to ignite fear in those communities. It makes members of those communities afraid of going on with their lives or legally demanding their rights. When Matthew Shepherd was brutally murdered for being gay, the negative effects on society included the fear induced in people who are LGBT or even appear to be LGBT. This is still a problem, as this case in Iowa shows (http://bit.ly/n21Vne). I don’t understand why harsher punishments are a travesty of justice in these cases.

    The rest of your response refers to legal protections for violence against women that is frankly irrelevant to my post. Firstly, in the US hate crime laws do include gender motivated crimes (that doesn’t mean they are always appropriately used to their fullest extent). If they aren’t included or appropriately applied in France, then that is the problem. Secondly, how does removing protections of other groups help women?

  • penn

    Sarah (@37),

    “Now is it ok to impose harsher penalties against that guy who set his wife/girlfriend ablaze?” Yes.

    “And, is it ok if he did or didn’t scream misogynistic epithets at her and other women either before or during the lighting her on fire in front of their children?” Yes.

    Once again your complaint is about women not receiving proper legal protections, and I fundamentally don’t understand how that is an argument against hate crime legislation. It seems like an argument for strengthening them and reducing government’s deference to religion.

  • penn

    Michael (@40) and Sarah,

    “We all belong to some group, whether gender, ideological, ethnic, cultural, or what have you. The fact that many groups we belong to are not protected under hate crime laws only makes their hypocrisy plain.”

    I’m not entirely sure I understand your point, but it’s not only minorities that are protected under hate crimes legislation. If a group of black guys beat up a white person for being white, that’s a hate crime. If a group of gay guys beat up a straight guy for being straight, that too is a hate crime.

    I hope you both (Sarah and Michael) realize that the Violence Against Women Act fits the description of hate crime legislation you are arguing against. The National Organization for Women described the bill as “the greatest breakthrough in civil rights for women in nearly two decades. This is the exact sort of legislation that we need to be strengthening. We don’t need to remove protections for other groups because those protections are often unequally applied to women.

  • http://verbosestoic.wordpress.com Verbose Stoic

    Sarah,

    I think you can justify hate crimes on the basis of both intent and on the basis of consequence.

    The idea behind hate crimes is that the intent of the hate crime was to commit that crime on the basis of someone’s group membership. So taking it straight on intent, I can clearly argue that targetting them for, say, violence on the sole basis of their group membership violates their right to be treated as individuals, since it’s nothing about them as a person that makes them the target, but only their group membership, as you can see in the examples penn gave. So that’s the notion of intent: an intent to harm on the basis of group membership is indeed worse than an intent to harm on the basis of them as individuals, because it is an intent to disadvantage them on the basis of group membership.

    But if that doesn’t convince you, the consequences should. After all, doing it with this intent has the effect of making it so that members of a minority group are forced to hide their group membership or else risk being targetted on that basis, or at least sticking to areas where they are not the minority. The homosexual example is the clearest, but religion also counts since what they both mean is that those people should not express or in any way demonstrate their group affiliation or else risk attacks. For more visible groups, it would mean them avoiding places where they are in the minority, encouraging segregation. Surely our society has an interest in condemning that more strongly than a simple crime involving two people who dislike each other (although both are bad).

    Ultimately, the problem with your examples of violence against women is that in those cases it isn’t clear if they hate women or just hate that PARTICULAR woman, misogynistic rants aside. If a man, say, went out randomly assaulting women for no actual reason, the case for a hate crime would be clearer.

  • keddaw

    In the UK (sorry penn, but those are the laws I am more aware of) the definitions used – race, religion, gender, sexuality etc. – mean that someone targeting the one group that don’t currently require any additional protection, straight white males, is also guilty of a hate crime.

    It then boils down to a question of whether we should punish people harsher for their thoughts rather than protecting abused minority groups. Neither of which I think should happen, but the latter is the argument always trotted out in favour of hate crime legislation when it is challenged, never the former – because no-one wants to be seen to advocate thought crime legislation.

