For a while now, I’ve been struggling with the concept of ‘hate crimes,’ as used in American law. Part of my problem is described in the linked wikipedia article — it’s one of the areas of jurisprudence which gets most involved with the mindset of the criminal — not just whether he* planned the murder or knew what he was doing, but why he did it. It’s a fraught question, because it is nebulous and requires the court to ultimately know the killer’s motives, perhaps better than he does himself. There is also the issue of thoughtcrime — most of us don’t like the prospect of being prosecuted for thoughts, even if those thoughts are, in the case of hate crimes, pretty vile.
That, I don’t think, is quite enough to throw out the concept of ‘hate crime’ as an aggravating factor or separate charge entirely. But one thing I find particularly problematic about the ‘hate crime’ label is inconsistencies in how it is deployed. For one thing, I think the legal defense “gay panic” is pretty much an admission of hate crime, not a defense against it, but that’s not my main point here. My main point is that certain groups aren’t protected. Particularly, women.
Until today, this thought process of mine about hate crimes and women ended: “Aren’t most serial killers motivated by an irrational hatred of women? Why the hell aren’t they being prosecuted for hate crimes?” Well, today we have a new standard: A gunman enters a school, has all the boys leave, and starts shooting girls. (Not to be confused with the Colorado school shooting/hostage crisis last week, where the gunman chose certain (mostly blonde) girls as hostages and sexually assaulted them.) Of course, the gunmen in both cases are dead. That’s pretty much par for this particular course. So we won’t find out if any DA would consider prosecuting this as a hate crime. But I have a feeling that if the killer had let all the white schoolchildren out of a mixed-race classroom and started shooting at the remaining children, there would be no question.
Should ‘hate crime’ legislation be used to prosecute such a criminal, if we manage to catch one alive? Or is the entire ‘hate crime’ designation too nebulous to remain in the body of American law? I am most certainly not a lawyer, and I really don’t know. It all just makes me tired and sad. What do you think, reader?
* I use the male pronoun throughout. At first, I used ‘he/she’, but by the time I got to ‘himself/herself’, it had become ridiculous. Not all criminals are male, not all killers are male. I am adopting ‘he’ for ease of use.
Comments
Doing the math...
If a female gunwoman took a classroom full of hostages and killed all the male students, would anyone consider that a hate crime? I doubt it.
Perhaps it’s all in the numbers. To be considered a hate crime, it must be perpetrated against a minority. I’ll take a wild guess and postulate that there are roughly as many women as men in our societiy (which, I believe, is the unit of measure when determining who is a minority and who isn’t, in the United States), hence invalidating the labeling a minority of an entire gender.
Re: Doing the math...
Hmm. An interesting point—I’m not sure about the US, but in the world at large, 51% of people are female, last time I heard.
Of course, I think demographic trends show white Americans losing majority status fairly soon—it will be interesting to see what, if any, discussions ensue about privilege and numbers.
Hate Crime?
I have always found the term hate crime a bit redundant. That aside, it strikes me as odd to consider a whole gender (or is it sex, I get the two confused) a potential target of hate crimes, though you do raise interesting points. Whatever the theoretical implications, I am sickened by these recent events, and even more glad then usual not to be a student at this point in time.
Re: Hate Crime?
I deleted some sentences in favor of the whole ‘hate crime too nebulous’ side as the dem thing was too long and I am too prolix en generale. I think it has its points.
More confusion
Yep, it’s a sticky bit of jurisprudence. The first place I’d look is the Equal Protection Clause of the 14th Amendment, which starts giving us a definition of the types of classes of people that are typically protected in U.S. law. Particularly, laws that are considered prejudicial based on race or gender are considered unconstitutional. However, the Equal Protection Clause doesn’t prevent people from being prejudicial; it only prevents laws from being prejudicial, if there’s no compelling policy reason that is weighed more heavily than the prejudicial harm. Furthermore, it’s hard to say whether hate crime legislation is bolstered by the Equal Protection Clause, or harmed by it; after all, isn’t it selective, based on minority status? Or if it was selective by gender, if we accept the (reasonable) thesis that women can be the target of hate crimes too? So hate crime law may be prejudicial (against white guy victims, who have to settle for less punitive sentencing on their attackers, I guess) – but probably no more than Affirmative Action legislation, which is confusing but more or less has been accepted by the Supreme Court on a balancing test.
Civil rights isn’t really my forte (I haven’t taken that section of Con Law yet, I’m mostly figuring out how your taxes work, right now) but I would say that things are certainly fluid enough that if I was a prosecutor trying to convict a serial killer, I’d try the hate crime angle, whether the victim was protected by the legislation or not. It’s a logical connection and I think a jury would be sympathetic to it. I imagine that a killer’s racism or misogyny will be an important factor in any violent-crime sentencing, whether there’s a hate crimes law imposing sentencing guidelines or not. But also remember that when it comes to hate crimes for mass murders, it may only be the number of consecutive life sentences you’re stacking; and if the state does have the death penalty, the killer’s state of mind, including his prejudices, will absolutely be considered (usually through years of litigation.)