Last week, Dharun Ravi was convicted of a hate crime for using his webcam to broadcast his roommate, Tyler Clementi, kissing a man in their shared Rutgers dorm room in September of 2010. A few days after the webcast, Tyler Clementi killed himself by jumping off the George Washington Bridge.
Dharun Ravi’s actions were despicable and cruel. He is unquestionably guilty of invasion of privacy, among other things. And under the law as it now stands, he is guilty of a hate crime. But I would argue that he shouldn’t be -- because hate crimes statutes shouldn’t exist at all.
My fundamental problem with hate crimes statutes is that they create a sort of “victim hierarchy.” In my view, all life is precious, and victims should be treated equally. A person who intentionally hurts another person is not somehow less morally culpable because he did so without state-recognized “bias.”
And on the flip side, a victim who has been hurt by an “unbiased” person is not less of a victim, or less entitled to justice, than a victim who has been hurt by a bigot. And yet the law treats these victims differently, and their aggressors receive vastly different punishments.
If a guy attacked me and beat me with a crowbar, he would be charged with Aggravated Assault and face, say, somewhere between 2 and 4 years in prison. If he attacked me in the same way while yelling “kike” at me, he would instead face a sentence of 5 to 10 years. Hate crimes statutes enhance penalties for crimes already on the books.
In both instances, I got beat up with a crowbar. In both instances, the action that the guy is on trial for is the action of beating me up with a crowbar. However, in the second example, the guy ends up with more jail time.
Two (admittedly horrible) actions get two different results, and the discrepancy exists because hate crimes statutes put the perpetrator’s thoughts on trial. And that’s not fair -- it’s not fair to the victim who gets beat up without getting called “kike” and, less sympathetically, it’s not fair to the perp.
A common misconception is that thoughts are always on trial -- after all, isn’t that why there’s such a hullabaloo about “intent” when differentiating between manslaughter and murder? But this sort of reasoning conflates “intent” with “motivation.”
The “intent” that criminal law focuses on when distinguishing levels of a crime is the intent to commit the crime itself, not the motivation behind it. Motivation can lead to inferences of intent, but it is intent that ultimately matters.
For example, let’s say Julie is driving in her car and runs over Tina. If I were to tell you that Julie has never seen Tina before and they are in fact complete strangers, you would probably conclude that this was an unfortunate accident and that Julie did not intend to kill Tina -- perhaps you’d return a verdict of involuntary manslaughter.
However, if I were to tell you that Tina has been having an affair with Julie’s husband, your view of the situation would probably change, and you might conclude that Julie actually did intend to hit and kill Tina -- so a verdict of murder might be appropriate. Motivation can be an indicator of intent, but it is intent that is actually relevant to the crime and its punishment.
Hate crimes statutes focus not on intent, but on motivation. And this interferes with a fundamental precept of American law: your right to be wrong.
It has been long understood that as an American, you get to believe whatever you want to believe. You can believe that the moon is really made out of cheese or that 9/11 was an inside job or that God wants you to have multiple wives, and that’s your right.
However, no matter what you believe, you can’t always act on those beliefs. Even if you believe that God wants you to have multiple wives, polygamy is still illegal. Your thoughts are un-police-able. Your actions are not.
That means that you can believe that homosexuality is a sin, or that Blacks are inferior. You can believe that “God Hates Fags” or that all Muslims are terrorists. I mean, you’re obviously a terrible person, and I secretly hope that you die before you procreate, but you get to believe whatever you want. You can believe in White Supremacy and you can believe that God wants you to kill minorities. You can believe that -- but if you act on it, that’s murder, and you’ll go to prison.
What hate crimes statutes do is get dangerously close to policing the “you can believe” part of “you can believe, but you can’t always act.” Proponents of hate crimes statutes argue that this is a moot point, because hate crimes statutes only affect people who actually have acted.
But that’s my point -- we already have criminal statutes that target those actions. Assault is illegal; murder is illegal; invasion of privacy is illegal. Hate crimes statutes say: assault is illegal, but assault + hate is extra illegal. And I just don’t think that meshes with the idea that action, not belief, is what we police.
An additional concern is the arbitrariness of hate crimes’ enforcement. The federal hate crimes statute includes “gender” among its protected groups. A crime motivated by the victim’s gender can be classified by a hate crime. And isn’t violent, male-perpetrated rape always motivated by gender? Date rape aside (or not, depending on your view), can’t all rapes be considered hate crimes?
But of course this doesn’t work, because if all rapes are hate crimes, and hate crimes carry longer sentences, then all rapes would have longer sentences. And if we want that result, then shouldn’t we just change rape sentencing to begin with?
But of course this is a non-issue, because rape isn’t prosecuted as a hate crime.
Although they’re not used to prosecute rapists, hate crimes statutes are used in order to bolster public opinion of politicians and prosecutors during high-profile cases. Look at Dharun Ravi -- before the Tyler Clementi case became a media circus, the prosecutor went on record stating that he didn’t think it was a hate crime. But as media attention grew, incentive to throw the book at Ravi also grew. And the hate crimes statute suddenly came in handy.
Even though studies have shown that likelihood of retaliation within a community increases when an event is characterized as a hate crime, the statutes continue to be used in wildly inappropriate circumstances.
For example: In 2007, a Pennsylvania man named Daniel Sinnott was a tenant and employee of Evelyn Rojas’ father. One morning, Daniel showed up at Evelyn’s father’s house, yelling that her father had cheated him.
During the altercation, he began screaming at Evelyn, and his diatribe included racial epithets (Evelyn was Puerto Rican, but Daniel thought she was Mexican and called her a “wetback”). The incident ended in a physical altercation between Daniel and Evelyn.
Daniel was arrested and charged with assault and "ethnic intimidation" under Pennsylvania’s hate crimes statute. He was convicted, but appealed on the grounds that the fight had begun because he felt cheated, not because he was racially biased against the Rojas family. He argued that the racial epithets, while a byproduct of the fight, were not indicative of his primary motivation and therefore not appropriate fodder for hate crimes prosecution.
Daniel Sinnott, in my view, is a pretty shitty person who, in a fit of anger, assaulted the daughter of his employer. He sucks. He should go to prison. But we already have a statute and an accompanying sentence for the crime of Assault.
Does it make sense that this sentence was lengthened purely because of his racial bias -- which was ancillary to the crime, and not even its primary motivator?
The purpose of hate crimes statutes is ostensibly to remedy the widespread effects that race-, gender-, sexuality-, religion-, and disability-based crimes have on a community as a whole. The argument is that crimes based on discrimination affect more people than do other crimes. But while punishing crime is within the province of the criminal justice system, eradicating bias is the responsibility of society at large.
Other than rehabilitation and retribution, the primary point of our justice system is to discourage crime by threatening punishment. Murder gets a heftier sentence than petty theft partially because we are more interested in preventing murder than we are in preventing petty theft.
However, bias is not something that can be discouraged in the manner that actions can. Bias is removed from a society through education, understanding, and discussion. Hate crimes statutes do nothing to discourage or cure bias, and yet they punish it. Harshly.
I’m not going to get all Camille Paglia and rant about “totalitarian thought police” here, but hate crimes statutes do get dangerously close to judging a person’s character rather than his actions.
And that’s not justice.