So the Biscuit talked me into taking her and her friends down to a local neighborhood on Saturday for to go a-thrift store shopping, that being the favored sport of the 15-something set. Hillcrest, as you may or may not know, is the local nexus of alternative lifestyle-type people. For what that’s worth.
Not, of course, that there’s anything wrong with that.
Saturday, as it turned out, was also Gay Pride Day in Hillcrest, a truth that your humble scribe had been entirely ignorant of, and which had been revealed to him only once he was well and truly embarked on the ride south with herself and the retinue, with no chance of turning back, that being considered as tedious as go o’er. I considered the possibility that the Biscuit had hoped that this psychically fraught and much-delayed news might draw a reaction of a kind from your narrator.
If so, in this at least, herself was disappointed.
I lived in Key West for three years back when the alternative feast was at its best, and there’s very little left on the big blue blob that actually surprises me anymore. In any case, each of us must find beauty where we can, and the more love there is in the world, surely the better it is for all of us.
I can say all that and still manage frown at those who think the military is a place to bang drums in the celebration of “otherness.” People of all sorts have served in every capacity ever since the first Cro Magnon admired a particularly well-shaped rock while coveting his neighbor’s ass, which didn’t quite come out as I had intended it, but there it is. In any case, the service is greatly about self-abnegation in the service of the higher. We’re not much into the idea of “conditional service,” otherwise known as “I’d serve you better if only I could talk about who I’m sleeping with,” or whatever is more important to the service person than the service itself. We’ve got lots to do, and what we’ve been given to do it with, and not much time, frankly, for sniffy attitudes from condescending elites.
Whilst down at Hillcrest, I stopped off at a local with the Hobbit while the teenagers sorted through cast off clothes from other decades. Was mildy annoyed not by the alternative folks, but rather a blotto-at-four-in-the-afternoon straight co-ed who breathingly demanded to talk about my concept of God and how it might interact with feminism, and whether the two were compatible. There aren’t that many people in the world I’m comfortable really talking about faith with, and suffice it to say that drunken college students are so far down the list as to escape ordinary scrutiny.
The Biscuit had found suitable accoutrements for purchase, and your scribe was summoned for to do the deed. The clerks were mildly appreciative – not to say envious – of the service thus rendered by the party of the second part on behalf of the party of the first part, and I had fleeting hopes of some expression of paternal gratitude. These quickly came and yet more quickly went, and then it was time to go.
Heard on the news today there had been some loathesome bashing incidents, and all the police and politicians were rightly up in arms. I do have to admit however, that I’ve often struggled with the idea of “hate crimes” – the idea that what a person might think about the class of person he’s assaulting somehow makes the crime more damnable, the punishment more severe. We can disagree vehemently and openly with racism, or sexism, or any class of bigotry, but until we criminalize thought, these cannot in themselves be crimes. Not, at least, outside academia. If we choose to aggravate a crime with our fallible divinations of motive, are we not in some way criminalizing thought at this point? How far are we then from Orwellian wrong-think?
I mean, if a bigot had an untoward thought towards, say: Irish-American fighter pilots, but did nothing about it, no one would argue that a crime had been committed. And if some other random idiot bashes one of those fighter pilots for no particular reason – is the hurt any the less because it was not committed in the spirit of class hatred? Does the crime exist in throwing a punch, or in the face that it intersects? How do we peer into a criminal’s heart and try to determine some higher level of culpability when the two combine? If the first is not a crime until the second is committed, how then can the first aggravate the worst? Put another way, is my theoretical fighter pilot any less aggrieved because his assailant had no obvious motive?
Is the hurt really any greater because the criminal’s motive is hatred rather than poverty or even sociopathy? How do we weigh to which extent the crime is generated by class antithapy, and to what extent rationalized by it?
I dunno.
Not sure where to end this post, I offer up a link from occassional reader (and fellow Sandy Eggan) Cin, who sacrificed her search engine time in case any of the other ladies got on my case again about inequal deference to their manifest desires.
The most alternative lifestyle-est link ever.
Not that there’s anything wrong with that.
Well…that was interesting. Link and all. a;most like a scene out of “Top Gun!” I hope you got a good price for the “suitable accoutrements”!
Sign me a fellow San De Eggan…….