    Another problem I have with hate crime legislation is that it isn’t even rational in it’s own terms: it supposedly protects one group against terrorising by someone, but what if I select an individual at random and beat on them, and keep doing it over time. I am terrorising one individual but cannot get charged with a hate crime because I have randomly picked a person and am not threatening a group.

    On the opposite end of that scale, The Washington Sniper appeared to choose at random who they would shoot, giving fear to the whole DC area. Because their choice was not based on a subset of society but society at large they cannot be charged with hate crimes either.

    If we cannot use hate crime legislation when the terrorised target group is incredibly narrow OR very wide then what the heck use are they? Where is the logic? Where, indeed, is the benefit to society?

    Edit: Verbose Stoic – you mention protection for people who are members of groups, but only government proscribed groups. If I target Boy Scouts then I cannot be charged of a hate crime, but if I select a Catholic church congregation instead then I can. Where’s the logic in that? If I have an irrational hatred of red-heads then it’s not a hate crime, but brown skin is? People who carry MacBooks, no, people who carry Korans, yes. It makes no sense.

  • penn

    keddaw (@46), do you really not see the difference between, blacks, Jews, gays, and Macbook owners? Hate crime legislation is based on protected classes of groups that have historically been targets of violence and harassment due to their membership in that protected class. The same protected classes exist (at least in the U.S.) for discrimination in employment and housing.

    The current system is completely logical. You’re extrapolations are what are illogical. Protecting fans of Abba or skateboarders is completely unnecessary based on the actual evidence. If new evidence arises and fans of synthpop start getting systemically harassed and attacked then we can re-evaluate the data.

  • http://avoiceinthewilderness-mcc1789.blogspot.com/ Michael

    @Comment#44:

    I’m not entirely sure I understand your point, but it’s not only minorities that are protected under hate crimes legislation. If a group of black guys beat up a white person for being white, that’s a hate crime. If a group of gay guys beat up a straight guy for being straight, that too is a hate crime.

    My point is that, unlikely as this may be, a hate crime does not exist if you are targeted for being an anarchist, atheist, or something else not protected. They are entirely arbitrary, based on the perceived historic persecution of a group or their continuing vulnerability. Both of the groups mentioned above fall under this criteria arguably, but unprotected by hate crime laws. Are ideology-based crimes ever part of such laws (secular views that is)? Another example is crimes against adulterers. In many societies, the person who kills an adulterer gets off scot free, and this will certainly intimidate others. Does that qualify as a hate crime?

    Whether or not it does, the hatred of an individual, based on them personally and not some group they can be perceived as part of, does not. A hate crime only exists if you are in some greater collective. Group rights, in other words, as Sarah has said, and I share the distaste. The converse idea, of collective guilt, follows. We are not individuals, but part of the corporate body, whatever that may be-gender, ideology, nation, race, religion, or whatever. I was recently dismayed to discover that many people accept collective guilt as given. http://avoiceinthewilderness-mcc1789.blogspot.com/2011/08/on-collective-guilt.html

  • keddaw

    Well done penn, you missed the whole point of my post. Legislation is not written to protect persecuted minorities – that would at least be a defensible, if misguided, position – it is written to protect some arbitrary grouping of people which happens to include an allegedly persecuted subset. Hence white people are just as protected by hate crime legislation as black, men as much (or more, if you take Sarah’s point) as women, Christians as much as Jews, straights as much as gays.

    So we can see it obviously isn’t to protect persecuted minorities (why one subset requires more legal protection than me is a separate point) it is to punish a mode of thinking about certain arbitrary groupings of society. What we are doing is deeming certain schools of thought as undesirable and using the force of the state to punish people for having those ideas, whether or not those ideas are actually factors in the execution of the criminal act. e.g. If I a deeply religious and my religion is anti-gay and I post such messages on-line in my 20′s but leave the religion and realise I was wrong then get into a bar fight in my 30′s and beat a man who happens to be gay I would almost definitely be charged with a hate crime.

