Thursday, October 25, 2007

More On The Definition Of "Hate Crime"

I wanted to respond to something that David Neiwert wrote about hate crimes. You might call it quibbling, but as I've written about before the distinction has substantial ramifications for how we prosecute hate crimes. David says:

  1. "A hate crime hasn't occurred simply when a person of one race commits a crime against someone of another. This, of course, occurs all the time."
  2. "It's only a hate crime when the victim is intentionally selected specifically because of their ethnic, religious, or sexual identity."
  3. "Hate crimes are message crimes: They are intended to harm not just the immediate victim, but all people of that same class within the community. Their message is also irrevocable: they are "get out of town, nigger/Jew/queer" crimes."
David's construction leads to a situation where a particular crime can be both a hate crime and not a hate crime at the same time.

Suppose that a white man beats a black man due to racial animus, but provides no external markers indicating his motivation. This situation meets the definition of "hate crime" given in (2), but (3) requires the delivery of a message of racial animus to the targeted community. Per (1), racial animus can't be inferred merely by the fact of white-on-black crime, so there must be external signs indicating the perpetrator's motivation. Such signs are absent in this case, so this situation is not a hate crime as defined by (3).

The contradiction here arises from an undue focus on the perpetrator's internal mental status. If bias crimes are really crimes of intimidation directed as a particular group then the perpetrator's motivation is secondary to that group's perceptions of the incident. If a representative member or members of the targeted group believes that a crime was bias motivated then that meets the "message delivery" criteria which David outlined above. Conversely, if the targeted group does not perceive bias motivation, then it's difficult to argue that a particular incident is a hate crime, regardless of the perpetrator's intentions. Of course, in the case of perceived bias motivation, evidence contradicting that interpretation should certainly serve as a mitigating factor.


Blogger Robert said...

"Hate crimes are message crimes: They are intended to harm not just the immediate victim, but all people of that same class within the community."

Why does it have to be "all the people" for a hate crime to be motivated by racial animus? This allows one group to victimize another group but cover their tracks by leaving others of the victimized group alone. I am thinking of the forced expulsion of Palestinians during the 47 war while a small group was allowed to remain.

10:28 AM  
Blogger GG said...

Afternoon Robert -

Those were David Neiwert's words, not mine, so I can't speak as to what he specifically intended by them. But his general point, I believe, was that a hate crime involves an indirect harm that one might experience by virtue of one's membership in the targeted class.

As far as your specific example goes: I'm officially agnostic about anything touching on the Palestinians and their relationship with Israel; I've no idea whether the forced expulsion constituted a hate crime of the type to which David was referring.

That said you raise a good point. If some sort of crime is committed selectively against part of a particular class can it still be considered a hate crime? It seems clear to me that the fact that only part of a population is subjected to some particular treatment doesn't preclude such treatment from being classified as such. In the archetypal type of hate crime that David was discussing the direct crime is perpetuated on a single individual i.e. a subgroup of the targeted class consisting of one person. To continue, let's say that a single individual and eir friends are rounded up and similarly subjected; could that still be a hate crime? Sure.

The size of the group seems to be pretty much irrelevant in this case; what matters is whether those who don't suffer a criminal act directly are still affected indirectly by virtue of their group membership.

Back to your example: Could the remaining Palestinians have experienced an indirect harm as a result of the expulsion? That certainly seems plausible, so the fact that only part of the population was expelled doesn't preclude the possibility that the act was a hate crime.

4:15 PM  

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