liberal opposition to hate crime law
Last year an activist approached me on the st
reet and asked if I would sign something to advocate for the inclusion of attacks based on gender identity or sexual orientation as a hate crime. What this activist was asking for became a reality a little over a year ago with the Federal Hate Crime Act of 2009. I, however, was not one of the people who helped it get there; I refused to pledge my support that day because I am opposed to all hate crime law. It was a difficult decision because, if there are going to be hate crime laws, I want all groups that suffer from discrimination and who are singled out in acts of hate-based violence to be included, but my opposition to hate crime law in general prevented me.
Though this stand is likely not popular among my peers, I think it is an issue that is important to address and to consider seriously. Though I will never dedicate my energy toward ending hate crime law, I do want to dedicate some time to questioning the basis of the laws and to challenge others to consider if these laws are actually protective of citizens. I fundamentally disagree with the asinine bigoted arguments that are often used against hate crime laws (click here for an example) and I worry that I come to the same conclusions those people do, but nonetheless I have, even if for very different reasons.
My fundamental problem with hate crime laws is that they are punishing an ideology as well as a crime. In the case of crimes based on bias, I find the ideologies behind those crimes classified as hate-crime to be abhorrent. Even so, hate crime laws set a precedent that allows those in power to determine which ideas are bad and which ones are good.
Please don’t misunderstand. I am not belittling the very real, extremely serious fact that there are bias motivated crimes. In 2009 there were 8,336 reported hate-crimes. According to FBI statistics,
An analysis of data for victims of single-bias hate crime incidents showed that:
- 48.8 percent of the victims were targeted because of the offender’s bias against a race.
- 18.9 percent were victimized because of a bias against a religious belief.
- 17.8 percent were targeted because of a bias against a particular sexual orientation.
- 13.3 percent were victimized because of a bias against an ethnicity/national origin.
- 1.2 percent were targeted because of a bias against a disability.
I am guessing that this is a gross underestimate, as many jurisdictions are likely to under-report, many people might not know they are targeted because their assailants were biased against them for some reason, and the populations that are often targeted may not receive an adequate response from authorities when they report a crime and may be more likely to be distrustful of authorities who may also discriminate against them.
I am not opposed to the very logical idea that hate-based crimes suck and the horrible human beings who assault others for reasons of bias deserve to be punished. What I am opposed to is handing those in power the right to legislate what ideas are and are not appropriate. As our federal government increases repression 
against those who have ideas that they don’t like, I think we need to be vigilant to understand the root of the problems that have allowed this oppression to function legally and virtually unchallenged.
I see a stark parallel between hate crime law and other repressive legislation; in particular, the Animal Enterprise Terrorist Act (AETA). If you don’t know about AETA, there is some good info here, and here. One of the things the law does is ratchet up sentencing guidelines for certain crimes if the perpetrator is doing it based on a philosophy of animal rights. In fact, it allows people to be tried for “animal enterprise terrorism” for trespassing and “property damage.” A brick through a McDonald’s window would typically come with a fine and some community service. However, with AETA in place, it could mean serious jail time for animal activists but not for the vandal who does it with no ideological motivation.
I would like to believe that politicians and legislators and even the general populous has the ability to determine what is and is not moral. However, as much as I want to believe it, I don’t. I think that most people and most institutions, are primarily concerned with protecting and reinforcing their own privilege. When it becomes acceptable to punish thoughts and ideas, the speech of dissenters will always be stifled. In some cases this seems like a good thing. I certainly don’t feel safe around anti-Semites or misogynists, and if I was in a class of people that is systematically the target of violence, I am sure this would be intensified. But I also know that the status quo is dependent on no one dissenting and big change only happens because people bother to stand up and speak out. When we give the government the right to punish certain ideologies we set a precedent that not only allows a different system of punishment for bigots but, at the same time, for those who push for social change.
The proof that the government is bad at deciding right and wrong and establishing laws around morality is evident. That it took until 2009 for the federal government to extend hate crime legislation to include gender and sexuality based crimes is proof that hate crime law itself isn’t objective and is based on the preferences of those in power. Under a homophobic Bush administration anti-gay hate crimes were not acknowledged, but under a slightly less homophobic Obama administration it was eventually included. Government’s bias in judging right from wrong is also evident in laws that target the environmental and animal rights movements.
