The United States senate recently passed a piece of legislation that would make assaulting a person because of his/her sexual orientation or gender identity a federal crime. There are already other hate crime laws, such as those relating to race.
Some conservatives are concerned that the law will infringe on their freedom of speech. After all, some conservative groups are strongly opposed to homosexuality, same-sex marriage and other such issues. Their concern is that their criticism of such things could be taken as hate speech and perhaps even as an assault under this new legislation. It has been claimed, however, that the legislation only covers violent actions rather than speech. However, it must be noted that the application of any law is subject to interpretation and hence it is possible that the legislation (or similar laws) could be taken to cover what is regarded as hateful speech. Obviously, the concern this raises is that such laws can serve to add to the erosion of the freedom of expression and eventually lead to harmful restrictions in such matters. However, let it be assumed that the legislation will apply only to violent actions.
I suspect that the law is intended, in part, to send a message to those who will be protected by the legislation and those who it is intended to protect against. However, I do have concerns about using such a means to send a message.
However, my main concern is a moral one, namely that the legislation seems based on the assumption that an assault on someone because of his/her sexual orientation or gender identity is somehow worse or of greater concern than an assault on someone for any other (non-hate) reason.
For example, let us suppose that I am running with a friend who is openly gay and cross-dresses. As we run along someone jumps out yells “take that, skinny!” and cuts me on the arm with a knife. Realizing that the person in the skort (a running skirt) is a guy, the mugger yells “fag!” as he takes a slash at him, also cutting him on the arm. After we subdue the mugger and tie him up with my friend’s tasteful pink running scarf, the police haul him off. Because I’m a straight guy wearing shorts, my cut is a matter of assault and not a federal crime. But, since my gay friend was wearing a skort and the mugger yelled “fag”, the attack on him is now a federal crime-even though his injury is the same as mine. As such, it would seem to be unjust for the mugger to be regarded as having done something worse to my friend than to me.
Of course, it could be replied that my friend suffered more harm because the mugger hurt his feelings as well. But, calling me “skinny” might have hurt my feelings as much as being called “fag” hurt my friend. Also, I am sure that the slashing would hurt much more than the name calling.
It could be added that a while the individual injury was the same for the both of us, the attack on me was just an attack on me as an individual. In contrast, the attack on my friend was somehow an attack on a whole class of people. Thus, I would just be a person being stabbed while my friend would be a veritable Platonic form of gayness and cross-dressingness being stabbed. As such, the crime would be much worse-it would be an attack against many and not just against one.
It might be pointed out that every person is part of many classes and, as such, the same sort of logic would apply. If someone attacks me, they would be thus attacking all men, all people of French, English and Mohawk descent, all runners, all philosophers, all gamers, all people who own huskies, all human beings and so on. On this logic, the severity of the crime would be based on the number (and perhaps the importance )of groups the person belongs to, which seems rather odd.
In reply, someone might note that it is not so much group membership that makes the attack worse, it is the intent of the person making the attack. After all, the legislation is based on the intent-it is assaulting a person because of his/her orientation/gender identity that makes it a federal crime.
Going back to the example, if the person had attacked us for any non-hate reason (as defined by the relevant hate laws) then the crime would not be a federal crime. For example, if we were attacked because he wanted money, was angry at the world, hated runners or hated fit people, then it would not have been a federal crime. But, as soon as the attacker said “fag”, then that would seem to make it a federal crime because it would be possible to ascribe to him a motivation of the right sort of hate.
Intent is, of course, a relevant factor. If, for example, we were attacked because the person mistook us for two people that had just killed his wife, then that would be a mitigating factor. However, if the person has a wrongful intent to inflict harm, then the differences between being motivated by greed, general rage, hatred of runners or hatred of homosexuals seem to be largely irrelevant. What matters the most is the actual harm done and not the distinctions between such wrongful motivations. As such, treating such assaults as federal crimes would add an unjustified level of possible punishment.
Of course, a case can be made as to why such intentions make a crime worse-and I invite someone to make that case.
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We should all be equally protected by the law, it’s that simple.
I consider things like to this to be a form of social engineering and they make racism worse.
“Some people are more equal than others.”
We may agree here.
We could rewrite hate-crime legislation to include male and female whites and heterosexuals. Any individual who is attacked or killed by another human being simply because he/she is white or hetrosexual or female should be punished to the same degree as anyone who attack or kills blacks, homosexuals, Hispanics, etc. simply for *their* “otherness”.
That should go a some way toward solving the “equal protection under the law” issue.
Also: Intent–like causality–is one of the most difficult things to prove, even in a legal sense.
True. While an intent to harm can be shown fairly easily in many cases (for example, if someone slashes at me with a knife, they are not intending to butter their bread), showing that a crime was motivated by gender/orientation can be difficult in some cases.
Some might be tempted to assume that any crime directed at someone who is black, gay, Hispanic or whatever must be a hate crime. However, this is not the case.
Intent is indeed difficult to prove. Should we, therefore, refrain from making any criminal judgments that involve determining intent?
Let’s say a person shoots at another person. We don’t know whether he intended to kill the person or not. We do know, for a fact, that the bullet entered the victim’s chest and exited out the back but damaged no vital organs. The perpetrator claims that, yes, he was angry at the victim for [name the reasons, blah,blah,blah], but that he only wanted to hurt the victim (“Make him pay”).
He admits that he had had a *bit* too much to drink and claims he was aiming for the victim’s shoulder. Did events transpire as he describes them, or did he intend to kill his victim and fail?
I’m not willing to give up attempting to make that distinction between intent or lack of it just because it’s a difficult process– or just because it might be used, as in the case of hate crime legislation, to incarcerate some Jew-n*r- homosexual/baiting-beating-killing asshole.
Application of the law can be tricky. Let’s say the attacker thought your friend was gay, but your friend was not, in fact, gay. Would a hate crime have been committed?
Excellent question. It would depend on the wording of the law and the interpretation of the court.
A law that is based on intent would seem to allow for prosecution even if someone merely thought the person where in that category. For example, if someone thought the person was gay because he was wearing a skort and attacked him, but he is straight and wearing it for a joke (which was done at a race last month in Tallahassee, then he had the intent to assault someone based on a hatred of gays. So, it would seem to be a hate crime. But, since the person is not gay, then it would seem to not be a “real” hate crime, because the person was hating in error. I can see a legal argument going either way.
Sorry, but I think this new law crossed the line. Thought crime would be a better description.
Not to mention that a crime is a crime, and heinous irrespective of race, gender etc. We should all be equal before the law,and not have any special rights that make us more harmed or any less insulted.