There was a theory, which Robert Heinlein expounded upon, about six genders; a range from hetero to gay. It seems to me that the clearly hetero, a school you seem to belong to, are the most tolerant of gays. In this school, which I like to think I am in, gay has to be something you are born to. Why would anybody choose to be gay? How could you choose to be gay when women are so darned cute? How can you not feel sorry for the homosexual? Did you see the legs on that girl? (Oops, sorry.)
I see the gay-basher as being almost gay himself; hating those impulses in himself and lashing out against others because of his internal fears.
Re: hate crimes
As an ex-cop (just wasn’t my idiom), I share your hesitance to grant “uber-victim” status based on what the suspect may or may not be thinking at the time of the crime. It is, however, just a stone’s throw (logically) from long-established and accepted “hierarchies of victimhood”. Example: In Ohio, ordinary fisticuffs would result in a charge of assault – a misdemeanor of the first degree. If said blows are exchanged with a police officer, jailer, schoolteacher, or any of several other “special victims”, the offense rises to a felony of the fifth degree (the lowest felony). Use the same force in the commission of a theft offense and you’re up to an F2 (robbery). So it seems the more reason you have to fight, the more severe the punishment! (Assuming it’s reasonable to fight the police to avoid arrest, or to fight to take someone else’s property – it’s just that neither are permissible or wise). So while we agree that victimhood should not be predicated on one’s race, creed, class or occupation (or anything else), I think it’s way to late to change it. The problem, IMHO, is politicians who think they can correct every social ill if they can just tailor the laws cleverly enough.
Why thank you kindly sir for the lovely link-age to go with my morning coffee here in the hot and oh so steamy Northeast…
Hate crimes – never really looked at it from the point of view you express Cap’n. Race, religion or sexual orientation as a cause to commit violence just always seemed so clearly a hate crime to me. But your theoretical fighter pilot scenario does make me ponder the issue more than I would have previously.
But I guess being a fighter pilot is a choice that a person makes; so is religion for that matter. But being black or gay, for example, are not choices people can make, it’s a consequence of their birth. So doesn’t it make sense to classify crimes, against people who can’t make an alternate choice, as slightly more offensive than those who can?
And what about religious persecution? You can choose your religion, but does that mean you open yourself up willingly to potential violence because of what religion in which you choose to participate?
Well, let’s see….There are the PC nazis, tobacco nazis, alcohol nazis, gun nazis and not-to-mention, all those religious nazis. The thought police have been among us for some time. Perhaps a human condition?
I’m from the opposite end of the political and religious spectrum as you, but I read your blog because you write with style and humor, and more often than not, humanity. I think the hate crime thing is something that has to be looked at, unfortunately, after the fact. In your example, the person doing the fist throwing is not the person hating. But in say Matthew Shepherd’s example (if you don’t know, you’d better look it up) he was kidnapped, tortured, and left for dead by the people (college students now each service two life sentences) doing the hating. It’s pretty hard to say that was a random act of violence with no specific basis. It wouldn’t have happened if he wasn’t gay (and maybe that’s a criteria to use). They went to a known gay bar, picked him up, and took him out into the Wyoming nothingness, tied him to a fence, and did what they did. Maybe it just distills down to “motive”, but that seems to be something the cops are big on. I don’t know about legislating special status, I can’t pass a judgement on the military’s perspective, but the actual act of a “hate crime” does, in my mind, exist with a certainty.
I’m persuadable, but still not entirely persuaded. You’ve all got good points as to motive being important, and in some cases it makes intuitive sense: a murder done in the “passion of the moment” is often less severely dealt with than one with such special circumstances as lying in wait, or premeditation. But it seems to me that Matthew Sheppard’s case (who could have been unaware of that atrocity?), those special circumstances of premeditated torture and murder still apply regardless of the victims class.
In other words – and here’s where I find myself out on a shaky moral limb – did Sheppard’s murderers kill him because they were fatally homophobic? Or were they merely criminal sociopaths who used his otherness as an excuse for their barbarity?
And even if the former were true, were they any more guilty of a crime – a capital crime in any case – then someone who did the same crime to a member of a non-suspect classification?
If the punishment of a crime attends to the victim’s class, does not that mean – from the victim’s status – that we are not all equal in the sight of the law?
That’s kind of where I was going wrt to the crime being effected when the punch lands.
Good discussion topic though. And thanks for reading, and writing.
How do you go beyond capital punishment?
