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The United States senate recently passed a piece of legislation that would make assaulting a person because of his/her sexual orientation or gender identity a federal crime. There are already other hate crime laws, such as those relating to race.
Some conservatives are concerned that the law will infringe on their freedom of speech. After all, some conservative groups are strongly opposed to homosexuality, same-sex marriage and other such issues. Their concern is that their criticism of such things could be taken as hate speech and perhaps even as an assault under this new legislation. It has been claimed, however, that the legislation only covers violent actions rather than speech. However, it must be noted that the application of any law is subject to interpretation and hence it is possible that the legislation (or similar laws) could be taken to cover what is regarded as hateful speech. Obviously, the concern this raises is that such laws can serve to add to the erosion of the freedom of expression and eventually lead to harmful restrictions in such matters. However, let it be assumed that the legislation will apply only to violent actions.
I suspect that the law is intended, in part, to send a message to those who will be protected by the legislation and those who it is intended to protect against. However, I do have concerns about using such a means to send a message.
However, my main concern is a moral one, namely that the legislation seems based on the assumption that an assault on someone because of his/her sexual orientation or gender identity is somehow worse or of greater concern than an assault on someone for any other (non-hate) reason.
For example, let us suppose that I am running with a friend who is openly gay and cross-dresses. As we run along someone jumps out yells “take that, skinny!” and cuts me on the arm with a knife. Realizing that the person in the skort (a running skirt) is a guy, the mugger yells “fag!” as he takes a slash at him, also cutting him on the arm. After we subdue the mugger and tie him up with my friend’s tasteful pink running scarf, the police haul him off. Because I’m a straight guy wearing shorts, my cut is a matter of assault and not a federal crime. But, since my gay friend was wearing a skort and the mugger yelled “fag”, the attack on him is now a federal crime-even though his injury is the same as mine. As such, it would seem to be unjust for the mugger to be regarded as having done something worse to my friend than to me.
Of course, it could be replied that my friend suffered more harm because the mugger hurt his feelings as well. But, calling me “skinny” might have hurt my feelings as much as being called “fag” hurt my friend. Also, I am sure that the slashing would hurt much more than the name calling.
It could be added that a while the individual injury was the same for the both of us, the attack on me was just an attack on me as an individual. In contrast, the attack on my friend was somehow an attack on a whole class of people. Thus, I would just be a person being stabbed while my friend would be a veritable Platonic form of gayness and cross-dressingness being stabbed. As such, the crime would be much worse-it would be an attack against many and not just against one.
It might be pointed out that every person is part of many classes and, as such, the same sort of logic would apply. If someone attacks me, they would be thus attacking all men, all people of French, English and Mohawk descent, all runners, all philosophers, all gamers, all people who own huskies, all human beings and so on. On this logic, the severity of the crime would be based on the number (and perhaps the importance )of groups the person belongs to, which seems rather odd.
In reply, someone might note that it is not so much group membership that makes the attack worse, it is the intent of the person making the attack. After all, the legislation is based on the intent-it is assaulting a person because of his/her orientation/gender identity that makes it a federal crime.
Going back to the example, if the person had attacked us for any non-hate reason (as defined by the relevant hate laws) then the crime would not be a federal crime. For example, if we were attacked because he wanted money, was angry at the world, hated runners or hated fit people, then it would not have been a federal crime. But, as soon as the attacker said “fag”, then that would seem to make it a federal crime because it would be possible to ascribe to him a motivation of the right sort of hate.
Intent is, of course, a relevant factor. If, for example, we were attacked because the person mistook us for two people that had just killed his wife, then that would be a mitigating factor. However, if the person has a wrongful intent to inflict harm, then the differences between being motivated by greed, general rage, hatred of runners or hatred of homosexuals seem to be largely irrelevant. What matters the most is the actual harm done and not the distinctions between such wrongful motivations. As such, treating such assaults as federal crimes would add an unjustified level of possible punishment.
Of course, a case can be made as to why such intentions make a crime worse-and I invite someone to make that case.
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This is the topic of a discussion I had with my oldest son the other day, and you’ve hit nicely on some of the concerns we shared over hate-crime legislation.
Have there been crimes where the sole intent of the attacker was to instill fear in a population of people? No doubt. The hate crimes legislation on the books in this country are the result of the destructive and incendiary actions of bigots during the Civil Rights Movement, and have their place with regards to defining intent and leveling stiffer penalties where such cases of violence are concerned.
Have homosexuals been singled out and brutalized in similar ways? Obviously not to such an extreme degree, but there are many individual cases where the victim’s sexual orientation was the primary motivation for the crime.
