With various media outlets claiming a rise in anti-Muslim rhetoric and making questionable linkages between rhetoric and actions, the notion of “hate crimes” has once again come up in social discussion. What makes determining an illegal act as a hate crime for religious identification strongly problematic is the nature of choice involved. Religion, unlike race or sexual preference, is generally considered to be a choice. What are we to make of this expansion for identification of a hate crime? Before expanding on an answer, it’s a good idea to look at the foundational thinking behind creating a special class of crime. Remember, what distinguishes a “hate crime” is not the behavior itself as it is no different than another already illegal act. Rather, the distinction is made upon the degree of intent being notably more powerful than a regular crime, and this due to the special nature of the object of that crime, i.e. the victim(s) involved.
Presented here is a brief note against this special delineation and then another brief note in support of doing so. The intent here is not to be exhaustive, simply to offer the basic rationale concerning both sides of the issue. Written as it was during school, the nature of the writing is of a more academic tone than other entries found on this site.
“Hate” Crimes Should Not Be Different
Crime is an action predicated on the definition which society has established declaring particular behaviors as being detrimental to the well-being of person(s), such that the consequences of said behavior can be punishable in a way commensurate with the damage done, including but not limited to fines and imprisonment. The direct relationship between criminal behavior and punishment is the means by which justice is determined; as behavior is seen to, as in all other aspects of existence, have specific consequences. Much as a person intrinsically knows that eating vast amounts of sweets will result in tooth decay and weight gain, or a child crossing a busy street without supervision knows they will be scolded and perhaps spanked, so the person committing a crime intrinsically knows that there are specific consequences involved in the commitment of such behavior. This punishment rests upon the principle of individuality that resides at the core of the judicial system (Wrightsman et al, 2006), in so much as the actual perpetrator of specific actions will receive a more severe punishment than bystanders or those deemed to have perhaps had an influence on the person. Individual autonomy in decision making and the concomitant understanding that the only clear means of ascertaining context is through identification of particular behavior result in the conclusion that behavior stands alone as being bound entirely within the framework of an individual’s choice.
To include in the mix of judicial understanding the nebulous notion of bias or prejudice, specifically as it relates to crude social distinctions like race and gender identity is to remove from discussion any means of establishing a rational relationship between behavior and consequent punishment (Sullaway, 2004). The law is interested simply in the proper procedural allocution of consequence requiring that crime is seen in the concrete terms of specific behavior. The inclusion of emotional states, which “hate” crime delineation demands, makes behavior less about cause-effect relationships and more about the uncertain inner workings of the person. Law cannot dwell in uncertainty else the notion of justice being blind becomes saturated by subjectivity.
Hate Crimes are a Special Class of Crime
The punishment of intent or motivation is bound within the notion of retributive justice, where no behavior is without motivational basis within the perpetrator. Determining intention is not merely the goal of law but a primary assumption, found within the jurisprudential principle of “innocent till proven guilty” (Wrightsman et al, 2006). Behavior does not exist without an intender, an actor on the social stage deliberating upon said action. The principle previously noted serves as a reminder that while behaviors are identified as criminal, the determination of a relational connection of those behaviors with a particular person is synonymous with determining intent. In other words, no behavior is done without mental intent and thus the law is interested in the so-called subjective states of the internal world of the person.
Hate crimes focus on this determination of intent where it is determined that the crime/behavior is specifically concerned with the motivation of causing harm/distress to a social group incapable of removing themselves from the locus upon which specific intent is built. While crime itself is an action motivated by the intent to deprive property or right from an individual and thus applies to all human beings, when the locus of intent is built upon race, gender, sexual identity, aspects of human existence that are self-identifying and outside individual control, the perpetrator has not simply committed a crime against humanity in general but against a specific identifying feature of humanity. The motivating factor, as in crime general, is to cause a specific future goal to occur, i.e. the harm/distress of the person; is here conflated with intent (Sullaway, 2004) to harm a specifically identifiable person, of which their identifiable characteristic exists not by choice. Just as in the determination of the degree of murder, where intent is associated with a greater degree, so a hate crime identifies those crimes isolating a specific group as somehow being determined by the perpetrator as deserving of particular focus.
© David Teachout
Sullaway, M. (2004). Psychological Perspectives on Hate Crime Laws. Psychology, Public Policy, and Law, 10(3), 250-292. doi:10.1037/1076-89184.108.40.206
Wrightsman, L. S., Greene, E., Nietzel, M.T., & Fortune, W.H. (2006). Psychology and the legal system (6th ed.). Belmont, CA: Wadsworth Thomson Learning.