Thursday, December 31, 2009

...but was it a "Hate Crime"?



Few pieces of legislation are as misunderstood as the Federal Law which designates and prohibits 'Hate Crimes'. As a result, almost anytime there is a violent crime involving persons of different races, someone on one side or the other generally calls for the issue to be designated as a 'Hate Crime'. I decided to pen this column to hopefully shed a little light and provide some guidance for activists unsure of when to pursue a 'Hate Crime' designation.

The current confusion over what is or isn't a 'Hate Crime' obfuscates the real intent of the legislation. Each time a high-profile incident with a racial component is determined not to be a hate crime, it plays into the narrative that 'Hate Crime' designations are governed by a needlessly complex and somewhat arbitrary standard. Conversely, the very existence of hate crimes legislation has served to enflame some on the Right who view the designation as an attack on politically incorrect thought and free speech. Neither position is correct. The legal standard for a Hate Crime designation is neither complex nor arbitrary, and the Federal law governing Hate Crimes does not criminalize speech, thought, or membership in groups or associations organized around hate speech or ideology.


Examples of recent descriptions of Hate Crime Legislation

The real purpose of hate-crime laws is to reassure politically significant groups -- blacks, Hispanics, Jews, gays, etc. -- that someone cares about them and takes their fears seriously. That's nice. It does not change the fact, though, that what's being punished is thought or speech. Richard Cohen, Washington Post
Wrong
~~~
The views of millions of religious Americans will be violated if this legislation passes. It punishes the thoughts of a person! Traditional Values Coalition
Wrong Again
~~~
" Hate crimes legislation is antithetical to the First Amendment, unnecessary and will have a chilling effect on religious freedom," - Rep. Mike Pence, R-Indiana
Wrong and duplicitous
~~~

The Matthew Shepard and James Byrd Jr Hate Crimes Prevention Act states that a Hate Crime has occurred when:

Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—
Or because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person—

In layman’s terms: To understand when a Hate Crime designation should be applied, you must first identify the ‘intended’ victim. It is necessary to differentiate between a victim chosen because of some real or perceived relationship with the attacker and a victim who is ‘symbolic’; chosen as a proxy because they are in someway representative of a group or class. Understood in this context, a Hate Crime is the physiognomic equivalent of terrorism.

This critical distinction between related and symbolic victimization is the reason we don’t charge terrorists with 1st or 2nd degree murder charges. A terrorist's intended target is not the person or persons they kill, rather their intent is to strike out at the group of people that the victim(s) represent. In order to cause injury or send a message to members of a nationalistic or ideological cohort, they single out and attack otherwise random citizens from those respective groups. In the same way, a Hate Crime is one where the intended victim is not necessarily the person or persons who were attacked, but rather their intent is to strike out at the group of people that the victim(s) represent. In order to cause injury or send a message to members of a social or physiological cohort (be it ethnic, religious, sexual orientation or gender-based) they single out and attack otherwise random citizens from those respective groups. And it is the essentially random nature of these attacks that elevates them to a higher degree of culpability.

The Matthew Shepard and James Byrd Jr Hate Crimes Prevention Act does NOT criminalize hate speech, hateful expressions, or membership in groups based upon such beliefs. Those who argue to the contrary clearly have not read the Act. The act states:

Section 4710: subparagraph 4, 5, and 6

(4) FREE EXPRESSION
Nothing in this division shall be construed to allow prosecution based solely upon an individual's expression of racial, religious, political, or other beliefs or solely upon an individual's membership in a group advocating or espousing such beliefs.

(5) FIRST AMENDMENT
Nothing in this division, or an amendment made by this division, shall be construed to diminish any rights under the first amendment to the Constitution of the United States.

(6) CONSTITUTIONAL PROTECTIONS
Nothing in this division shall be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the first amendment to the Constitution of the United States and peaceful picketing or demonstration. The Constitution of the United States does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.

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