With the signing of the Shepard/Byrd Act at hand, a clear message is being sent: the act of physically attacking and inflicting harm upon a person simply because they WHO THEY ARE – their acknowledged and obvious membership within a certain population of people – will carry as a consequence a stiffer penalty when prosecuted.
In the situation you described, the attack of the homosexual, while obviously stemming from an attitude of possibly desperation and maybe even vengeance, on the surface does NOT appear to be the same as a crime motivated by the kind of hate defined by the Act.
However, if it comes out that you were attacked simply because the perp noticed the cross-dressing runner, and that THAT was his motivation for the attack, them perhaps BOTH of you could claim hate and demand a stiffer penalty.
Interesting . . .
I take issue with your statement that the crime is the harm–it is still the intent to harm; there is no crime (except possibly negligence) if the harm comes about accidentally.
TYSDADDY has nailed it I think. It is a kind of terrorism. Your example is either a good or a bad one (depending upon your point of view). As you have told it, the attacker is a nut-case and would cut the next person who came by because they were wearing blue shorts (substitute your own flimsy pretext) and is clearly not preying on a minority with a view to terrorizing them.
I think these kinds of laws can rebound leading to increased resentment towards the protected minority. But in principle, as Butler correctly identified, and the law has always known, ethics comes down to intent.
Clearly there are few easier things to do than drafting bad law and this may be such an instance.
The open crime of physical assault, whilst almost a paradigm of harm can, if harm is opened out into mental harm, or harm as in a denial of employment possibilities, begins to blur and merge with various “criteria” of free speech and adequacy for an employment post or expression in dress, culture or dress etc..Obviously the scare quotes are to give the voice to the difficulty of clearly ascribing harm in such cases. Yet hate can easily be channeled into these cases.
Perhaps one can argue that harm can be defined in terms of a possible assault on one’s identity and hate issues where there is no rational argument for the actions so undertaken. On the other hand dislike, or even revulsion in the case of some anti gays or anti Moslem, or anti Jew, or anti black, anti immigrant, etc., is no rational reason to undertake an action which adversely affects snother persons identity. One could say that the hate element in such acts is part of a lack of willingnress to undertake possible dialogu and understanding and simply harming another in whatever form they can.
Adam Smith in his theory of the Moral Sentiments talks of the narrow parochialness of the man who has not met and mingiled with a variety of people and cultures, a view which was in turn an argument for the growth of the merchant and man of business, and as against the older medieval frozen society with its procrustean rigidity of rules of appropriateness.
In turn those who see themselves as being insulted (assulted/harmed) by different views to theirs can not stand within a proscribed circle of unquestioned beliefs. Different identities need to stand face to face and mirror their possible mutual identity threats. Sorry got a bit carried away there, perhaps due to the recent BBC airing of the UKs BNP spokesperson. His hate was evident, his lack of rational argument evident. But his inarticulatenes only served as a centre for those who are inarticulate and powerless apart from a pure physical outlet – hate – of their lack of role and surrounded by a myriad of identites which seem to matter apart from theirs.
The issue is less theoretical than you make it out to be. I don’t think that there are many attacks on people because they are thin or because they are runners. On the other hand, people are attacked because they are gay or because of their race. The purpose of the law is to dissuade such attacks, which are all too common: the idea is that a stiffer penalty for hate crimes will keep bigots from committing them. If attacks on thin people were to increase, it would make sense to increase the penalties for those attacks.
I should point out that the reasoning behind FEDERAL hate crimes law can be different from that of state-level hate crimes laws. Given the history of Jim Crow and other discriminatory practices sanctioned by state and local “justice” systems in our history, making a hate crime prosecutable by federal authorities means that local law enforcement can’t prevent the laws from being enforced altogether by refusing to prosecute criminals who act against unpopular groups.
Mike,
Your Platonic running partner was wearing a skort. What would go with that? A net athletic vest. Seriously, is this Obama sending a message about how his heart is in the right place even though he’s not clarifying the position of gays in the military. Where are they on that now? But it’s easier to make a law that can’t be enforced and that has more holes than the aforesaid net vest.
http://www.huffingtonpost.com/aaron-belkin/obama-to-fire-his-first-g_b_199070.html
Law-makers make laws. That’s what they do. To them, there is no societal problem in existance that a cleverly crafted law cannot fix. According to JFK in Profiles in Courage, law-makers respond to three distinct pressures: 1) they want to be liked, 2) they want to be reelected, and 3) they respond to their constituencies (i.e. interest groups, organized letter writers, economic blocs, polls, etc.) Hate crime legislation is a response to one – or all three – of these pressures on a voting majority of law-makers. It takes an radically emotional issue to incite a more or less apathetic populace into action. The more heinous the crime, the easier it is to glom together an enraged bloc of voters into an organized campaign. The more vociferous the campaign, the more pressure on the legislators to respond. Hence, federal hate crime legislation. Human nature has more to do with it than logic. Stephen Pinker has argued that our species is less violent now than it has ever been.
