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April 1, 2009

Why are Hate Crimes Worse Than Other Crimes?
FILED UNDER: "LGBTQ Politics"
TAGS: hate crimeshomophobiaLGBT politicsracism
By Trevor

Debates about Hate Crimes Legislation are heating up again, and I want to take a moment to take an unpopular stance by asking an unpopular question: why are hate crimes worse than other kinds of crimes?

Let's start by unpacking their rationale. It seems there are a few principles that underlie hate crimes prohibitions:

1) Deterrence: Legislation against hate crimes would deter people from committing such crimes.

2) Symbolic Violence: Hate crimes are more egregious than other kinds of violence because they are the products of institutionalized prejudice and discrimination, which makes them unfairly patterned against particular groups of people. Therefore, they should be penalized more harshly.

3) Humiliating: Hate crimes are especially humiliating and denigrating, because the rationale behind their being committed is tied so closely to the victim's social group membership.

I have to say, I find none of these reasons particularly compelling. First, we have no evidence (that I'm aware of) to suggest that hate crimes statutes deter people from committing them. I think we could look similarly to the bulk of evidence for capital punishment that demonstrates that even having the penalty of death as a possible consequence for committing crime does not serve to deter or reduce violent crime. So it would make no sense to expect that Hate Crimes legislation would serve to do that.

Second, I really can't wrap my head around the idea that somehow an act of violence motivated by prejudice is somehow worse than the same act of violence motivated for any other reason. Being beaten up for being gay is a truly awful thing. But I do not believe that it is any worse than being beaten up for your money. Both are awful experiences that should be criminally punished, but I do not believe that there are adequate grounds for penalizing bias-motivated crimes more so than other kinds of crime.

Further, I truly believe that these kinds of statutes just further reify social categories and oversimplify complex situations. I'm reminded here of the case a few years ago when the Black gay DJ, Kevin Aviance, was assaulted in New York City while he was leaving the Phoenix club in drag. This was immediately labeled a gay hate crime, but it's clearly not that simple. Kevin's not just gay -- he was also in drag and Black. Sure, the assailants hurled anti-gay slurs. But how did they know he was gay? It's not about who he fucks -- it's about his gendered presentation. And were he white or not in drag, would the same situation have arisen? In other words, a potentially complex scenario gets reduced to homophobia in a "Hate Crimes" world.

Obviously I want hate rimes to end, but I don't think this kind of legislation is the right solution. I'm open to rethinking these ideas, but at the moment I believe that Hate crimes laws should not be the focus of LGBT organizations. It's the wrong battle, with very little to gain if we win. Focus on something more meaningful, like more subsidized housing for HIV-Positive people. Or immigration reform for same-sex couples. Or universal health care. Or employment non-discrimination! Sigh. But not Hate Crimes. What a waste of time, energy, and emotions.

PERMALINK | Posted at 2:53 PM | Post a Comment (9)

9 Comments

Hey, I agree with a lot of what you're saying. I worked really hard on hate crimes stuff a few years back, after getting the s*it kicked out of me in the midst of a busy street. I could see my blood on the sidewalk months later, but that's another story.
Just to add to the confusion - you cited the lack of evidence for a deterrent effect - in all likelihood, that's because hate crimes are very rarely reported in the absence of a hate crime law, so it actually looks like hate crimes laws increase hate crimes, but it all comes back to reporting. In my own case, despite being well connected in the community and a forceful advocate, press conferences and the whole nine, I was unable to get the attack on me classified as a hate crime.

Another issue is the enforcement - having a hate crimes law is no guarantee that it will be applied in any useful way. There was another case where a transwoman was brutally attacked, and there was no doubt it was a hate-motivated assault, but the judge threw out the hate crime charge because after being provoked, she had bent the antenna on her assailant's car. My point being, that it is very hard to get a hate crimes charge to stick outside of the most horrific and senseless crimes on a victim who doesn't fight back - there's a reason that Matthew Sheppard's story ran around the world while the rest of us, whose stories are a lot messier and more complicated, get swept under the rug.

So, having said all that, and feeling from time to time quite ambivalent about hate crimes laws, I nonetheless support having hate crimes legislation. I don't think they work as a deterrent, I don't think the legal application of the laws is in any way satisfactory (and may often work against the victims' interests), but there is one over-riding issue for me, that it makes a political statement - a statement of community values - that hate-motivated violence is unnacceptable, and I think that's worth the other troubling aspects of these laws....

Bill Jesdale | April 1, 2009 4:04 PM

I have one question for you: do you not see a difference between an overly zealous sports fan spray-painting his team's cheer on an opponent's stadium & someone spraypainting a swastika on a synagogue? Both are vandalism using the same tools (spray paint) against probably much the same material (brick, mortar, stucco, etc.), but don't you see a substantial difference between the two?

David in Atlanta | April 1, 2009 8:31 PM

Hey Trevor!

I'm totally open to a discussion about whether penalty enhancement is the best approach to addressing hate crimes, but they are fundamentally different from other crimes, and not for any of the reasons you knock down in your thoughtful post.

The difference that is compelling to me is that bias-motivated crime (a better term, less loaded term) is essentially a form of terrorism. I know that's a charged word these days, but crimes that target people based on status are intended to instill fear in an entire population, not just the immediate victim.

So, take an anti-LGBT bias-motivated crime. Of course the femme gay boy who's beat up is a victim, but so (in a lesser way) are every other gay person who fears walking down the street, fears coming out, fears standing too close to their partner, fears expressing their gender as the want.

And it doesn't matter whether the victim was actually LGBT... If they was targeted because they were perceived to be, it terrorizes LGBT people in the community and can infringe on their right to fully participate in their communities.

