Wednesday, July 30, 2008

Hating the crimes

Over at Lean Left, Tgirsch links to a post at another site where a discussion was going on
about whether or not it’s justifiable to classify “hate crimes” as a separate class of crimes over and above just ordinary assault/murder/vandalism/whatever.
I left a couple of comments there (i.e., at Lean Left) on the topic, which I thought could bear repeating here. This is a re-edited and somewhat expanded version of those comments.

The usual (flawed) understanding of "hate crimes" legislation is that it would make the hate itself, rather than any actions based on the hate, the crime. It's that misunderstanding that leads people to fear that "hate crimes" will lead inexorably to "thought crimes," to people being prosecuted strictly for their opinions.

The thing is, I don't know of anyone who's proposed anything approaching that, i.e., proposed a law to make hate itself illegal. "It's now illegal to be a bigot." Besides the Constitutional issues, it's absurd on its face to seriously entertain the notion of being able to simply outlaw racism or ban sexist or homophobic remarks or whatever - or at least it's absurd to think any such law would actually achieve any of those ends or even be enforceable. So let's drop that particular misconception and focus on the real argument, one which, as is explicit in the very phrase "hate crimes," refers to "crimes motivated by hate."

First, it needs to be noted that 45 states, the District of Columbia, and the federal government have some version of hate crimes laws, as do a number of other countries. So the idea of such laws is neither outlandish nor even unusual. It's their scope and application that are at issue, not their existence.

The argument for hate crimes as a separate category of crimes is, in a nutshell, that hate crimes are different from "ordinary" crimes both because the motivation is more insidious, more destructive to community and society, and because the victim of the crime is not the only victim: A message is being sent to every other member of the same group as the victim that "You could be next. You are not welcome here." As some have expressed it, the individual is the victim but the group is the target.

While I understand and even basically agree with the logic, still, I must confess that I have never been moved to favor hate crimes being a separate category. But I have favored and do favor having "hate" be an aggravating factor in other crimes, that is, a factor that would result in a stiffer sentence upon conviction. And just to be absolutely clear to a degree quite beyond what should be necessary, this would not just apply to obvious cases such as that of Matthew Shepard. (Or Nekedia Cato. Or Lawrence King.) Get into an argument in a bar and slug someone who later turns out to be gay, you've committed assault. Get into an argument in a bar and slug someone because they're gay, you've committed assault aggravated by hatred, which results in a tougher punishment.

That, frankly, seems very straightforward to me, a way of stiffening society's stand against bigotry, and one that I can't imagine any decent person opposing. Because yes, slugging someone in a bar because they are gay (or black, or Jewish, or a woman, or whatever) is worse than slugging someone in a bar because you had a few too many beers and an argument about who was the greatest left-hander of all time got out of hand. It is more harmful to the community as a whole and it does deserve a harsher penalty, even if the crime is not of the overtly cruel "I'm gonna go out and kill me a fill in the blank" type to which it's too easy to limit ourselves when we think of bias or hate crimes.

The trickier part, and for that same reason the more controversial part, comes in when we move away from the immediate crime against an individual to the area of "promoting hatred," the creation of an intimidating atmosphere such that certain people or groups are hindered in their ability to participate in the community. Some argue that by their very nature, hate crimes against individuals reveal an intent to intimidate - remember the idea that "the group is the target." While the impact of one such attack may be arguable, it would be easy to agree - and I think most would - that the occasion of a string of incidents would demonstrate an active effort at intimidation.

But what if there are no such incidents? What if, instead, it becomes clear that the intent is to use calumny and condemnation to drive "them" out of the community or at least underground, invisible, by making it too uncomfortable, too threatening, for "them" to do otherwise, even in the absence of direct violence?

Claims are made that no Constitutionally-valid law can touch this because in that absence of specific acts or specific incitement to such acts that would be "punishment of opinion," the creation of a "thought crime." But that simply won't fly. After all, we regard economic coercion, e.g., a Mafia protection racket, as illegal not only if there is no actual damage but even if there are no actual threats, merely implied ones. Why should emotional coercion, psychological intimidation, based on prejudice be different? Why should intimidation be beyond the reach of social regulation, i.e., law, because the driving force is bigotry rather than greed?