I think I’m repeating – but in a more simplistic, less sophisticated way (sorry) – some of what has been said.
But morality is different from law, of course, and law is usually relevant to an age. So, for example, at a time when stealing someone’s sheep would make a material difference to the deprived owner (possibly even life or death), you can see why the punishment in society’s eyes might be hanging. Later, when insurance and surplus goods mean most material objects can be replaced, the punishment is a lesser one.
Instead, we have enough wealth in the West to recognize the value of every individual, which is why crimes such as rape are now considered more abhorrent than before. (I mean this objectively).
Taking this valuing of the individual further seems to fit with the current push to establish certain ‘hate’ crimes as more anti-society than others. Now society is more secularized, there is more room for the determinist view (or at least the idea that we don’t choose certain states; or that certain orientations aren’t a form of rebellion against God, etc).
In our society, we are emerging with (relatively) new ideas, particularly about race, homosexuality and gender. Different sections of society will take these on board at different rates; some not at all. The prevailing general view is that individuals who practise (or who are) something that doesn’t hurt anyone else should not be attacked for something that is inherent. This also is a counterbalance to the idea that once they were persecuted, disenfranchised or treated as lesser people by the state for this very act of being.
I’m not saying this is right: I just think it seems an inevitable result of the relationship between law and the recent past or the current values.
I’m just going to echo the sentiments of others here… I think the additional wrongness here is the result of the attacking an already disenfranchised group.
I think of the law in this case as a prophylactic to prevent/discourage already disenfranchised people from experiencing physical harm. I think its justified.
I don’t think any of the answers given really responds to the thought experiment that Mike initially poses with him and his transexual friend… Not even mine.
So let me try to formulate my position in a reformed thought experiment like Mike’s:
I’m running with my friend who is a Nazi holocaust survivor, who also happens to be gay, and was mistaken for a middle easterner and consequently severely discriminated against immediately after 9/11. To add insult to injury, each of these groups have indelibably left a tattoo on him that he cannot cover up, be it a serial number on his arm, to a rainbow flag, to a I hate arabs tattoo across his forehead by a terrible person after 9/11.
We’re jogging along, and the same scenario plays out as Mike describes. There does seem to be some additional tragedy that makes the wrong even more wrong to have done on my hypothetical friend. Was he harmed any more than I? in some senses absolutely, since he has already been harmed in the past, which makes his constitution more easily injured.
Wayne: How about a gay Holocaust survivor in a wheel chair? We have a group of homophobic anti-semites (and islamophobes) who attack people in wheel chairs. My gut reaction is to break their legs with baseball bats and refuse them the right to a wheel chair.
Every now and then some crime is picked on as being worthy of special discouragement, Stiff tariffs are devised and made mandatory, beyond the judge’s discretion. Such actions are often the result of public pressure or a dim view becomes general. Knife crime, gun crime, crack cocaine are common targets but it is not difficult to see that they are actual, provable crimes whereas the mens rea of specifically directed hate is less tangible. Certainly not establishable beyond reasonable doubt. One can imagine a latter-day F.Lee Bailey beginning his summation with – “In 1984 the novel of George Orwell the totalitarian government has established a new offence – that of thought crime. ….
Amos,
But once they were handicapped, denying them wheelchairs out of hate could be a hate crime itself…
Michael R.,
Interesting point. Passing such a law could be a way to try to appease the folks who expected much more.
Anns,
That is an excellent point. The federal aspect does allow the feds to step in when the locals are failing to enforce existing laws. Of course, the main tool used during the 1960s was the claim that a person’s civil liberties had been violated. Presumably the same method could be used today.
If there is a serious problem with local law enforcement failing to enforce existing laws, then hate crime laws could be justified on those grounds-that is, they exist to make sure that people do not get away with crimes because the victims belong to a hated group.
