Parrying the Blade of Hate
Because hate crime laws express society's moral sense that hate crimes, and the bigotry underlying them, are abhorrent, such laws are an essential weapon in society's war against prejudice.
Hate crime laws are consistent with the principle in American law that the punishment for an offense should be proportional to the injury resulting from the crime. Hate crimes are more harmful than similar nonbias crimes in several ways:
Hate crime laws have long been held constitutional. In the 1993 case of Wisconsin v. Mitchell, a conservative Supreme Court, noting that bias-motivated crimes were more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims and incite community unrest, expressly declared that a state's "desire to redress these perceived harms provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders' beliefs or biases."
- Victims of hate crimes suffer greater psychological injury than do victims of nonbias crimes. In a recent study of 2,259 lesbians and gay men, Gregory Herek of the University of California, Davis, and his co-researchers found that, compared with other recent crime victims, lesbian and gay hate-crime survivors manifested significantly more symptoms of depression, anger, anxiety, and post-traumatic stress. An earlier study of bias-related crime in the workplace, not limited to anti-gay violence, yielded similar results.
- Hate crimes create a sense of victimization among the members of the target community, that is, the community sharing the trait on the basis of which the victim was attacked, and thereby harm that community. According to Jack McDevitt, a criminologist at Northeastern University, hate crimes are intended to send a message to members of the targeted group that they are unwelcome.
- Hate crimes injure society as a whole by perpetuating long-standing intergroup animosities and the resulting societal divisions. A recent doctoral dissertation studying the effects of hate crimes on Asian-Americans found that the victims struggled with trusting people not of Asian ancestry and reported heightened suspicions of racism in their social interactions. As the Anti-Defamation League, a Jewish human rights organizations, puts it, hate crimes "damage the fabric of our society and fragment communities."
It is important to note that hate crime laws do not criminalize conduct that would otherwise be lawful. Rather, these laws apply to existing crimes and provide an enhanced penalty for offenses motivated by bias toward any of the personal characteristics of the victim--such as race, religion, or sexual orientation--specified in the law.
Motive is recognized in other contexts as a factor determining the sentence for a crime, or even whether a crime has been committed in the first place. A murder's having been committed for financial gain, for example, is often considered an aggravating factor in determining whether the death penalty is warranted. And witness intimidation statutes penalize assaults that were committed for the purpose of preventing a witness from testifying in court.
The simplistic rhetoric that "all crimes are hate crimes" is mere sophistry. Crimes of greed or passion do not demonstrate the antipathy for an entire segment of society evident in hate crimes.
Hate crime laws do not create "special classes of victims." These laws apply to offenses committed against members of the majority as well as against minority group members. The FBI's 1999 hate crimes report documents nearly 800 anti-white incidents, as well as 84 anti-Christian crimes and 14 anti-heterosexual incidents.
Laws augmenting penalties when a victim is a member of a particular class are not novel. Many states have "cop-killer" laws, providing for enhanced penalties when a police officer is murdered. Other statutes enhance the penalties for assaults on the elderly, a particularly vulnerable population.
But most fundamentally, it is the criminal's motive, not the victim's status, that triggers the application of hate crime laws. As the FBI's Hate Crime Date Collection Guidelines state, "The mere fact that an offender is biased ... does not mean that a hate crime was involved. Rather, the offender's criminal act must have been motivated, in whole or in part, by his/her bias."
When Eric Running gunned down his former girlfriend, Jaqueline Anderson, and her female lover in a northeast Portland karaoke bar two years ago, there was no hate crime, because Running was not motivated by anti-gay bias. He was just another spurned lover whose possessiveness drove him to homicide.
On the other hand, an offense motivated by prejudice will be a hate crime regardless of whether the victim actually was a member of the class despised by the perpetrator. Police charged Dayton, Ohio man Layrue Mitchell with a "mistaken" anti-homosexual hate crime after he allegedly assaulted a short-haired woman and her husband, thinking they were a gay male couple. And Texas police are investigating the savage beating of high school student Cody Haines--which left blood clots on his brain--as a hate crime because the assailants apparently believed that Cody was gay. After all, he was in the school choir.
Hate crime law opponents frequently insist that these laws punish mere speech. "Former lesbian" Yvette Schneider claims that "If I offer a homosexual a way out and refer to homosexuality as a sin, I could be charged with a hate crime." Jerry Falwell fears that "pro-homosexual legislation" will "eventually result in the criminalization of Christianity." And Robert Knight of the Family Research Council wonders whether "championing the traditional family" could soon be a crime.
But a hate crime act encompassing sexual orientation has been in force in California since 1987, and California jails are not overflowing with preachers convicted of speech crimes.
In any event, we know that the Constitution does not permit the criminalization of mere speech. In the 1992 case of R.A.V. v. St. Paul, the Supreme Court held that a man could not be prosecuted under a city ordinance for allegedly burning a cross on a black family's lawn. The court held the ordinance unconstitutional in imposing special prohibitions on speakers expressing disfavored views.