“Sir, I sentence you to life in prison. And when you have done that . . . ”
The Restoration of King Charles II in May 1660 was at the invitation of Parliament, and followed the abdication of Richard Cromwell. It led to the desecration of Oliver Cromwell’s body. The decision to remove Cromwell’s remains from Westminster Abbey, along with those of two others implicated in the execution of the King, was taken by Parliament in December 1660. The bodies were removed from Westminster Abbey on 26th January 1661. Four days later, on the anniversary of the execution of Charles I they were dragged to Tyburn. They were hung from the gallows all day before being taken down and having the heads severed from the bodies. It took more than one blow to remove Cromwell’s head. The heads were set up on poles at Westminster Hall as a warning against regicide and treason. The head was finally re- buried almost 300 years after it had been dug up from Westminster Abbey. It now rests somewhere within the ante-chapel at the College, the precise spot unmarked to ensure that it is left in peace.
Re. #3 – The “heirarchies of victimhood” you describe, to the extent established, are really only defensible when they are based on some social utility (here, an increased deterrent effect that makes schoolteaching and policing easier) that offsets the inherent inequalities under law created by such heirarchies. The other aggravations you describe really aren’t heirarchies of victimhoods but heirarchies of crimes and rules about grouping offenses (the distinction between burglary and burglary at night is at least six centuries old and at one time was the difference between life and death).
This is where the hate crime bit gets into trouble. No one can disagree that, say, battery in the course of burglary should be punished more harshly than either offense separately–because both are crimes. The First Amendment, like it or not, permits all types of hateful thoughts and allowing the distasteful thoughts to aggrivate other crimes makes these thoughts crimes, at least if we’re trying to justify sentence enhancements on the grounds you suggested. Either the “hated” person is entitled to more protection under the law (doubtful) or the motive is itself a thought crime.
So, I don’t really think the hate crime approach as heirarchy of victim argument really holds up that well in the light of the First Amendment and the Equal Protection Clause. But, I also think most violent felonies ought to be capital offenses whether the victim was a transgendered transvestite or the WASPiest club president, so I’m outside of the mainstream.
Interesting subject! My two cents are that there may be good reasons to object to the characterization of certain offenses as “hate crimes” rather than “ordinary” crimes. But in my view it’s not really a question of “thought-crime” or comparative victimhood, and really a simpler question of whether it’s good public policy.
1. It’s entirely understandable to have reservations about basing criminal judgment upon fallible human perceptions about what goes on inside someone else’s head. But the criminal justice system is founded on the notion that a fact-finder is capable of peering into the heart of the accused and establishing a certain state of mind. With very few exceptions, there can be no crime without an accompanying guilty state of mind in the western legal tradition. You can raise or lower the rules of proof if you think that something is especially difficult for people to discern accurately (most of the rules of evidence are intended to guard against our blindspots and biases). But a human justice system cannot exist if there isn’t some faith in our ability to judge.
2. On comparative victimhood, it’s true that varying the penalties for different classes of victim tends to imply preferential status for one victim over another. But note that the criminal justice system does not exist only (or even primarily) for the benefit of the individual victim. It’s there for the benefit of society as the collective victim. I do believe that society is entitled to decide that an offense against one type of victim does society more harm than an offense against another type of victim — and that more resources should be devoted toward the punishment of those crimes for the overall good. We set priorities all the time. It isn’t intended to demean the individual victim (though it’s understandable how an individual victim might feel that way, and that phenomenon itself carries its own social costs that must be taken into account…hence victim’s rights legislation and the like).
In the end I don’t have a philosophical problem with “hate crimes” in the abstract. However, what you decide specifically to make a hate crime is another matter — which really has more to do with public policy than structural concerns about justice.
oops, maybe that was 3 cents…
Hmmm… Great points (even if they did bring out the lawyers
) and I’m on the very brink of changing a loosely formed but cherished opinion. I tremble.
(Better call ahead and tell the Southern California Earthquake Data Center to keep calm, this isn’t the big one.)
So using RJL’s construct of social usefulness, certain protected classes seem obvious – assaults against children, e.g., – while others are open to a sliding scale of opinion as to who is a suspect class, deserving of greater degrees of protection under the law by conferring higher status as victims.
