The "Special Protections" Fallacy

A hate crime is not a "special protection" for certain individuals and not others. Anyone can be the victim of a hate crime. What is a hate crime" then?

A hate crime is simply another class of crime, where we consider the defendant's motive in choosing his victim based on some specific characteristic, real or imagined, to be so heinous that it justifies an increased level of punishment. And the victim need not actually possess that specific characteristic so long as the defendant chooses him or her based on the intent to harm someone with that characteristic.

For example, let's say you are Jack Lemmon in Some Like it Hot, a man posing as a woman. Let's say a man in a bar remarks that he bears a specific animus against women, and has stated numerous times that the next "bitch" he sees is going to "Get what's coming to her." Whereupon, he comes across you prancing down the street in high heels, a dress and lots and lots of make-up, pretending to be "Daphne" a saxophone player in an all girl band. Whereupon our deluded criminal pulls out his gun, screams "take this you stupid fucking whore" and shoots you in the arm. After the fact our misogynistic perpetrator discovers much to his chagrin that you are not really a woman. He is deeply remorseful and apologizes profusely, stating that if he had known you were a man he never would have fired his pistol at you.

Nonetheless, he can be charged with committing a hate crime, provided that gender is one of the characteristics included in the hate crimes law on the books where you and he reside. And you, as his victim, have received no special protection, when the prosecutor decides to charge him with a hate crime. Because the hate crime law doesn't provide you, specifically, with any protections. It simply provides that someone who commits certain crimes against a person based on his animus toward individuals with certain characteristics such as gender, race, religion or sexual orientation can be charged with a "hate crime," i.e., one that bears a more severe punishment.

I'll explain later why hate crimes legislation is necessary, but for now just take away this one salient fact: Hate Crimes laws don't provide "special protections" to certain people, they simply enhance the level of punishment meted out to convicted criminals, provided the prosecutor can demonstrate these criminals acted with a very specific intent to harm their victims. Which brings me to my next point.

Hate Crimes Laws Do Not Create Ambiguity

You say that hate crimes add a layer of ambiguity to the judicial process. However, you then claim that it is valid for a court to consider the defendant's motivations in choosing to commit a crime against a gay man, for example, because he was gay, as an aggravating factor in sentencing. However, that is precisely what a hate crimes law does. Indeed, it provides that the jury in a hate crimes trial must determine whether the defendant acted with a specific intent to commit a hate crime beyond a reasonable doubt. Far from adding ambiguity, it adds a layer of clarity for both the judge and the jury. If the prosecutor can't satisfy that very high standard of proof regarding the defendant's intent, then he can't convict him or her of any hate crime.

Speaking of intent, by the way ....

Hate Crimes are Not "Thought Crimes"

A frequent argument that conservatives and other opponents of hate crimes laws make is that these laws punish someone for their thoughts. This is simply not true. They punish someone who has intentionally committed a crime with the motive to harm an individual or individuals who the defendant believes have or share a common characteristic such as race, ethnicity, gender, religious preference or sexual orientation. I've underlined the word "motive" above, because it is crucial to understand that under the law we often make distinctions on what crime to charge a defendant based upon his or her motive in committing that crime.

In other words, we consider a defendant's "perceived motivations" ( to use your phrase) all the time in determining the type of the crime with which to charge a defendant. For example, a man who shoots at a dog in his yard but kills a child in the house across the street because he is a poor shot may be tried for involuntary manslaughter, or criminally negligent homicide, rather than 1st degree murder because his intention was not to kill another human being, but to kill the dog. On the other hand, the same man who plans for weeks to murder his wife, and hires another person to commit the murder on his behalf, is generally charged with pre-medititated murder (i.e., "Murder in the 1st Degree"), even if he did not wield the gun or knife that killed her himself. Someone who commits murder in the first degree is generally subject to a more severe punishment than someone who committed involuntary manslaughter, even though in both cases someone has been killed, and we hold the killer liable for that death.

A defendant's intent matters a great deal in most criminal prosecutions. Indeed, to prove a hate crime, the prosecutor must not only prove intent to commit the crime, but also that the defendant's intent to commit that crime was specifically based upon a motive to harm people with a specific distinguishing characteristic. That's a much higher standard to meet than simply showing they intended to commit a violent crime.

In any event, motive is important in most crimes because we have made it a public policy that people who unintentionally act in ways which harm or injure others, or who do not understand that their actions could lead to such harm, generally should not be punished by the law to the same extent (if at all) as those who do intend to cause harm, should be. Which brings me to my final point.