A hate-based motive is not necessarily difficult to prove. Sometimes murderers have simply admitted their intent. Take twenty-three-year-old British engineer David Copeland, for example, who, after planting a bomb in a crowded London gay bar, told police he thought gay men were "perverted degenerates" who should be put to death.
Another common scenario is where the defendant uses slurs during the attack in a manner demonstrating a bias motivation. For instance, in Louisiana, one Frank Palmero was convicted of a hate crime based on arson after he threw gasoline on a disabled vehicle occupied by a three-year-old boy and attempted to ignite the fuel. This followed Palmero's altercation with several African-American men, including the boy's father, during which he constantly employed the N-word and other epithets.
In another case, an Illinois youth's throwing a knife at an Orthodox Jewish boy was determined to be a hate crime because the youth had just yelled "F*** you Jew, get out of here Jew, I am going to kill you Jew, f*** you Jew."
And while conservative Christians claim that hate crimes are "rare and getting rarer," in 1999 nearly 8,000 such offenses were reported to the FBI, including 17 murders, up from 13 the prior year.
Conservatives' real objection to hate crime laws, of course, is that such laws acknowledge the existence of, and penalize the criminal consequences of, prejudice against gay people. When Texas was considering the adoption of an effective hate crime law, Governor Bush's office contacted members of James Byrd's family and asked if they would consent to the removal of sexual orientation from the proposed legislation, according to Louvon Harris, Byrd's sister. (The family refused.) And in Indiana, state Rep. Jerry Denbo, referring to homosexuals, explained his vote against a proposed hate crime act by declaring "I hate seeing them as a minority."
Our nation has a long and tragic history of racial, religious, and other status-directed violence, beginning with the dispossession of Native Americans and the introduction of slavery, continuing with the violent persecutions of Mormons and Catholics in the nineteenth century, and enduring today in the horrors inflicted by white supremacists and homophobic thugs. It is our duty to take all reasonable measures to eliminate this savagery.
1. For a general discussion of hate crime laws, see Frederick Lawrence, Punishing Hate: Bias crimes under American Law, Harvard Univ. Press, 1999. For a more skeptical view, see James Jacobs and Kimberly Potter, Hate Crimes: Criminal Law and Identity Politics, Oxford University Press, 1998.
2. Gregory Herek, J. Roy Gillis, and Jeanine Cogan, Psychological Sequelae of Hate-Crime Victimization Among Lesbian, Gay, and Bisexual Adults, Journal of Consulting and Clinical Psychology, 67(6), pp. 945-951.
3. Joan Weiss, et al., Ethnoviolence at Work, The Journal of Intergroup Relations, vol. 18, pp. 28-29 (Winter 1991-92).
4. See American Psychological Association, "Hate Crimes Today: An Age-Old Foe In Modern Dress."
5. Brian Owyoung; The Psychological Effects and Treatment of Hate Crime Victimization on Chinese Americans and Asian Americans Residing in Castro Valley, California; California School of Professional Psychology, 1998.
6. See the ADL report.
7. 508 U.S. 476.
8. See FBI report, Table 2.37.
9. See FBI report, p. 4.
10. Michelle Roberts, "Murderer of gay couple gets death sentence," The Oregonian, July 29, 2000 (Portland, OR).
11. Andrew Chow, "Police call assault on couple a hate crime," Dayton Daily News, July 19, 2000.
12. "Arrest made in hate crime against N. Texas boy," MSNBC, October 27, 2000.
13. Quoted in Dolezal, Joshua, "'Hate crime' legislation resurfaces," Christianity Today vol. 43, n.6 (May 24, 1999). At the time, Schneider's last name was Cantu.
14. "URGENT CALL TO ACTION FOR ALL FALWELL CONFIDENTIAL FRIENDS!" circulated on the Internet on Sept. 12, 2000.
15. Robert Knight, "Activists exploiting tragedy, USA Today, October 14, 1998 (letter to the editor).
16. 505 U.S. 377.
17. "Suspect said sought a race war," Associated Press, June 5, 2000.
18. State v. Palmero, 765 So2d 1139 (La.App. 4th Cir. 2000).
19. In re Vladimir P., 283 Ill.App.3d 1068, 670 N.E.2d 839, 219 Ill.Dec. 161 (1996).
20. "Hate crimes rare and getting rarer," Citizen Magazine, March, 1999. A publication of Focus on the Family in Colorado Springs, CO.
8,000 hate crimes, including 17 murders, reported to the FBI in 1999, see FBI report.
Thirteen murders in 1998, see FBI report.
21. Quoted in Jake Tapper, "Bush Angers Slain Man's Family," October 16, 2000, found at Salon.com.
22. Stuart A. Hirsch, "Sexual orientation language dooms bias bill. Some lawmakers said they voted against crime measure because it granted protected status to homosexuals," Indianapolis Star, March 11, 1999.