In this construct then, if the victims of the bashing incident had in fact been straights who were wrongly perceived by thuggish louts as being gay, the crime would still be punishable using the enhanced penalties of a hate crime statute since the public good of deterring future attacks against suspect classes of victims over-rides the actual facts of the matter. Is that right?
Which brings us right back ’round again to the fact that the assailant “thought” the victim was gay, and that thought aggravated his offense in the eyes of the state (the victim being no more or less brutalized either way).
Interesting…
Applying the ?
Applying the “mistaken identity” scenario, I think that the crime would remain punishable under a hate crime statute—not despite the facts, but because of them. A hate crime is an ordinary criminal act that is motivated by hatred of the victim’s actual or perceived “protected” characteristics. It’s not a hate crime because the victim is the proper and intended recipient of hatred; it’s a hate crime because the offender is committing a crime out of hatred. Once you have the ordinary criminal component (in this case, an assault upon a person, whether straight or gay), then the “hate” component goes strictly to the offender’s subjective motivation. Those are the facts that matter. Hard to prove? Maybe. But assuming you can prove it, I have no objection to applying stiffer penalties to people who, motivated by reasons that are especially corrosive to a pluralist society, choose to commit criminal acts.
I’ll admit that I too get uncomfortable when “victimhood” is at the center of things, given the misguided direction in which this line of thinking often leads. But this isn’t about the individual victim crying for special retribution because of a claim to special vulnerability. This is the rest of us saying that if you specially target the vulnerable for your lawbreaking, we are going to punish you more severely for that targeting behavior. Except in a nominal way, it’s not about the victim – it’s about the offender.
I also share people’s concern that when “hate” itself, in its unprimed form, becomes the crime, you have some obvious conflicts with freedom of thought and expression. In a few short steps you have a “hate crime” with no ordinary criminal act underlying the offense – a pure thought crime. But that’s different from what we’re talking about here. We’re saying that there has to be a crime, “hate,” and a causative relationship. In other words, it’s not that speeders who don’t like Antarcticans will get more expensive speeding tickets than everyone else merely because of their dislike for the south pole. It’s that thugs who assault people because they’re Antarctican get punished not only for assaulting people, but also for chipping away (in violent criminal fashion) at some of the painful societal fissures that our country has paid a heavy price to partially seal.
Again, I don’t defend specific implementations or modes of enforcement, and I concede that we should be careful about creating so many protected classes that the point of an enhanced set of criminal offenses is lost. But in principle I think it’s appropriate to enhance punishment if an offender commits a crime for a particular heinous reason. I lack the words to precisely articulate the incremental harm done by violent lawbreakers who attack the seams of our society…but my gut tells me that addressing it in this way this is the right thing to do.
I suspect (without having done any research) that even before the introduction of hate crime legislation, the criminal justice system expressed these sorts of preferences in other ways (say, through the flexibility of the sentencing process). Hate crime legislation just codifies (and standardizes) matters.
Lex – but that’s just the point. To me it’s not about “thought police” – it’s an action-based law. If bashers think someone is gay, and act out and assault that person just because of that, then to me it does make it a more heinous crime – they are acting out a prejudice which is more than just a thought; to these kinds of criminals it’s a way of life that they CHOOSE to live. The victim is persecuted for being something they have no choice about. (Substitute a skin color other than white and it’s the same thing.)
This doesn’t mitigate the impact on a victim who is straight (or white) – all crimes against innocent bystanders are heinous in my book. I just believe that if you single someone out for something that makes them different and in which they had no choice, the crime is more insidious and deserving of special punishment.
I’ve been thinking about this since yesterday and came to a similar thought as the comment #9. Police are more likely to interact with criminals because of their job protecting society, so that society affords them more protection in providing stronger penalties if they are attacked. I believe this applies even if the attacker does not know the victim is a policeman. The increased penalty is there for the benefit of the policeman, but is not necessarily based on the thought process of the attacker. In some cases, the threat of increased penalty can be used by the police to prevent an assault.
The comment Kris, #12, made includes the caveat of “other than white,” and my mind suddenly flashed to the movie “To Kill a Mockingbird.”
It was wrong for black on white crime to carry more severe punishments than the same offense committed by white on white, years ago. Doesn’t it follow then that it is wrong for white on black crime to carry more severe punishments today?
The crime is the crime and ideally should be punished the same. That’s the reason for the phrase, “Justice is blind.”
