The criminalization of hatred - Civil Liberties Watch

Is hatred a moral crime against humanity? Of course it is. Is there any doubt that bigotry and hatred are at the root of incalculable human suffering, death, and injustice, and always have been? Of course not. Can we reduce this dreadful scourge by legally defining hatred itself as a crime and proscribing additional penalties for crimes committed because of it?

Many well-intentioned people think we can. To this end, various state and federal measures, commonly known as anti-hate-crime or felony malicious-harassment laws, are being adopted.

Washington state adopted such a measure last year. Due to the intervention of the Washington chapter of the American Civil Liberties Union, the state's malicious-harassment law is far less restrictive than most. That not-withstanding, in King County Superior Court this past March, the jury trial of two persons charged with felony malicious harassment resulted in a hung jury.

And no wonder. Twelve good and true citizens were asked to determine whether or not two young men who, with about eight other teenagers, placed an eight-foot cross in the yard of an African-American family and set it on fire were "substantially motivated by, and intending to convey, hatred of black people."

At best, determining the motivation of a crime is a dubious undertaking. The defendants' attorney stated that he is convinced that his clients knew they were engaging in an insensitive prank but were not aware of its implications and did not intend to intimidate the family. It was confirmed that one of the defendants was a close friend of the family's son.

The defense attorney told the press: "We do such a poor job of teaching history - especially black history - in this country that it isn't that surprising that some white suburban kids wouldn't realize the significance of what happened here." To thoughtful people, this statement is the most significant and tragic implication of this incident. It reminds us once again that the only way we can bring about a genuine reduction of hatred and bigotry is through education. Unfortunately, this long and arduous process has little appeal to those looking for quick-fix solutions to profoundly complicated social problems.

Even if it were possible to determine the mindset in which a crime is committed, is it appropriate in a free society for the government to punish people for their inner motivations, feelings, and and feelings may be? Feelings and motivations, whether considered good or bad, are private and mercurial; laws are not. It doesn't take much imagination to foresee an manner of abuses of this approach. George Orwell's 1984 springs unbidden to mind.

Most state "hate-crime" laws contain at least three of the following four components (originally written and promoted by the Anti-Defamation League of B'nai B'rith):

Institutional Vandalism: This is a totally new crime, which increases the criminal penalties for vandalism if it is aimed at houses of worship, cemeteries, schools, and community centers. Some states have deleted entirely the existing crime of desecration and replaced it with the crime of institutional vandalism. The statute requires knowledge of the character of the property but does not require proof of motive for vandalism. Supporters readily admit that the law should not require proof of motivation "in order to make convictions easier to obtain."

Intimidation/Malicious Harrassment: This charge provides for stepped-up criminal penalties for acts of intimidation, harassment, and vandalism (crimes already part of the criminal code) where persons or groups are victimized by a perpetrator who is substantially motivated by hatred of the victim's actual or perceived (any or all of the following): race; color; sex; religion; age; ancestry; political affiliation; national origin; service in the armed forces; physical, sensory, or mental disability or handicap; HIV infection; or sexual orientation.

Miscellaneous Specific Prohibitions: Among these are specific prohibitions against cross-burning at any time or place, including on one's own property. Some states have expanded these specific prohibitions to include "other religious symbols, on public or private property, with or without authorization." Some include added punishments for "disturbing any religious assembly" and for theft of "any object used in connection with religious worship" Some prohibit the wearing of masks or hoods or other devices that conceal a person's identity. Although there are exemptions for holiday and theatrical productions, the overbreadth of this prohibition is still cause for concern. Obviously, several of these statutes punish symbolic speech, as did the prohibition on flag-burning struck down by the Supreme Court.

Civil Action: These provisions provide for recovery from the perpetrator of punitive damages and attorneys' fees by the victim or any member of the victim's immediate family. They also mandate parental liability for minor children's actions - a type of recovery specifically prohibited under most states' common-law tort actions. (A criminal conviction of the perpetrator is not a precedent condition for bringing this type of suit.)