Now, as a matter of practicality, establishing proof of an intent to intimidate a group in such a way as to drive its members away or underground is clearly harder than in the case of doing it to an individual, especially if there are no "overt acts" to which a prosecutor or a plaintiff's lawyer could point - but as a matter of the principle involved, I simply do not see a difference. Which means, I say, that "active promotion of hatred" legitimately can be criminalized in precisely the same way that other forms of intimidation can be. Yes, again, it might be harder to prove, but frankly that's not the point here.

Taking another step back, though, is where things start to get sticky for me. What if you can't say the intent is to drive "them" out but it is clear that that is the effect? Intent clearly matters in criminal law, but not always in civil law.

(Sidebar: Another spurious objection to hate crimes legislation is that it would of necessity involve determining intent, and that would be "mind reading." But that's silly: Determining intent is routine in criminal law. Just consider the obvious case of [deliberate] murder versus [accidental] manslaughter. What's more, "lack of criminal intent" can be a defense against some charges.)

Would it be possible to craft Constitutionally-valid legislation that could penalize such an effect even lacking a showing of intent? I have to admit I'm not at all sure. Certainly, we're done something similar before in the "disparate impact" standard applied to discrimination cases under civil rights laws, but still I have my doubts: Those sorts of disparate impacts could be demonstrated by looking to numbers, to quantities. If you're running a business that uses un- or semi-skilled labor in an area which is 50% black but only 5% of your employees are black, you'd better have a damn good reason, especially if it develops that 35% of your applicants were black. (Yes, I know I'm oversimplifying for the sake of illustration but the point that disparate impact can be based on actual data remains valid.) But when we look to the effect, the impact, of "promoting hatred," what are the standards? What measures do you apply? And if you do find such measures, where is the line to be drawn? The principle remains the same, that of opposition to bigotry in all its forms and of opposition to the effects of bigotry in all their forms. But we may have reached the point here where the competing principle of free speech and the practicalities of enforceable law may overwhelm the other.

Which brings up the last point I wanted to cover here, and I think it's an important one: What if that calumny and condemnation come not from Joe Blow or Jane Doe but from a person or persons in a position of authority or influence? Does that matter? I say it most certainly does. Should a minister who repeatedly castigates homosexuals as "abominations" and worse truly and reasonably be able to claim to have zero responsibility if one of their parishioners acts on that teaching? Can those who for years on end have denounced abortion providers as "murderers of unborn children" really properly blink their eyes in (possibly feigned) innocent confusion and claim it has nothing to do with them when a bomb goes off in a clinic? Put more generally, is there a point at which "I'm only expressing my opinion/belief" is no longer a justification, no longer a protected expression, but becomes like the classic of shouting "Fire!" in a crowded theater? On an ethical and moral level, I say yes, absolutely, and our condemnation of those who use their pulpits, whether religious or bully, to spread bigotry should be denounced unreservedly. But on a legal level I have to say that I don't know how you define that point or determine where it is, decide how and when you can actually assign responsibility. Which is unfortunate, because there are some hides I would very much like to see nailed to a courthouse wall on exactly this basis.

Part of the difficulty - or perhaps just my difficulty - here is the adage "hard cases make bad law," which, though often misunderstood, means that a close case, where the decision is a struggle, is a bad basis for establishing a rigid standard. So while I'm clear on the principle that the mere expression of hatred must be, even if unhappily, regarded as protected speech, I'm also clear on the principle that the active promotion of hatred is not, especially if it has some discernible effect. What I'm not at all clear on is just where the line between them is drawn or just how to locate it.

That, however, does not mean we shouldn't try.

Footnote: It seems to me that there are two kinds of people who object to hate crimes legislation, and while they advance generally the same arguments, their, um, intent is different. On the one hand are the civil liberties absolutists, who can be from the right but are more usually from the left, and on the other hand are those, exclusively from the right, who just want to make sure no one interferes with their God-given right to be bigoted scum. The former group I will gladly engage in conversation; the latter group, whose members can usually be identified by their harping on claims that whites and Christians are victimized groups and their repeated references to being oppressed by "political correctness," can kiss my fat ass.

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