The Justification for Hate Crimes Laws

Why have hate crimes laws? The reason is simple. As a matter of public policy. What do I mean by that? Let me explain. Almost every law originates to serve a particular public policy (or two or three), even those that have been with us for generations. We punish murderers and thieves, for example, because it was decided that society had an interest in lowering the levels of societal violence that would otherwise arise if rulers and governments did not take action to mete out justice to those who "break the peace."

By offering people a system of retributive justice for acts of violence against persons or their property, society limits the circumstances in which individuals seek vengeance or pursue vigilantism on their own against those who have harmed them or their families. Thus, such laws reduce vendettas, feuds and mob violence in pursuit of "justice" for alleged wrongs by institutionalizing the process by which we punish those who commit such offenses, and by authorizing the government to carry out that process. If people accept that their government has a system to fairly punish those that have committed crimes, they are much less likely to seek justice outside that system.

That's one example of a public policy which the criminal justice system serves. But it is far from the only one. Each law that we pass which creates a specific class of crimes has a purpose which seeks to benefit society at large.

I'll give you another example. In most states, you can be prosecuted for "felony murder," even if you had no intention that one of your co-defendants was going to kill someone, or that anyone was going to die. All you need is the intention to commit an underlying felony (let's say robbery) during the commission of which someone dies. This can include someone who suffers a heart attack when you rob a bank even if your gun or the gun of your accomplice is not loaded.

Why would we have such a law? It seems a bit unfair to charge someone with murder if they weren't the "trigger puller" so to speak. Well, there are several reasons. One reason is that society wants to limit, to the extent possible, crimes where violence against individuals could occur. If potential criminals are aware that committing armed robbery could lead to a murder charge if something "goes wrong" perhaps they will be less likely to engage in such conduct. In that instance, the public policy being served is one of deterrence.

There are other policies the felony murder rule serves, however. One is practical. The risk of being charged with "felony murder" can often be used by prosecutors to obtain one defendant's agreement to testify against another defendant. It can also be used to prevent the "finger pointing" defense. That is, if each defendant is guilty of murder for any death arising from the commission of a felony than no one can claim that they aren't guilty by pointing the finger at their co-defendants, naming them as the ones who did the killing. This makes it easier to ensure that someone is punished for the murder, rather than all going free because the prosecutor can't prove which specific person committed the act that killed the victim.

So what public policies are served by hate crimes laws? Well, I can think of several. To begin, a hate crime is not directed merely at the individual victim who suffers from the crime. The Klu Klux Klan didn't burn crosses on the lawns, or throw Molotov cocktails through the windows, of various homes merely to threaten and intimidate the specific individuals that resided there. The Klan's actions threatened and intimidated the entire community of African Americans who lived in the areas where these incidents took place. In much the same fashion, random beatings of gays, lesbians and/or trans-gendered persons, intimidate and threaten all members of the LGBT community where such violence occurs.

When communities are threatened with violence, violence for which the justice system provides no relief, how do they react to those threats and assaults? One possible response is to lash out at those who are perceived to be attacking the members of the victimized community, which in turn can lead to further violence by that group. Hate crimes, therefore, increase the chance that societal violence will escalate, often to an alarming extent.

It should come as no surprise to anyone that the United States has a history of race riots and other forms of racial violence. Violence that at times has become so extreme, it can best be described as tantamount to a "race war." One very good example of this was the case of the infamous Tulsa Massacre:

Tulsa was, in some ways, not one city but two. Practically in the shadow of downtown, there sat a community that was no less remarkable than Tulsa itself. Some whites disparagingly referred to it as "Little Africa", or worse, but it has become known in later years simply as Greenwood. In the early months of 1921, it was the home of nearly ten-thousand African American men, women, and children. [...]

For more than a few black Tulsans, the bottom line on the matter [the lynching of a man arrested for shooting a taxicab driver] had become clearer than ever. Namely, the only ones who might prevent the threatened lynching of an African American prisoner in Tulsa would be black Tulsans themselves. [...]

As Tulsa prepared to celebrate Memorial Day, May 30, 1921, something else was in the air. As notions of taking the law into their own hands began to once again circulate among some white Tulsans, across the tracks in Greenwood, there were black Tulsans who were more determined than ever that in their city, no African American would fall victim to mob violence. World War veterans and newspaper editors, common laborers and businessmen, they were just as prepared as they had been two years earlier to make certain that no black person was ever lynched in Tulsa, Oklahoma.

Precisely at this moment, in this highly charged atmosphere, that two previously unheralded Tulsans, named Dick Rowland and Sarah Page, walked out of the shadows, and onto the stage of history. [...]

What is certain, however, is that at some point on Monday, May 30, 1921, Dick Rowland entered the elevator operated by Sarah Page that was situated at the rear of the Drexel Building.82 What happened next is anyone's guess. After the riot, the most common explanation was that Dick Rowland tripped as he got onto the elevator and, as he tried to catch his fall, he grabbed onto the arm of Sarah Page, who then screamed. It also has been suggested that Rowland and Page had a lover's quarrel. ... Yet, in the days and years that followed, everyone who knew Dick Rowland agreed on one thing: that he would never have been capable of rape.