Mike: I was joking about the wheel-chairs of course, but Wayne’s point (as I understand it) is that those who have suffered (Holocaust victims) and those who are oppressed (gays) are entitled to special protection or special treatment of sorts. So, given that principle (which I accept), we would treat more harshly the violence of the KKK or neo-Nazis against blacks than we would the violence of Black Panthers against the KKK; we view much more harshly the violence of the SS against the Jews than we do the violence of the resistance or the Warsaw ghetto against the Nazis. Hate crimes are generally considered to be those directed against oppressed or exploited groups. Oppressed groups can be guilty of terrorism, for example, but not of hate crimes.
amos- I think I agree with everything your saying, with one caveat… I’m not entirely sure that the KKK isn’t an oppressed group. I think most people view the KKK as morally inferior to the norm. They must conduct their practices in secret (hence the hoods… not the ONLY reason for the hoods… but one of the primary reasons…. so they can’t be singled out for their practices). If I knew about a KKK member in my class, I >MIGHT< grade their papers more critically than if they were not (I’m not entirely sure about this… and I don’t want to set myself up to be accused of unfair grading practices
)
So in many similar ways they are an oppressed group like racial minorities, or much more like religious minorities. Furthermore there is a long history, at least in the public media, that thoroughly discredits and demeans their beliefs, so they could even be accused of a systemic attack of their beliefs.
I’m not seriously putting up the possibility that the KKK should be up for things like protection from hate crime laws, but I do think they should be protected by free speech laws… But I’m having a hard time justifying why they shouldn’t be be protected by the hate crime laws…
Wayne: The wheel of history turns and yesterday’s oppressors may become today’s victims of oppression. The day that hate crime laws are necessary to protect the KKK will be the day that racism against blacks is no longer a factor in the U.S., just a belief held by fringe groups like the KKK. I’m not sure that said day has arrived yet, but hopefully, it will.
Of course, a case can be made as to why such intentions make a crime worse-and I invite someone to make that case.
How about this:
When an attack on someone is motivated by racial hatred, the crime is compounded, not because the attack itself is somehow made worse due to the attacker’s hatefulness, but because the attack signals–as a matter of fact–a credible death threat against a group of people (gays, in this case). In other words, killing someone because they are gay–besides being an obvious act of murder–is also equivalent to sending a threatening note to every gay person in the community that reads: “I’m going to kill you.” And issuing death threats is, of course, against the law.
The important thing here is that the death threat component to the crime is purely an empirical finding: it is only due to the specific history of violent crime in this country that some classes are credibly “threatened” by hate crimes while other classes are not. So, for example, because there is no history of philosophers being singled out for attack, an attack motivated by hatred for philosophers does not constitute a credible death threat against the community of philosophers. But for a different class, say black people, the threat would be all too credible.
Interestingly, I think using this rationale you could also justify similar “hate crime laws” for situations not involving a broad class such as gays or blacks. For example, say the Hatfield and McCoy families have a long history of attacking each other. If John Hatfield attacks Bill McCoy out of a general hatred for McCoys, then I think you could make an empirical case that all members of the McCoy family were credibly threatened, and that therefore this death threat component should be added to John Hatfield’s crime.
So in the end, the rationale for laws against hate crimes reduces to the rationale for laws against issuing death threats. The final equation is “hate crime = violent crime + death threat”.
What do you think?
(PS: Another interesting twist to this is that I think the requirement that the death threat component be “credible” could have a mitigating effect in some cases. For example, in a town in which KKK attacks are common, a hate crime against a black person would constitute a very credible threat against the wider black population–after all, this is a group of likeminded people whose stated aim is to terrorize blacks and other minorities. However, if the attacker was just sort of this lone actor in a place where racially motivated crimes were extremely rare, the crime wouldn’t pose much of a substantive threat to others–it would mostly be discounted by the targeted minority as a freak occurrence. In this case, I don’t think a hate crime charge would be warranted–because the assailent in this case lacked the capacity to threaten anyone by his crime.)
When an attack on a person is motivated by racial hatred, the crime is compounded, not because the assault itself is by some means created worse because of the attacker’s hatefulness, but because the assault signals–as a matter of fact–a credible demise risk against a team of people today (gays, on this circumstance). In other words, killing somebody since they’re gay–besides becoming an apparent act of murder–is also equivalent to sending a threatening be aware to every single gay person within the neighborhood that reads: “I’m heading to destroy you.” And issuing dying threats is, naturally, in opposition to the law.There does seem to become some extra tragedy that tends to make the wrong even a great deal more wrong to possess accomplished on my hypothetical pal. Was he harmed any a lot more than I? in some senses absolutely, considering that he has currently been harmed in the previous, which can make his structure a lot more simply injured
I am in full support of such legislation and I don’t agree with your article one bit. I think a person who commits a hate crime should be given the worst possible punishment. I lost a dear friend to a hate crime just because he was gay. People who commit such crimes should be punished.
Sadly for many people a hate crime is not thinking like they do. For example a person can think gay is okay, a person can think gay is not okay. Both ideas should be okay, but persons from both sides often want to persecute the person who is on the opposite side. A crime like physically harming someone because you do not like them for whatever reason should always be a hate crime. It is wrong to make certain groups of people “better” than other groups by giving them better law protection.