That, to me, is what hate crimes different.

Ian Palmquist | April 1, 2009 8:51 PM

Bill: I just get stuck at your last point -- the idea that it sends the message that "hate motivated violence is unacceptable." But that leads back to my primary point: why is it more unacceptable than other forms of violence?

David: I'm speaking primarily here of acts of physical violence, but you raise the important and more messy issue here of symbolic violence and its power. Here you point to an act of vandalism, but obviously would could extend the argument (as Europeans have) to speech in general. You're right to point to a difference in the symbolic power of the act. Your second example would obviously be read as deeply violent in a way that the first (probably) would not. I don't have answers here, clearly. And if I did I'd be a rich man. But my immediate response is to be disinclined to say that the Swastika should be prosecuted any differently than the team's chant. I'm just not convinced that I want (or should expect) the State to decide what kinds of symbolic violence are more meaningfully hurtful than others. I think we can imagine that the enforcement (as Bill has pointed out) would be very uneven, and highly dependent on the subjective positions of the Law Enforcement personnel and Judicial officials. This is a similar problem to SCOTUS's rulings on obscenity against pornography: who gets to decide what's obscene? Developing and legislating clear standards in cases like these is highly problematic, most often because it institutionalizes the standards, morals, and norms of the heterosexual middle class.

Trevor Hoppe | April 1, 2009 8:51 PM

I *get* what you're saying Ian, but I can't help but feel that robberies or even murders of tourists in NYC for their money might equally amount to terrorism making future tourists feel uncomfortable walking alone at night -- and it has nothing to do with a social category like gay or Black. So I'm just highly dubious of the claim that we need the State to differentiate between these kinds of violence.

Again, let me be clear: I'm not saying that these crimes should not be prosecuted. But instead, that it is highly problematic to theorize them as somehow philosophically different in nature than other acts of violence. I think that's progressive hogwash. And even if we accept that they are somehow different, the problems I describe in my previous comment outline why I think it's problematic to desire the State to be the decider on these issues.

Trevor Hoppe | April 1, 2009 9:00 PM

We ask the state to make philosophical distinctions between crimes all the time. That's why, for example, first degree and second degree murder are different. Obviously we disagree, but I think bias-motivated crime is philosophically different, just as premeditation is philosophically different.

The more interesting question to me is what is the most effective way of addressing and preventing this particular type of crime, since the motivations involved are different from other crimes.

You might be interested in the AFSC's take on this... I haven't read this in a few years, but if I remember right they recognize that hate crimes are different but oppose hate crimes laws as they've been generally proposed. Thought provoking stuff.

http://www.afsc.org/ht/d/ContentDetails/i/3502

Ian Palmquist | April 1, 2009 9:33 PM

I'm a bit shocked by this - obviously I'm becoming critically inflexible in my old age. But doesn't your argument basically mean lynching is "just murder"?

Daniel Reeders | April 2, 2009 11:39 PM

@Daniel: I think your lynching example is a bit unfair, but let's break it down here. Obviously lynching Black men in the South carries a kind of symbolic violence that is despicable and outrageously grotesque. So you're right to point to a kind of gravitas in this case that may demand some kind of special response. But I guess the question is: Did we stop lynching with hate crimes laws? Or did we stop lynching by actually investigating and prosecuting its perpetrators based on already existing legislation? It seems that actually the history here is mixed. Anti-lynching statutes were passed at the federal level in the 1920s, but they made no mention of the race of the victim. After all, a fair number of the victims of Klan lynching campaigns in the South happened to be white. But even these laws didn't end lynching -- what ended lynching was the decline of overly violent racism in America. It still exists, but times are nothing like they were in the early 1900s for Blacks in the South.

What we can learn here is a few things: a law was passed that made a symbolic impact, but that did not inscribe the social identity of the victim into law. Let's really think about this possibility for a second. What are the ends of this logic? We already know from the extensive critique done on identity politics that it's underlying logic can lead to frustratingly indulgent lists of identity groupings. So if we're going to protect gays and Blacks from getting beaten up, then way not -- say -- homeless folks? War Veterans? HIV-positive people? Lawyers? Pedophiles? Rapists? In any case, I think you can see my point: inscribing these social categories into law is deeply problematic, and the last thing we want to do.

I think we also don't know how these laws would be enforced, and I'm deeply suspicious of how they might be used to unfairly lengthen the prison sentences of minorities (how's that for fucked up logic?). That is to say, we already know that racial and class minorities are dramatically more likely to be caught for violent acts like assault, armed robbery etc. And they're much more likely to be convicted. So I'm not interested in adding to this trend by potentially lengthening their stay behind bars. (This is the kind of argument AFSC makes in the document Ian linked to previously -- here is the correct link). This may be speculative, but it surely has grounds in the way US criminal justice officials have and continue to unfairly penalize the poor, the non-white, and the homeless.

I'd be far more interested in advocating teaching LGBT history to high school students. That would do a far better job at reducing anti-LGBT stigma than any hate crimes law would ever do.

Trevor Hoppe | April 6, 2009 12:32 AM

Your response is quite utilitarian, and I totally agree with the need to debate the most effective way to deal with racism and homophobia -- and we both acknowledge that just making a law against them isn't gonna do the trick. But there's an issue of principle here as well -- how can the law do justice to the victim of a lynching or a gay-bashing, and I think the issue is whether it's really naming the violence honestly if you charge the accused with "just murder" or "just assault". These are debates that came about after the Holocaust, via the ideas of Hannah Arendt around trying to comprehend the unprecedented -- was it "just murder times six million", or something newer and worse, not just bigger.

Daniel Reeders | April 6, 2009 1:56 AM


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