We recently saw some of the quickest and most efficient action I’ve seen in a while when Philadelphia’s City Council unanimously voted (17-0) to pass an ordinance that imposes punishments for violent attacks based on gender identity, sexual orientation or disability status. Mayor Michael Nutter summarily signed it into law. The measure was in response to the vicious antigay attack perpetrated this past fall, when as many as 15 people physically assaulted a gay couple in Rittenhouse, hurling antigay slurs.
Then, in October, Jessica Kelly and Bonnie Moran were returning from a party on Halloween night in Mayfair when they were attacked by yet another mob of people, both suffering injuries. The attack started after someone in the mob yelled, “Look at those ugly lesbians”; while the women were perceived to be lesbians, they were simply two platonic friends who happened to be walking arm in arm.
The mainstream LGBT movement often disagrees within itself and even fractions off to its own detriment on political and social-justice issues, but one thing almost all agree on is that hate-crime laws are helpful in protecting the LGBT community and that we are safer because of them. Groups who oppose hate-crime legislation tend to be Republican, highly conservative and homophobic, and their opposition is largely based in the fear that, if such legislation is enacted, their beliefs will be stymied. With that said, support for hate-crime laws is not universal among liberals. There are several LGBT groups that do not support them, such as the Sylvia Rivera Law Project. Despite which side you find yourself on, the basic questions remain: Do these laws work and do they actually deter violence against LGBT people?
There are two main reasons for opposition. Jurisprudentially, the one I’m most fascinated with is the one advocated by the American Civil Liberties Union. The ACLU has long objected to many hate-crime laws, contending they are predicated on punishing not only action, but on punishing constitutionally protected free speech. One could argue that hate-crime laws are unconstitutional because they criminalize motive, and the only way to prove motive is to focus on the criminal’s speech, thought and associations, all of which have been traditionally protected in the United States. As long as hate-crime laws criminalize motive (the reason an individual commits a criminal act), they will criminalize constitutional forms of expression. This country has long held that even the most objectionable beliefs are constitutionally protected. Not to mention, this is a slippery slope down a very steep slope, and no one knows where that slope ends. If someone harbors hatred toward obese people and hits an obese person walking down the street, why is this not a hate crime? I bet the person who was hit for no other reason than he/she is obese will feel like it should be.
A way around this would be to criminalize intent instead of motive. This may seem like a nuanced difference but it’s actually a very significant difference; “intent” is the desired result for a given action. States are constitutionally allowed to provide harsher sentences based on varying levels of intention, if that intention causes a greater harm than a crime committed with a less-harmful intent. By focusing on intent, hate-crime laws would no longer specifically target constitutionally protected expression and they would more successfully punish criminals that intend to intimidate, harass or target a victim because of his or her membership in a group or community.
Moreover, some people believe that hate-crime laws expand and increase the power of our unjust and corrupt criminal-punishment system and that, like other criminal-punishment legislation, are used unequally and improperly against communities that are already marginalized in our society. For instance, in places where both racism and homophobia run rampant, these very laws that are meant to protect the LGBT community are sometimes used against us. In Texas, an African-American lesbian was charged with a hate crime when she got into a fight in a gay club with a gay man.
There are two primary arguments made by proponents of hate-crime laws. The first is that their enhanced penalties work to deter attacks on minorities. The second is that they are a fair and just way of dealing with criminal activity. Both seem like appealing arguments, but do hate-crime laws actually deter crime? We’ve already determined that the death penalty is not a deterrent to murder, so what makes us think that hate-crime laws will be? There have been a few studies thus far and none have demonstrated that they deter crime.
The increase in hate crimes is the result of growing social intolerance, prejudice and bigotry. Nevertheless, in an attempt to satisfy the social desire for a solution to the problem of a rising tide of hate-crimes, many states employ poorly worded hate-crime statutes that raise a series of potential constitutional problems. In my opinion, combating hate crime will require changing public attitudes and truly getting to the root of the hatred. The solution is not arresting people — often young people and even more frequently minorities — and placing them, for long periods of time, in prisons that make no attempt at rehabilitation.
The only way we can move beyond a culture of violence is to work within communities, schools and neighborhoods to examine the racial, economic and psychological reasons that are often underpinning these crimes. Hate-crime laws do none of this.