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On the Brink of Hate Crimes Law Protecting the LGBT Community

Tomorrow, President Obama is expected to sign the hate crimes bill (smuggled into an essential military spending measure) that will, at last, extend the reach of protection to those attacked and seriously wounded or killed because of gender, gender identity, sexual orientation, or disability.

Before I offer an opinion on the measure, it’s worth pausing for a moment at the imminent passage of the first significant piece of federal legislation enacted on behalf of the LGBT community. Whatever one’s belief about the value of this law as opposed to others in the pipeline (or not) designed to address the community’s needs, it’s appropriate here to pause and offer thanks and respect for the advocates who worked tirelessly for this, including, of course, Judy Shepard. Of course, this had better not be the only thing the Obama Administration does, but I’ll leave that alone for today.

I’ve likely spent more time thinking about the wisdom of hate crimes legislation than is healthy. For a long time, I had trouble with it; to an extent, I still do. There’s something to the argument that violent crimes are just violent crimes; that, by trying to dig more deeply into impermissible motives, the prosecutor runs the risk of punishing conduct the law didn’t intend to target, or, worse, targeting conduct because of its speech content rather than the serious physical consequences it produces.

Sometimes, those offering these arguments aren’t doing so in good faith — they oppose only this hate crimes bill, but not protecting victims of crimes committed because of race, religion, or national origin. Sorry, but given the prevalence of anti-queer (and I’m using the term advisedly here) violence, this is just a specious assertion: If anyone needs hate crimes protection, it’s the most outrageous gender “outlaws.” Even more “mainstream” gays are targeted at a rate that’s high even among despised groups. Worse, the LGBT community is the victim of a great number of the most serious cases.

Some, though, make the principled  conservative case against hate crimes law. Andrew Sullivan is prominent among these. (He’s addressed the issue on many occasions, but particularly persuasively, on what are really philosophical grounds,   here.) But I’m less concerned about the metaphysical basis of “hate” than he is. Instead, I look at the situation this way: What we (collectively) are saying in bumping up the penalty for a crime against a protected group is that: (1) Words can’t be punished in themselves, but when those words are linked to criminal action, they become something else; and (2) That “something else” is sufficiently upsetting to the community that we want to both stand with the victims and send a message to the those who might engage in similar behavior.

The trick, of course, is to use the words to prove a heightened degree of criminality. But the fact that we’re using words instead of some other indicator of intent shouldn’t be dispositive, unless one is willing to cling to the obvious fiction that we can never punish anything related to “words.” We punish fraud, defamation, and “fighting words,” to name a few. And words are routinely used to define crimes, and to establish motive and intent.

Once that’s out of the way, then we’re in familiar territory: Deciding how culpable particular acts are. And these are judgments we make all the time. Here is David Gibson:

“[T]he law is full of degrees of criminality. Premeditated murder is not viewed in the same way as a crime of passion, just as rape is treated as an especially heinous type of physical attack that is meant to degrade a victim, and so is deserving of appropriate penalties….

“[T]hese attacks can inflict [damage] on an entire community. Just as a serial rapist on the loose sows fear among all women (and their families) and curbs their freedom, so too a hate crime “is meant to terrorize a community, not solely to victimize an individual,” as Judy Shepard, the mother of Matthew Shepard, put it.

“If blacks or Jews or Latinos or Christians — or gays and lesbians — cannot live in a neighborhood or walk the streets without fear of attack, then that climate of fear inhibits the free and full functioning of individuals and society. Laws not only make penalties to inflict on perpetrators who violate societal norms, they also make a statement about what a society values.”

This is pretty good. It’s also, I think, an answer to the charge that hate crimes perpetuate the victimization of the named group. The better argument is that, properly implemented (but will they be?), these laws send the strong message that victimizing Group [N] isn’t tolerated. Over time, this signal can diminish the anti-gay (and other) violence it seeks to address.

I did say earlier that I’m not fully comfortable with hate crimes laws. Although I agree with the Supreme Court that any ‘chilling effect’ on constitutionally protected speech is so minimal as to be of little concern, I do have a concern about prosecutors and jurors becoming overzealous (but this is likelier, I’d bet, with crimes based on almost anything other than sexual orientation or gender identity.) And if there is this tendency to prosecute for political gain, then we can expect the scapegoats to be poor and uneducated people, especially those on the extreme margins, such as transgendered persons of color.

Thus, some radically left groups oppose hate crimes laws, too, and find unexpected common ground with the more conservative voices in the LGBT movement. Here is an especially strong statement of this critical position, expressed by the Sylvia Rivera Law Project in opposition to a proposed New York State bill that included hate crimes protection:

“Hate crime laws are an easy way for the government to act like it is on our communities’ side while continuing to discriminate against us. Liberal politicians and institutions can claim “anti-oppression” legitimacy and win points with communities affected by prejudice, while simultaneously using “sentencing enhancement” to justify building more prisons to lock us up in. Hate crime laws foreground a single accused individual as the “cause” of racism, homophobia, transphobia, misogyny, or any number of other oppressive prejudices.

“Anything that expands the power of a system that damages our communities so severely is against our long-term and short-term interests. Any legal weapon that’s created to make our justice system more harsh and punitive cannot be trusted in the hands of institutions that have shown their prejudices and corruption time and time again.”

Read the full Sullivan article against this letter, and find yourself asking whether the costs are worth whatever benefits might accrue. Reasonable people might disagree.

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