    If I attack someone on the street the crime is attacking someone on the street, not the reason I attack that person. The only thing that a reason can be is mitigation of the crime, not exacerbation of it. If I kill someone then the reason is irrelevant, I get a severe punishment. The reason for the killing may actually reduce the severity of the punishment – if I just found you in bed with my wife (although I think this is bogus) or if it is in stopping you committing a crime – but it should never lead to a more severe punishment.

    Hate crime legislation punishes anyone who wishes to exercise their freedom of conscience, freedom of speech and freedom to act by ensuring that anyone exercising those freedoms faces more severe punishments for any future crimes than an obedient, thoughtless citizen. They protect no-one and endanger everyone. They remove our freedoms under the guise of protecting minorities, while doing no such thing, and simply give the state another stick to wield to keep us in line. They remove freedoms today for, at best, a minuscule, temporary increase in protection for a small group at the expense of a permanent decrease in our freedoms and an unknown amount of increase in the power of the state in future.

    Incidentally, they also give paedophiles the same protections as gay people and while I don’t think that paedophiles don’t deserve the same protections as gay people I am somewhat amazed that they get more legal protection than you or I. Or take the case of a woman who assaults a flasher, she could be charged with a felony hate crime and the flasher with a misdemeanour. As Sarah says, “Be careful what you wish for”.

  • Anansi

    Incidentally, they also give paedophiles the same protections as gay people

    Absolutely pure 100% bullshit. You must be getting your talking points from the American “Family” Association.

    Or take the case of a woman who assaults a flasher, she could be charged with a felony hate crime

    Now you are just being damned ludicrous. Under what section of hate crimes laws could flashers in any conceivable way be protected??? And if your answer is “sexual orientation”, then I have no choice but to write you off as a member of the bigot brigade.

    There are legitimate arguments that can be made against hate crimes laws but these ones are completely discreditable.

  • keddaw

    Perhaps, that’s why they were in an incidental part at the end. I have no idea how true they are, I read them on a site and you’re probably correct that it was related to some “Family” group. So feel free to ignore them. But the rest of the argument stands.

    In fact, I totally retract that whole “incidentally part.” It was utter BS from a bad site that I shouldn’t have been taking as factual.

    I unreservedly apologise to all who read it.

  • keddaw

    The quote came from Rep. Louis Gohmert from Texas:
    http://www.youtube.com/watch?v=D_qfgC_3BYc

    I guess I forgot how nutty US politicians can be.

    I again apologise for writing it.

  • Anansi

    keddaw – Thank you for your retraction and apology, and particularly thank you for having the integrity to admit it when you were wrong.

  • James

    James: first of all, please be civil. This comment is very close to wishing harm upon someone, which I don’t permit here.

    If saying “maybe if you were in their shoes, you’d feel differently about it” is a threat, then how exactly should one convey in a non-threatening way that being a potential target of a hate crime might make you think about hate crimes differently?

    in many countries in the world, where an unaccompanied woman can expect to be the target of near-constant harassment and sexual violence

    There are obviously horrible atrocities committed against women all over the world. There is still a difference between the motivations behind sexual intimidation/imposition of half the world’s population versus a desire to intimidate or eradicate a minority because you hate “their kind”. Name a religion or a group that (directly or indirectly) motivates violence by teaching that women are evil and will burn in hell if they do not repent and become men.

    the evidence shows that hate-crimes laws are already seeing “mission creep”

    Okay. Targeting and killing a stranger specifically because they’re gay/black/Muslim/whatever is equivalent to accidentally hitting someone with your car, and because someone might try to use hate crimes laws in that circumstance, hate crimes laws are fundamentally flawed and serve no good purpose.

  • keddaw

    Anansi, thanks for calling BS when you see it. I would have hated for that to have overshadowed the rest of the argument.

    One point that hasn’t been mentioned is that forces often intentionally call a crime a hate crime in full knowledge that it isn’t in order to get extra resources to investigate the crime leading to an horrific miscarriage of justice when they catch the criminal. There is 100k per year in federal funding available to forces investigating hate crimes.