The criminal thought process provides motive that helps lead to conviction. The differential punishment required by the addition of a hate crime designation is an effort to overcome the bias of the jury or judge in sentencing.
Additional categorization or “special victim” status leads to preferential or biased treatment based on whatever criteria is used, be it sexual orientation, religion or race. Biased treatment leads to intentionally biased judgement.
In the case of the police, the bias could be construed for their protection, in return for their service.
Special protection for special groups aims to deter the bigots, but may just inflame them because of a perceived inequity in justice based on those very protections.
I don’t have an answer, but I am enjoying the discussion.
Fourteen thoughtful comments on a sensitive topic and no one has called anyone names.
You guys are the best.
Jonboy: my point in saying “other than white” was to illustrate that a crime perpetuated on someone just because the color of their skin is different IS more inflammatory. And since white is the majority, it would be difficult to classify a hate crime against someone who is white, just because they are white. But I do see the other side to the argument and I don’t believe there is a clear, definitive answer to how to treat crimes born from hatred of someone who is different. We are talking about the minds – yes and thoughts – of people who hate for reasons that no one, even them, can justify or explain.
And Lex – we ARE the best. Glad you noticed.
Lex I guess my point that I didn’t quite get across is that perhaps all the crimes we’ve talked about should be treated and punished regardless of any “special” motivation of the criminal or class of victim. But like in the Shepherd case, after the fact people are going to say “that was a hate crime”. And perhaps the people know best in the sense that we may not need specific legal tiers or pigeonholes for what crime is worse than others because in the end it’s the jury of 12 that will decide. And they may decide in one case, well this was accidental murder during a robbery so the criminal gets a typical punishment. Yet in another case they decide that because the criminal was so willfully motiviated by hate (based on the evidence they’ve seen and the morals they grew up with) then yes, we’re giving them the “normal” punishment for say murder 1 but we’re taking into account the hate part and denying parole ever. Or something like that. I only know law from books and tv (ok and that one speeding ticket), so hopefully you get the idea.
Bottom line, it’s a tough sell to have special classes of crime and victims spelled out in the law. But it’s not so hard to swallow to let a jury determine that any particular case is particularly heinous and have them tack a little extra on the sentence.
Good discussion all around really. If we did come up with an answer we’d be ahead of some pretty smart people who are paid to sort this stuff out.
Lex, you set the tone. That helps.
Kris: I understand the quandry and I think that is part of the problem with the designation hate crimes.
Our justice system considers aggravating as well as mitigating circumstances.
The ideal is equal justice for all. That’s why the punishment for people assaulting or robbing other people should be the same regardless of these factors.
The problem with your caveat is the perception that whites assaulting blacks because of race is worse than blacks assaulting whites because of race.
Both assaults are wrong and the fact that race was a motive should be an aggravating factor for both.
When bias or prejudice is a factor, no matter which direction, ideally the punishment should be the same.
[...] The San Diego police have arrested three men – including two juveniles -?Ǭ
[...] The San Diego police have arrested three men – including two juveniles - on suspicion of assault with a deadly weapon – with a hate crime enhancement – in the gay bashing incident referred to below. In a continuing spirit of deference to the legal system, I’ll attempt to withhold judgment while pointing out that none of this surprises all that much: Court records show (the accused), who is being held in the downtown jail pending arraignment tomorrow, pleaded guilty to felony burglary in April in San Diego. He was sentenced to three years’ probation. He was convicted of a similar crime last year in Texas. [...]
Kris, I’ll echo what Jonboy says.
If you are going to say that black on white race-motivated crime isn’t the same as white on black, then we are no longer discussing the philosophies or sociologically-based arguments laid out so articulately here. Instead, it’s an argument based on… what, exactly? That it’s okay to attack whites on a racial basis because hating whites is okay?
In other words, how does your caveat fit into a wider philosophy?
Fbl: I’m having a hard time putting into words what I mean (a novelty for me, I know…). What I’m trying to say is that, in the end, to me it really is about the motivation behind these types of crimes. So I will concede that what I am saying, in a broader term, is that the thought behind the crime should serve as an aggravating factor. So if someone black attacks someone white for NO other reason than skin color, then yes I guess I’d say that is a hate crime.
I concur with Lex in comment #15.It is definitely a pleasure to read such thoughtful discussion on such a highly charged issue. W/O any name calling.OTOH I am jealous of all of you’re prose crafting abilities.