President Obama recently signed a hate crime bill, making it into law. Roughly put, the law makes assaulting a person because of sexual orientation or gender identification a federal offense. It has been claimed that this law will help protect people.
Naturally enough, this raises the question whether such a law will help protect people. Presumably what is meant by “protect” is that the law will deter people from committing such assaults. This, of course, assumes that people who commit such crimes will be aware of the law and that the fear of the law will cause them to not engage in attacks they would otherwise conduct if the law did not exist.
On the one hand, people can be deterred by the threat of punishment-especially when the law is a federal law. People presumably have more fear of federal laws than they do of lesser laws because of the greater power of the federal government. As such, there is reason to believe that the law can deter-especially when a high profile case or two makes the law and its consequences widely known to the sort of folks who would be inclined to attack such people.
On the other hand, assaulting someone is already illegal and punishable by the law. Presumably the people who have been assaulting folks who are now protected by this law were aware of this fact, yet they acted anyway. Also, the sort of folks who would be engaging in hate crimes would seem to be the sort of people who are not rational calculators. That is, it seems unlikely that they weigh out the probabilities and consequences before acting. Presumably if they are committing hate crimes, they are driven by hate and would tend to just act on the basis of this emotion.
Of course, the same can be said of any law. When I was an undergrad, one of my professors pointed out that prisons did not really work as deterrents. After all, if they worked, then they would be empty. Of course, it can be replied that the law (and prisons) do not deter everyone, but they do have some deterrent value. As such, this law might deter those folks inclined towards hate crime who are capable of making rational assessments about punishment. Of course, those folks would probably be deterred by the laws relating to assault.
The law does, of course, provide a way to punish people more severely. While this does not necessarily enhance deterrence, it does give the law more retributive force-and perhaps that is part of the appeal.
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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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- Congress extends hate crime protections to gays (seattletimes.nwsource.com)
Recent news stories have brought hate crimes into the national spotlight. A hate crime is defined in terms of the criminal’s motivations. Put in general terms, a hate crime occurs when the criminal targets someone because of his/her membership in a specific group. Typically, the group is defined in terms of race, religion, sexuality, nationality, age, gender, political affiliation or other such factor. While the name seems to suggest that hate is the defining factor, committing a crime that is motivated by hate is not a sufficient condition for a hate crime. For example, if Bill (a Caucasian) beats Sam (also a Caucasian) to death with a tire iron over the course of several hours because he hates Sam for being successful, then no hate crime has been committed. If Bill throws a beer can at Juan (a Hispanic) while yelling a racist slogan about Juan’s ethnicity, then he has (potentially) committed a hate crime.
The importance of defining something as a hate crime is that it typically changes the legal seriousness of the action. For example, suppose that Alice and Bill commit crimes that are otherwise the same. If Bill commits a hate crime and Alice does not, then Bill will typically receive a more severe punishment than Alice. This raises important questions about the justification of such disparity.
On one hand, there do seem to be good grounds for punishing hate crimes more severely. One reasonable justification can be found in the fact that motive is a relevant factor in assessing a crime. As an obvious example, if Alice kills Jane it makes a great difference whether she killed Jane to protect herself from a senseless attack or because she was angry about Jane sleeping with her husband. Another reasonable justification can be found in the fact that punishment is often intended to bring about a social good. Many of the relevant groups, such as those based on race, sexual orientation or gender, have often been given far less protection in the past. For example, in the United States African Americans were often subject to terrible crimes (such as lynching) and the wrongdoers were not punished. By having special punishments for crimes against members of such groups, a message is sent that such evil will no longer be tolerated.
It might be objected that the law should simply be enforced and that the special punishment is unjustified because punishments should match the crime. It can be replied that “over-punishment” is needed to make sure that the message is clear and also to make it more likely that the deterrence will be effective. After all, one might argue, the more severe the punishment, the greater the deterrence value.
On the other hand, there seem to be grounds for questioning the disparity. One thing worth considering is that while motive is an important factor in assessing a crime, there seem to be cases in which the distinction would not warrant a different punishment. For example, if Alice kills Jane because she hates Jane for being so pretty, then Alice has clearly done something very wrong and should be punished for murder. But, suppose that Alice kills Jane because she hates her for being Hispanic. Morally, the cases seem the same. Both involve murder that is motivated by hatred. Further, the situations involve factors that are accidental in the philosophical sense: Alice did not choose to be born pretty nor did she choose to be born Hispanic. In both cases, Alice is killed because Jane hates a quality about Alice that clearly does not warrant such hatred. In either case, Alice is just as dead and the motive is hatred. From a moral standpoint, there would be no reasonable justification for punishing Jane more in one case than in the other-the harm and the motives are morally equal.