    I beat someone on the street because I hate them, or because they wear the wrong gang colours, or because of their sports affiliation, or because they are Republican, or because they come from the wrong neighbourhood, or because they have red hair, or because they have an iPad, or because they are atheist, or because they are socialist, or because they are Christian. One of these is different in law, can you tell which? Can you explain why? Does it make a difference to the victim? Does it make a difference to society? Does it affect the justice system +vely or -vely 100 years hence?

  • Hibernia86

    Though I feel that women have the right to wear what they want within reason, including the niqab, I would be swayed by the argument that we need to see people’s faces for public security. However, Dark Jaguar makes a good point about masks being used for Halloween costumes and in protests, so I am undecided on this point.

    Sarah, I can see what you mean that if you make an angry comment about a group then it will be assumed that any physical attack on that person is a hate crime while any attack on another person outside that group wouldn’t be. However, I think that there are hate crimes that are obviously aimed at certain groups. If a member of the KKK was to beat up a black man, perhaps we wouldn’t be able to tell whether it was a hate crime or not. But if he did it while screaming racial slurs at him or if he planted a burning cross in his yard afterwards, it would be pretty clearly a hate crime. You wouldn’t be able to say that he got into a fight with someone who just happened to be a black man.

    In hate crimes, you are not being punished for what you think. You are being punished for what you do, which is seek to intimidate a specific group of people with your crimes. You not only assault a person, you also purposely spread fear to that group of people in the community. If you murder a random person, you spread fear to everyone. But people at least have the knowledge that there is safety in numbers. If, however, you murder someone from a specific group because they are a member of that group, then the other members of that group know that they are going to be targeted. They lose their safety in numbers protection and realize that the target is that much more pronounced on their back. Because of this, crimes that intimidate a group can justify extra punishment. (and to respond to keddaw, stalking and attacking someone over and over would not be a hate crime because you are committing multiple crimes against one person rather than one crime against multiple people in the group)

    Sarah, I agree with you that motive should not be considered in prosecution, but you said that only hate crime legislation is based on motive, but that isn’t true. Another example of motive being taken into account is that if a person is abused and they later at some unrelated time attack their abuser, they often get lesser sentences .Child porn laws also fall under this category. Depictions of children having sex is only a crime if it “lacks serious literary, artistic, political, or scientific value.” And you can be punished even if it is a drawing of a fictional child. In both of these cases, motive not mens rea is what determines the punishment. I’ll let you consider whether that should be the case or not.

    http://www.missingkids.com/missingkids/servlet/PageServlet?LanguageCountry=en_US&PageId=1476

  • Hibernia86

    Also I should note that contrary to what Sarah said in her original post, races are biologically real, but they are real in a spectrum form rather than as units.

    And nations, religions, ethnicities ect are human created, but so what? They are real to the people of the community. You shouldn’t be harassed simply because of the ethnicity or culture you are associated with.

    As others have pointed out, hate crime laws protect men as well as women, whites as well as blacks, Christians as well as Muslims, and straights as well as gays. There are no special rights given. The “leaders” of each of these groups have greater say in the court cases than anyone else of any group.

    Hate laws do not allow groups to write their own laws. They are not, contrary to what Sarah said, going to especially hurt women and children. They do not allow groups to control the reproduction of women within that group (in fact, current laws allow women sole decisions on whether to abort or whether to give birth and require support from the father regardless of what the father wants, so if anything the laws give men much less control of their reproduction than they give women). This is similar to how Conservatives scaremonger over Shariah law. Just because there are a group of Muslims living in one area does not give them the ability to override the Constitution. It is the same for any other group.

    Sarah, at one point you say that social groups are voluntary and thus shouldn’t be considered in the law. At another point you talk about women being victimized who might not have a choice to leave the group. These two statements seem contradictory.

    While I agree that gender-based hate crimes should be treated the same as, say, racially-based hate crimes, it is harder to nail down whether the crime was aimed at all women or just the one who was attacked. You rarely hear people saying “Women do not belong in America!” Sarah mentioned the example of a woman being raped. But ask yourself this: if a gay man rapes another man, is that a hate crime against men? If a woman sexually abuses a five year old boy, is that a misandrous hate crime against boys everywhere? Many people would say no because the woman who sexually abuses the five year old boy is not seeking to intimidate boys everywhere. But the people who believe this can’t then turn around and say that raping a woman is a hate crime against all women. (this sort of reminds me of when I was reading quotes in news articles that said that Anthony Weiner had “degraded all women.” I highly doubt that anyone would have said something like that if the genders had been reversed).

