Hate Crime Laws, or… Three Lesbians Walk Into a Bar

Assume these are lesbians. It's not that much of a stretch.

Well, they walked into a T station.  And then beat up a man for being gay.

The women were arraigned today for committing a hate crime, a charge they and their family deny could be possible since all three are out lesbians.

Is your head spinning yet?

Of course it’s not impossible for lesbians to be biased — or hate — gay men (I’ve always found it odd that two groups that could not be more different are yolked together in the fight for gay equality).  Nor is it impossible for Jews to be anti-semitic.  Or for any member of a protected class to have hatred for other members who may not wear their identity differently.

And herein lies a problem with hate crime laws: they lead to a lot of arbitrary, bizarre results because proving motivation is an abstract, subjective thing to do.  And humans don’t readily fit into neat categories.

Hate crime legislation is well intended and seeks to address the very real and disgusting displays of animus towards historically mistreated groups.  These laws generally enforces harsher punishment for a given crime for two main reasons:

  1. A crime motivated by hate for a particular group causes greater psychological damage to the victim and should be punished accordingly
  2. Hate crimes have “externalities” — the intimidation effect of one act is multiplied across all members of the attacked group.

Hate crimes may have externalities — but so do all other crimes.  That harm is also variable and impossible to prove, which leads to unjust sentencing. If someone is robbed in my building, I’m going to be intimidated.  If someone burns down a business in my neighborhood, I’d worry that the arsonist would attack my building next.  But what if I was in the next neighborhood over? Would I feel intimidated? Maybe, and maybe not, so where do we draw the line?

But hate crime laws don’t really address these problems. They introduce subjectivity into a criminal justice system that is already prone to abuse.  They demand that prosecutors prove a particular motivation for the crime, which can be simple, but is more often exceedingly complex and senseless.  Proving intent is one thing — someone who accidentally kills another person in a car accident should be punished differently from a serial killer — but determining the motivation behind intent is vague, complex, and ripe for manipulation by prosecutors or victim’s advocates.

No matter the crime, no matter the motivation, the prosecutor’s job is to make the case for a punishment the fits the crime, and all that lingers, for that particular case.    Hate crime laws add black-and-white sentences to crimes for very grey reasons.

There’s also the octopus problem: the current borders of hate crime laws are mutable and may lead to unintentional overreach Because hate crime laws protect classes of people that we choose to identify as vulnerable to attack, marginalized, or discriminated, many yet-to-be protected groups could make the case that they also be brought under the umbrella.  While the Supreme Court limits “suspect classes” to those of particular race, religion, or national origin, hate crime laws frequently include (increasingly) more categories such as sexual orientation, (dis)ability, marital status, or parentage.

It’s not to say that these groups aren’t vulnerable, aren’t shamelessly attacked, aren’t deserving of protection.  I mean to say that there is less rigorous review of new classes and that kind of loose law making eventually leads to confusing, arbitrary, and senseless carve-outs that reflect political whims.

Finally — and this is counterintuitive — but hate crime laws only magnify the gap between marginalized groups and institutionalize our differences by asking society to crystalize and draw borders around our hate in a criminal justice system that so poorly serves our needs to begin with, according to the Sylvia Rivera Law Project’s objection to the Gender Employment Non-Discrimination Act:

Our penalties are harsher and sentences longer than they are anywhere else on the planet, and hate crime laws with sentencing enhancements make them harsher and longer. By supporting longer periods of incarceration and putting a more threatening weapon in the state’s hands, this kind of legislation places an enormous amount of faith in our deeply flawed, transphobic, and racist criminal legal system. The application of this increased power and extended punishment is entirely at the discretion of a system riddled with prejudice, institutional bias, economic motives, and corruption.

In popular conception, hate crime laws were enacted to protect oppressed minorities against bigots who would seek to terrorize a community through violent crime: racist lynchings, gay-bashing, anti-Semitic violence, and so forth. Unfortunately, the popular imagining of the operation of hate crime laws does not bear out in reality. Hate crime laws do not distinguish between oppressed groups and groups with social and institutional power.



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