It might be objected that the hate crime is worse. After all, if Jane killed Alice for being Hispanic, then Jane is, in a way, attacking all Hispanics. This makes the crime worse. The obvious reply is that if Jane killed Alice because she hates pretty people, then she would be attacking all pretty people. Thus the crimes would be on par.
It might be further objected that perhaps hate crimes should be defined so that any crime based on group membership would be a hate crime. The obvious problem with this is that everyone belongs to many groups, so it would seem that all crimes would be hate crimes. Naturally, it could be said that the motivation has to be based on the person being part of a group, so that a crime aimed at an individual for other reasons would not be a hate crime. For example, if Jan stabbed Carl because she wanted to steal his wallet, that would not be a hate crime (unless, of course, it is a hate crime directed against people who have wallets). If she stabbed him for being a transsexual, then it would be a hate crime.
Naturally, in either case Carl would still be stabbed and presumably the motive would not be his main worry. Of course, this then again raises the question about whether the motive in such cases would be a relevant difference. From the standpoint of Carl, it does not seem to be a relevant difference-what seems to matter is that he was stabbed by a person who was acting from an evil intent in both cases. Thus, it does seem that while the motive can be a relevant factor in assessing a crime, the distinction between crimes committed from hate and crimes committed out of other evil motivations does not seem relevant in assessing the just punishment.
A second factor worth considering is that punishing people more severely in order to send a message seems unjust. If punishing people more for committing a hate crime is intended to deter hate crimes, the same logic should apply across the board. If it is justified in the case of hate crimes, then it would also be justified in the case of other crimes. Unless, of course, it is somehow less important to prevent crimes then it is to prevent hate crimes. In this case, the disparity would be justified. However, this does not seem to be a justifiable position. One point well worth making is that hate crimes are often more brutal and vicious than “regular” crimes. In such cases they should be punished more severely. This is not because they are hate crimes, but because they would be worse crimes regardless of the motive of the evildoer(s).
I saw on CNN this morning that what appears to be a noose was found hanging in a tree at the University of Maryland on September 6. The tree is near the Nyumburu Cultural Center. Because the Black Faculty and Staff Association and the Black Explosion newspaper are located in this building some suspect that the noose was put in the tree to send a message of hate. There was, however, no not attached to the rope and no one has claimed responsibility or sent any threats.
The rope was apparently in the tree for a while anyone noticed it. This is hardly surprising-campus trees often have various items stuck in them and the noose was rather small and a fair distance from the ground. If someone was trying to make a statement with it, they certainly did not put a great deal of effort into making it clearly visible and recognizable. Of course, if someone was going to send a racist message of hate on a well observed campus (there are apparently security cameras on campus), they would probably want to do so quickly so as to reduce their chances of being caught.
The police are seriously considering the possibility that the placing of the noose is a hate crime and undertaking an investigation. Many members of the community are quite concerned by the matter and it is, as noted above, now receiving national attention.
On one hand, it is good that the matter is being taken very seriously and getting national coverage. In the past, racism was often encouraged or at least tolerated in the United States. The fact that this incident is being treated as a possible crime is a sign of how the United States has progressed: racist acts are now regarded as what they truly are-morally wrong and criminal in nature. Also, the coverage shows that people take such matters as a national problem and not something to be quietly tolerated.
On the other hand, there are grounds to be concerned about how the matter is being handled. While racist actions are wrong and should be dealt with, there is the concern that the people who commit such acts are being empowered. If those responsible for the noose intended to send a message of hate or a threat, their message has been broadcast around the world on television. Also, by focusing so much attention on the matter, it becomes an important event and thus those who placed the noose have become important players in a major incident.
To use an analogy, it can be compared to being insulted in public by a stranger. While it is tempting to respond to an insult, that is no doubt what the person wants. By treating their insult as unworthy of response, the insulter is denied what they desire. Of course, a reasonable counter to this is that some insults and threats simply cannot be ignored. They might be so serious that they require a response. Or, in some cases, failing to respond will send a message of weakness and merely encourage such behavior to continue. A noose in a tree is one such insult-it cannot simply be ignored.