Comment & Debate
Crimes against minority groups, or between different groups of people, are probably as old as humanity itself. Human history is filled with accounts of genocide, and human rights violations motivated by the race, ethnicity, gender, religion, and sexual orientation of the victim. However, efforts to enact legislation to impose heavier penalties for crimes motivated by hate are a relatively new phenomenon in a number of countries. One of the key conflicts in enacting such laws is whether or not it is appropriate to penalize someone because of their beliefs and motives. Critics of hate crimes legislation argue that it is perfectly appropriate to criminalize acts of violence, but not appropriate to add additional punishments for a person’s thoughts or speech. Another problem associated with hate crime proposals is the difficulty of determining which groups are to be “protected.” While some countries have laws adding penalties for crimes motivated by acts against ethnic or religious minorities, most countries do not have special penalties for crimes committed against people for their gender or a different sexual orientation. It is also possible to conceive of other identities based on group affiliation, such as political party, occupation, or social status. Acts of violence against the poor, for example, could also be considered a hate crime. As more groups are defined as “protected” the distinctiveness of the penalties becomes lessened. Proponents of hate crimes legislation are quick to point out, however, that the most egregious hate crimes against minority groups are often part of organized social movements or an extension of an ideology of hate that permeates entire segments of a society. Strong penalties are necessary to indicate the intensity of government or societal condemnation of such crimes.[1]
Hate crimes don’t merely victimize the individual upon which violence is inflicted. They also victimize a community or minority group that the hate crime was intended to terrorize. It limits their freedom of expression and group association, thus violating their liberties. For this reason, hate crimes have more victims than other crimes, and subsequently deserver greater punishment.
As described above, hate crimes can cause serious apprehensions between communities. These fears and the lack of state intervention to mitigate the cause of these fears has the potential to create serious damage to the fabric of society. Hate crimes are, therefore, a societal threat, as much as a threat to individual victims. Such threats to society require state responses that include not only the intent to punish the assailant, but also to correct the root cause of the social problem. One major feature of hate crime enhancements is that they assign an appropriately negative value to hate crimes; a value proportional to how society should view hate crimes. Hate crime laws, therefore, are a tool for a government to guide social values on hate in a direction we can all agree is desirable.
All forms of violent crime, whether they are murders, rapes, or beatings are an expression of hatred toward another human being. To add more punishment to a crime because it represents a particular kind of hate is to unfairly distinguish between different violent acts and trivialize those violent acts that do not appear to be motivated by prejudice hate.
It is difficult to determine externalities of harm to a community or a minority group from a particular hate crime. How can it be determined that a hate-crime causes a minority group greater fear and subsequently restricts their liberties of expression and so-forth? These psychological effects are far from tangible harm, and would prove highly difficult to statistically confirm.
While much of the case for hate crimes is based on the notion that hate crimes cause minority groups and communities to fall victim to the fear that this violence causes, it is not clear that this is any worse than the fear that results from senseless non-hate gang violence. All violence causes fear within communities. It is not clear that hate crimes cause more, and that they thus deserve greater punishment.
Hate crime laws only target hate-driven violence. There is nothing in it that prevents preachers from opposing homosexuality vehemently on the pulpit. As long as a preacher does not directly incite violence against homosexuals, they can oppose homosexuality and vocally and aggressively as they like.
The US Supreme Court ruled in R.A.V. v. City of St. Paul4 and Wisconsin v. Mitchell that hate crime laws that target “fighting words” or incitements to violence do not violate the first amendment right to free speech.
This is particularly true in regard to the expression of religious opposition to homosexuality, in which a preacher’s public statements against homosexuality might be interpreted as incitements to violence against homosexuals.
Such legislation essentially penalizes the thoughts, emotions, or motives behind an act. The act itself, if illegal, would already be worthy of punishment. Such policies set a precedent for punishing individuals who hold beliefs the government, or the majority of people do not believe. The potential exists for such precedents to later be used against the very minority interests the government seeks to protect in the present.
While some argue that it is unfair that white Christian groups are not protected in the same way as certain minority groups, this ignores the fact that white Christian groups are really not threatened categorically, and, therefore, there is simply no need for laws that would protect them.
The ultimate intent of hate crime laws is to make all citizens equally safe and protected. The end objective is not, as some opponents claim, to provide preferential treatment to certain minority groups.
Various civil rights movements around the world have extended extra securities and protections to minority groups that have been discriminated against. Hate crime laws do the same thing. Yet, some opponents maintain that “special protections” for certain minority groups is unfair or unequal. This simply flies in the face of history.
There is a danger of unjustly branding someone as bigoted and punishing them excessively, e.g. for their involvement in a bar fight where the victim coincidentally belonged to a minority group.
Victims of violence may be prone to accusing their assailant of hate-motivated crimes. Victims frequently seek revenge, and hate crime laws create a very easy avenue for doing so.
There are often subtleties in a particular case that make it important that judges have the flexibility to reach a balanced and just conclusion. Hate crimes, with certain prescribed degrees of punishment have the potential to restrict such flexibility.
A hate crime is perpetrated against a particular minority group that is determined as needing of protection. But, some individuals don’t fall so neatly into these categories, nor does the particular “hate” involved in the crime.
It is very difficult to oppose hate crime laws, as they are intuitively attractive and are highly important to minority group constituents while being more under-the-radar for the general public. Therefore, the tendency is for hate crime laws to pass with little opposing
Studies indicate that gas and lesbians are at exceptional risk of becoming the victims of hate-motivated violence. They are like many other minority groups in this regard, some of which already receive special legal protections from hate crimes, and so they should also attain legal protections against hate crimes.
Transgender people have been victims of a substantial number of hate crimes. It is, therefore, necessary to protect them with hate crime enhancements.
This is particularly true in regard to the expression of religious opposition to homosexuality, in which a preacher’s public statements against homosexuality might be interpreted as incitements to violence against homosexuals. While it is important to consider whether homosexuals need protections, it is also necessary to consider the costs of these laws to religious free speech.
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