A clerk from Renberg's, a clothing store located on the first floor of the Drexel Building, however, reached the opposite conclusion. Hearing what he thought was a woman's scream, and apparently seeing Dick Rowland hurriedly flee the building, the clerk rushed to the elevator, where he found a distraught Sarah Page. Evidently deciding that the young elevator operator had been the victim of an attempted sexual assault, the clerk then summoned the police. [...]

As word of the alleged sexual assault in the Drexel Building spread, a crowd of whites began to gather on the street outside of the Tulsa County Courthouse, in whose jail Dick Rowland was being held. As people got off of work, and the news of the alleged attack reported in the Tribune became more widely dispersed across town, more and more white Tulsans, infuriated by what had supposedly taken place in the Drexel Building, began to gather outside the courthouse at Sixth and Boulder. By sunset -- which came at 7:34 p.m. that evening -- observers estimated that the crowd had grown into the hundreds. Not long afterwards, cries of "Let us have the nigger" could be heard echoing off of the walls of the massive stone courthouse. [...]

[A]t about 9:00 p.m. a group of approximately twenty-five African American men decided to cast their lot not only with an endangered fellow member of the race, but also, literally, upon the side of justice. Leaving Greenwood by automobile, they drove down to the courthouse, where the white mob had gathered. Armed with rifles and shotguns, the men got out of their automobiles, and marched to the courthouse steps. Their purpose, they announced to the no doubt stunned authorities, was to offer their services toward the defense of the jail -- an offer that was immediately declined. Assured that Dick Rowland was safe, the men then returned to their automobiles, and drove back to Greenwood.

The visit of the African American veterans had an electrifying effect, however, on the white mob, now estimated to be more than one thousand strong. Denied Rowland by Sheriff McCullough, it had been clear for some time that this was not to be an uncomplicated repetition of the Belton affair. The visit of the black veterans had not at all been foreseen. Shocked, and then outraged, some members of the mob began to go home to fetch their guns. [...]

Then it happened. As the black men were leaving the courthouse for the second time, a white man approached a tall African American World War I veteran who was carrying an army-issue revolver. "Nigger", the white man said, "What are you doing with that pistol?" "I'm going to use it if I need to," replied the black veteran. "No, you give it to me." Like hell I will." The white man tried to take the gun away from the veteran, and a shot rang out.106 America's worst race riot had begun.

What followed was one of the worst racial incidents in our nation's history. Whites in the thousands armed themselves and went on a rampage killing blacks wherever they found them. Eventually mobs of armed white vigilantes invaded the Greenwood area, and began killing men, women and children indiscriminately while setting fire to many homes and businesses there. Estimates of the black deaths range from as low as 100 to as high as 300. Many were buried in mass graves. The African American community in Greenwood was effectively destroyed.

So that is one very good public policy reason for hate crimes legislation. We like to think we have progressed as a society to the point where nothing like Greenwood could ever happen again, but the LA riots after the Rodney King verdict belie the assumptions behind that premise. Hate crimes legislation thus serves the purpose of helping to deter wide scale outbreaks of violence such as that which happened in Tulsa, over 85 years ago, by providing judicial relief for crimes which arise from prejudicial and bigoted beliefs.

But it does more than that. Hate crimes laws send a message that our society will not tolerate violence perpetrated by those who harbor bigoted beliefs about any group of people which differs from them. Hate crimes are, in effect, crimes against society. They act to intimidate vulnerable populations and help spread divisiveness and embolden further acts of violence and oppression. Such crimes of hate weaken our country, and loosen those bonds of civilization which keep us from degenerating into savage tribes bent on nothing but the slaughter and oppression of "the Other" whomever that is determined to be.

By setting hate crimes apart from your garden variety crimes of violence, society advances the goal of tolerance and acceptance of all people. Further, it advances the goal that all people are truly equal under the law by asserting that crimes committed on the basis of prejudice and hatred are particularly vile, and deserve enhanced punishment in order to balance the evil done to that fundamental principle of our jurisprudence. They also make clear that those who hate others and who act upon their group hatred to commit crimes of violence, deserve a higher level of punishment for their criminal acts, because those crimes are perpetrated not just against the intended victims, but also against society, in general.

And that's the reason I believe Hate Crimes laws are both desirable and necessary. They serve a valuable purpose in helping to deter outbreaks of mass violence, while also advancing the goal of tolerance and acceptance of all Americans regardless of our differences.

Hate Crimes Hate Crimes Legislation