The bottom line is that we cannot accept an unfair system of law when it privileges our own ideologies, but reject it when it places us in a position of disadvantage. There is a reason the judicial system in this country is painfully (and admittedly problematically) rigid—people will not always act smartly and with good intentions. There need to be some safeguards against assholes. And a good number of those who dictate policy in this country are assholes.
Beating, raping, murdering, harassing, abusing, and many other forms of violence are often hate crimes, and they are always super bad, regardless of why they are done. We should always punish them harshly. There are also some crimes that should not be punished harshly, but the imperative to punish thoughts as well as actions allow them to be.
Releasing mink from a fur farm should just not be punished as a “terrorist” offense. There is rare occasion to give anyone jail time for trespassing or loitering. However, there are laws that dictate if you do this with certain political or social aims you will be punished more harshly than normal. AETA can make blocking the entrance to a meat packing plant an act of domestic terrorism, but only if you are an animal rights activist. This is unjustifiably biased, and shows the liberty with which those in power will use their ability to punish people for their thoughts.
We need to punish people for what they do, not why they do it. Under this logic we will always punish violent offenses harshly. This means we will punish hate crimes harshly. In my dream world, we would prosecute a random murder of someone on the street, the murder of someone because of their race or religion, and the murder of an innocent animal for food the same. Raping your girlfriend, or a transvestite or a dairy cow is all violent and should get you a hefty jail sentence. Why do we say that it only get a hefty sentence if you get fancy enough law team together to prove it was a biased-based crime? We should also not punish someone who releases minks to jail time or classify him or her as a “domestic terrorist”. The crime just isn’t worthy of the punishment.
Hate crime laws seem good on the surface, but they bolster a precedent for the persecution and prosecution of ideas. I don’t like the ideas of bigots and I despise the violence that bigotry can lead to, but I don’t trust those in power not to be bigots themselves. That is why I don’t want to set the precedent that they can choose which ideas are valid and which need to be repressed.
Vegina 
Glad you wrote this, Carol. Taking this position is often unpopular, politically, but it’s one every movement needs to be discussing and addressing.
That’s really interesting. I’m going to give it a good long think. I find myself agreeing with you. I have always felt that the punishable crime is in the act, not the motivation–so “hate crimes” as a special classification never made sense to me. Someone argued to me once that the point is to show people that these ideas are not socially acceptable, so it would reduce certain kinds of discrimination. I think that proves your point!
I agree 100% Carol.
I see no parallel between victims of hate crimes and animal enterprises. There is harsher sentencing for “cop killers,” which sets a precedent that equal crimes are not treated equally by the law.
A good and thought provoking post, thank you.
I mostly agree with this but I do have one problem with the proposition that acts should be judged completely independently of their motivations.
What about self-defense? If I am motivated to kill someone because they pose a real and present threat of bodily harm to myself or someone else, should this not be considered? And, if it should be considered, where should we draw the line between considering that type of motivation and considering hate-based motivations for violence?
*(this is not a rhetorical question, I really want to know what you think)
I think this is a great point to think about. If I say that we should punish everyone the same, regardless of intent, then is this just an argument for rational objectivism without any room for relational understandings of the world? I see how to interpret my argument in that way but I think a more positive way we can apply my argument allows flexibility while still refusing to accept that the government has a right to decide what thoughts are to be sanctioned and which are to be accepted.
In the case of self-defense or the defense of another in harm’s way there is not ideological impetus for the action. It is REaction to an action someone else took, so in this case leniency is necessary. I would actually like these “exceptions” to be extended fairly as well. I think that if you were to break into a place where US citizens were being kept and experimented on, you would be charged with nothing. Why does this not extend to animal liberationists who rescue animals who will face imminent suffering and be murdered? No, under AETA, rather than protecting these brave individuals who are REacting to acts of violence , torture and murder (a good justification to have a sentence reduced or expunged), they are tried as perpetrators and they are tried more harshly because of their ideas.
I agree with you and all your posts here are excellent.
Self defense should not be a crime. But determining what is self defense gets us to the murky areas. Is it self defense when after terrorizing a victim the perp is running away? There are DV victims who kill as a form of prior restraint, as in I killed him because i knew he would kill me. But this is why we have degrees in the law — first, second, third degree and that is where we consider the circumstances which is hard to distinguish from motivation.
My point is that hate should not be an enhancer because we (society) were not interventionist when the hate was being generated. We did not save the child so now we should not penalize more because he hates.