    Also, to respond to Ebonmuse’s point, similar to what Anansi said, the government won’t be defining whether a person is, say, a Jew or not. It doesn’t matter if the person attacked was actually a Jew. The only thing that matters is whether they were attacked because they were viewed by the attacker as being a Jew. People won’t be defined, only the types of attacks.

  • Hibernia86

    And I agree that the focusing on robbing the elderly because they are seen as easier to rob (or raping a woman because that is who you are attracted to), while evil, are not hate crimes because they aren’t done to intimidate a group. In both cases, the attacker is not trying to change the behavior of the group at large, but rather take advantage of it. They don’t want to intimidate the community because that would make it harder for them to take advantage of their targets. Thus neither would (or rather neither should) fall under hate crimes legislation.

    In regards to Sarah’s example, if the husband sought to intimidate all women by burning his wife, then yes it would be a hate crime. In Michael’s example, if the abused wife meant to intimidate all men (rather than being just a rant that isn’t meant to be taken literally), even those who haven’t abused anyone, then yes what she did would be a hate crime and should be prosecuted as such, no matter how sorry we may be for her situation. Being attacked by someone does not justify you intimidating innocent people. Granted in this case, it would be difficult to tell whether she literally was trying to intimidate innocent men or whether she was just ranting in a non-literal fashion, so she probably would not be charged because of being innocent until proven guilty. The same standard should be given if it was the man who attacked, however.

    To respond to Michael and keddaw, I am at least open to the possibility of charging a person with a hate crime if they go around attacking adulterers, pedophiles, or flashers. We need to stop crime, but we need to do it through the legal system, not vigilante justice.

    In regard to penn’s example, does the Violence Against Women Act provide for federal assistance, both in laws and funding, against all domestic violence or just that perpetrated against women? (because there is sometimes domestic violence from gay men against their husbands and yes wives against their husbands as well). I tried reading through some of it and it is unclear how the law would be handled in some cases. The funding if not the law does seem to be limited by gender under this act. If the law is gender specific, I would say that it is sexist and unconstitutional and should be modified.

  • http://kagerato.net kagerato

    I understand quite well the distinction being drawn between intent and motive now, Sarah. That’s a much more thorough explanation than I’ve read before and is illuminating. If I had to summarize, I’d say that intent is a matter of what/whether/how, whereas motive is a matter of why.

    Furthermore, it does seem rare for the law to consider motives directly or formally. In that sense, I can see that hate crimes considerations would be a kind of novel expansion, a new legal structure. However, looking on the other end toward the evidence and information that typically is introduced into criminal trials, it’s pretty obvious that motive is considered all the time in an informal manner. I doubt there is any process by which you could actually exclude any and all consideration of motive from the minds of judge and jury, even if the law explicitly stated that was absolutely necessary for a fair trial.

    That being the case, a new question arose to me. What actual added utility do hate crime laws add to the legal system if motive is already taken into account in the minds of the participants anyway? If the jury members think about the motive in assessing guilt, and the judge is consciously or subconsciously influenced by motive in sentencing, what gain will result from simply encoding the background reality into the foreground of law?

    That question I do not have enough information to answer. Ultimately, there is an empirical element to it. Do hate crimes laws actually lengthen sentences in practice the way we would expect? Or do they merely give formal cover to a discriminatory process that happens in any case?

    Probably the larger and more important question here is whether hate crimes laws accomplish the goal they were written for. Do harsher sentences for declared bias crimes actually act as a deterrent? That’s what their utility rests on, after all. It seems like a discussion we should have had in great detail before they were passed, not after.

