Monday, September 17, 2007

Bigotry 101, The "Special Rights" Myth and Hate Crimes

Recently, a woman was "gay-bashed in New York." After much thought and consideration, I decided it was time to tackle the "hate crimes are special rights for gay people" myth.

In general, a hate crime occurs when someone targets a victim because of his or her membership in a certain social group.

Hate crimes laws apply to a variety of categories including, depending on the state, race, religion, gender, and sexual orientation. The current federal law includes race, color, religion, or nation origin.

The basic idea of hate crimes laws is that the same criminal conduct is punished more heavily if the criminal selects the victim because of his or her protected status. Hate crimes laws do not punish bigoted thought, but rather, they punish bigoted conduct. Oftentimes, however, bigoted thought is reflected in bigoted speech that accompanies an attack (eg- calling a lesbian a "dyke" while attacking her).

It would be refreshing to see debates surrounding hate crimes laws to revolve more around criminal punishment policy and less around groups irrelevantly and insecurely speaking about some groups getting "special rights," rights that others supposedly do not have. For, hate crimes laws confer no rights, special or "un-special," on someone, but rather confer greater punishments on criminals based on why they committed the crime. The words "protected status" are problematic in themselves- for these words imply that hate crimes laws place an invisible magical shield around so-called "protected" groups. And therefore, some groups- the "unprotected" ones- receive no such protection.

No such shield exists, of course. For if it did, hate crimes wouldn't happen.

In addition, hate crimes laws are not applicable only to minority racial, ethnic, and sexual groups. Generally, they would also apply to someone who attacked a white person on the basis of race just as they would apply to someone who attacked a black person on the basis of race.

Using the "special rights" myth as an argument is a distraction from what hate crimes laws are actually about.

Below, I'm quoting the US Supreme Court (Justice Rehnquist, nonetheless!) in WISCONSIN v. MITCHELL, 508 U.S. 476 (1993) not to appeal to its authority, but because it provides a good summary of criminal punishment principles surrounding hate crimes laws that should be required reading for anyone involved in the "debate." (For smoother reading, I have deleted internal citations to other cases. Follow the link to the case if you are interested).

"Traditionally, sentencing judges have considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant. The defendant's motive for committing the offense is one important factor."

"Moreover, the [hate crimes law here] singles out for [greater punishment] bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm. For example, according to the State and its amici, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest. The 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. As Blackstone said long ago, "it is but reasonable that, among crimes of different natures, those should be most severely punished which are the most destructive of the public safety and happiness." [emphasis mine]

Let's think about these principles in light of the recent gay-bashing incident from above. In this case, a woman who was dancing with another woman at a bar, was thrown out of the bar and then subsequently attacked by a group of mostly men. While attacking her, they screamed "Fucking dykes! Fucking lesbians!" indicating that the motive of their attack was based on their hatred or, to put it mildly, their "bias" of lesbians.

The attackers in this case would be arrested for assault and battery no matter their motivation for the crime. With the application of a hate crimes law, however, they would face a more severe penalty for their actions. The reason for this stiffer penalty is to send a message to the LGBT community that those who attack gay people just because they are gay are not given a mere slap on the wrist, to make these attackers think twice before committing another such crime, and hopefully to rehabilitate their actions (if not their hateful thinking).

When criminal policy is put into practice, it should be based on more than just theory. These theories of messaging and retribution, of course, should be backed by statistics. The Supreme Court when making its decision considered statistics and evidence in the numerous amici curiae briefs filed in this case.Heres's an example of one.

Criminal policy applications should also be fair. They aren't always, in reality, but they should strive to be.

Is it "fair" for a court to punish hate crime attackers more severely than if the criminals randomly attacked someone?

As the Traditional Values Coalition says, "The murder of a father should not be treated as less valuable than if a homosexual or drag queen is killed."

Let's ignore the fact that many "homosexuals" are, in fact, fathers and that the use of "drag queen" is meant as a distracting pejorative, and let's instead talk about how punishing a criminal isn't about placing a value on the victim. Do we really believe that a victim's life is measured solely by the sentence a judge or law imposes on the perpetrator?

Criminal punishment is about (a) deterring that criminal and others criminals from committing similar crimes in the future, (b) rehabilitating the criminal (ha, in theory at least) (c) and repaying the "debt" to society that the criminal caused when he or she committed the crime.

Any attack or murder is horrible, and families of victims are rightfully horrified by them.

But, if an attack on a gay (or straight) person because that person is gay (or straight), on the whole promotes greater community unrest, produces greater societal harm, and is more destructive of community and public happiness than a non-biased-motivated murder is, then the murderer should be more severely punished than the perpetrator of a random attack.

Imposing more severe punishment on those who commit hate crimes has nothing to do with giving gay people "special rights" and everything to do with living in a civil society with one another.

Some argue that hate crimes laws take away our "freedoms," particularly our freedom of speech. Such people fear that they will no longer be able to say things like "homosexuality is wrong" if hate crimes laws are enacted. No. You'll still be able to say whatever you want, you just can't kick someone's ass on the sole basis of your belief that homosexuality is wrong. No more than someone could beat you up for believing that heterosexuality is wrong.

Groups like the Traditional Values Coalition also warn that hate crimes laws violate "freedom of religion." No, they don't. Unless your "religion" is the Church of Let's-Go-Kick-Us-Some-Faggy-Ass you have nothing to worry about.

I'd like to end on this final note:

The Wisconsin v. Mitchell Supreme Court case discussed above involved a white person who was attacked by a group of black people. That the Supreme Court chose a case with such a fact situation is interesting (considering our nation's history of bias-motivated violence against black people) and was probably intentional. I wonder if the Court purposely chose a case to demonstrate that minorities too would be subject to the harsher penalties under hate crime legislation.

The uneducated view is that only minorities will benefit from and only white people (and heterosexuals) are harmed by hate crimes laws. That this important precedent is taken from a fact situation where the hate crimes law is used to impose a more severe penalty on a black person, I think, was the way the court bought "approval" for this opinion. It was a way to say (a) we aren't a renegade "activist" court and (b) "Helloooo, white people can be victims of race-based hate crimes just as minority groups can."

That's my theory, anyway. If anyone knows the history of why the Court granted cert to this particular factual scenario, please share ;-)

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