    [Sarah]: Just think about the consequences of legally defining social groups. By recognizing a social group as an objectively definable entity, and legalizing this so-called objective definition of whichever social group, and granting this legal fiction rights and legal personality, we do nothing so much as violate the personhood, autonomy, integrity (bodily and otherwise), and humanity of whichever social group’s members. Group identity is no longer an ephemeral process of self-identification. It is now a process of government indoctrination. Typically, the government cedes its authority to write this legal fiction for whichever social group to the “leaders” of the group, which almost always means the powerful group members, and usually means men. Legalizing group rights is a license to oppress the less powerful members of a group, rendering individual human rights meaningless.

    A recognized group with legal rights and personality is an entity, which will seek to perpetuate itself. The group leaders, powerful male group members most likely, will seek to control the means of reproduction of the group members, i.e. women’s bodies and children. Is it any surprise that group leadership will define women group members, who may or may not have had a choice in residing within or without the group, as the sexual and reproductive property of the group? Is it any surprise that a legalized group will defend its right to police its own members, promulgate and enforce its own laws, and defend itself against attack by other groups? No one suffers more under religio-cultural / legal communitarianism than women and children. No one loses more rights than women when groups are granted rights.

    I mostly agree with the concept that organization into powerful groups, especially those lead by a small minority and that receive state protection or assistance, can and does lead to oppression against both outside “others” and the weakest members of those groups themselves. However, I don’t know what the better alternative is meant to be.

    Most people at least appear to think that the institutions representing these groups you speak of are at least nominally useful in some meaningful sense. I often don’t agree; for example, I don’t see high value in religious organizations and many kinds of clubs and private societies. Say that the government decides to stop subsidizing and supporting these kinds of groups. How does the world change, in practice? Oftentimes the reason the organization was able to draw in state assistance to its cause is because of how large and influential it was to begin with. Are you suggesting the government step in and break these groups up? If not, how do we prevent them from continuing to amass power until they effectively can no longer be ignored (whether by government or private citizens)?

    I don’t understand how we can, in practice, stop people from organizing into groups with sufficient political power to mutate the law to their own ends. Is there some society or some country somewhere where this has actually been accomplished?

    One last thing: I think this reasoning was artificially enclosed into a sandbox by prefixing it as “social” groups. I don’t see how economic, political, legal, or other institutional groupings are in any way immune from precisely the same reasoning. In which case, we start down a path toward pondering the elimination of corporations, labor unions, and political parties — among many hundreds of other groupings.

  • Sarah Jane Braasch-Joy

    kagerato,

    You are exactly right. If you extrapolate out from my ideas to their full fruition, you will find a global society in which only individual human rights are recognized, but not group rights — not those of nation-states or religions or corporations or political parties. Human beings will be free to live and work and participate in groups as they wish (and, more importantly, leave as they wish), but no group rights will be recognized by the global state. Groups will have no legal personality. Only human beings will have legal personality.

    The global state will not and shall not concern itself with the groups, but only with individual human rights.

    I appreciate your concern about groups amassing enough power to overthrow the egalitarian government, but this is always a threat.

    The structure of the US government is an exercise in minimizing group power to protect the individual. It is only an iteration, and an iteration, which can be improved upon, in my opinion, but when you read the US Constitution, nothing jumps out at you so much as this — it was constructed to minimize group power to protect the individual — from the tripartite structure of the federal government to federalism itself, with the separation of states’ rights.

    It is always being attacked by powerful groups who would dismantle it in order to impose their moral world views upon all others.

    This is why it is so important for the government to stop turning a knowing blind eye to the egregious individual human rights abuses being perpetrated upon unwilling group members by their respective groups.

    Sometimes I am dismayed by the seeming unwillingness in human beings to not impose their subjective moral world views upon others.

    And, the follow up comment will be something about how my not allowing people to do so is my imposing my subjective moral world view upon others.

    But, it’s a lot like secularism, you see — it only works and guarantees freedom of religion, if we don’t allow people to say that their religious exercise includes imposing their religion upon others.

    That’s when it crosses the line and becomes an Establishment Clause violation.

    There will always be people who refuse to accept this.

    But, I don’t see capitulation as a viable answer.

    I only see trying to improve our society as much as we can as a viable answer.


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