In the monthly "Ethical Inquiry" series, we examine ethical questions, highlighting a broad array of opinion from journalism, academia, and advocacy organizations. Our intent is to illuminate and explore the complexity of some of the most vexing ethical questions of our time.
Ethical Inquiry: September 2013
What are the Ethics of Hate Crimes Legislation?
Within the last decade, hate crimes have become a regular topic in the mainstream media. Hate crimes are defined by the American Psychological Association as “any felony or crime of violence that manifests prejudice based on ‘race, color, religion, or national origin’ (18 U.S.C. §245),” and are committed against individuals for specific aspects of those individuals’ identities. Hate crimes manifest in “dangerous actions motivated by biases,” such as cross burnings and physical assault.
Hate crimes legislation is of particular interest at Brandeis University due to the scholarship and commitments of Brandeis University President Frederick M. Lawrence – one of the nation’s leading scholars on the topic. His book Punishing Hate: Bias Crimes Under American Law (Harvard University Press, 2002) is one of the key texts on this subject. This summer, an article by Lawrence about hate and the Trayvon Martin case, “To What Extent Did Race Play a Role in the Death of Trayvon Martin?” was published by the Huffington Post.
President Lawrence explained his stance in an interview (June 4, 2013):
I am in support of enhanced punishment of bias motivated violence. There is a close and critical connection between social justice and bias motivated crimes. When you have a multi-ethnic society, there must be a widespread understanding that certain crimes, especially those that impact different groups in society, are more severe.
People belong to our society in all sorts of groups that are core to their identity. They belong 1) as individuals, 2) as members of the nation state, and 3) as members of certain groups based on race, religion, ethnicity, gender, etc. Crimes that divide use along lines of race, religion, ethnicity, gender, etc. not only violate the basic social contract, but violate a special social contract between and among those groups in our society. If we could not punish bias crimes – group on group violence –that would be destructive to the multi-ethnic nature of our society.
President Lawrence’s stance on hate crimes is further explained in his essay “Responding to Hate Crime” in Hate Crime: Issues and Perspectives, volume 5.
In this “Ethical Inquiry” we explore the ethics of hate crimes legislation.
Definitions: Hate Speech vs. Hate Crimes
Hate speech, according to USLegal.com, is “a communication that carries no meaning other than the expression of a hatred for some group... defined in terms of race, ethnicity, national origin, gender religion, sexual orientation, and the like.” While hate crimes are physical assaults which include damaging property, bullying, or harassing, hate speech is a solely verbal attack, not intended to physically harm an individual.
Hate speech is particularly controversial because many argue that hate speech is protected under the first amendment. The United States is unique in its position to protect hate speech as a form of free speech, as explained by this article from The New York Times. In Snyder v. Phelps (2011), the Supreme Court upheld the legality of hate speech, citing the First Amendment as giving the Westboro Baptist Church the right to picket at Marine Matthew Snyder’s funeral. As stated in the Supreme Court decision, ““[S]peech on public issues occupies the ‘ “highest rung of the hierarchy of First Amendment values” ’ and is entitled to special protection.”
In President Lawrence’s book Punishing Hate, he explains that “bias crimes” and “hate speech” are expressly different. He writes: “We must focus on the basic distinction between ‘bias crimes,’ criminal conduct that is motivated by the race or similar characteristic of the victim and deserves enhanced punishment, and ‘racist speech,’ articulation of racist views, which, no matter how unpleasant, is protected.” Hate speech may at time accompany bias crimes, but in itself is not a punishable offense. This Inquiry will focus solely on hate crimes, and will not delve into the controversy that surrounds questions of free speech and hate speech.
Hate Crimes Legislation: An Overview
In the United States, hate crimes legislation has been passed at both the federal level and the state level.
Beginning with the Civil Rights Act, hate crime legislation has increasingly become a part of our nation’s federal legal code. The Crime Victims Institute explains both the provisions and limitations of the Civil Rights Act: “[it] provides that any person who uses force or threats to willfully injure, intimidate or interfere with any person participating in these federally protected activities because of race, color, religion or national origin shall be fined or imprisoned....The 1968 Act, however, did not cover crimes motivated by bias against a person’s gender, sexual orientation, or disability.”
Twenty-two years later, in 1990, the Hate Crime Statistics Act was introduced. Created to better understand the prevalence of hate crimes in America, the Act “requires the Department of Justice to collect data on crimes that are committed because of the victim’s race, religion, disability, sexual orientation or ethnicity.”
The aforementioned act gave the federal government the information it needed to understand the alarming prevalence of hate crimes in America. In 1994, the United States took the first step in promoting tangible hate crimes legislation with the Hate Crimes Sentencing Enhancement Act, as a part of the Violent Crime Control and Law Enforcement Act of 1994. This act “requires the United States Sentencing Commission to ‘promulgate guidelines or amend existing guidelines to provide sentencing enhancement of not less than three offense levels for offenses that the finder of fact at trial determines beyond a reasonable doubt are hate crimes.’”
One of the more recent pieces of federal hate crime legislations to be passed is the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (“The Matthew Shepard Act”). Passed on October 22, 2009 the Act expanded previous federal hate crime laws, accounting for a victim’s “actual or perceived gender, sexual orientation, gender identity, or disability.” The act expanded the federal government’s ability to investigate local hate crimes, and also mandated that the FBI track hate crimes based on gender. Full information about the circumstances which led to the creation of this act can be found later in this inquiry.
While federal legislation plays a vital role in prosecuting perpetrators of hate crimes, most prosecution occurs on the state level, based upon each individual state’s hate crime laws. This interactive map from The Anti-Defamation League allows users to click on a particular state, and explains which offenses / hate crimes are punishable by state law; the comprehensive chart provides state-by-state comparisons of hate crime provision. It also indicates whether the state collects data regarding hate crimes, and whether training for law enforcement personnel is provided.
The coverage varies from state to state. In Massachusetts, for example the following are covered under state law: Bias-Motivated Violence and Intimidation, Race, Religion, Ethnicity, Sexual Orientation, Disability.
Massachusetts does not have provisions that cover gender, transgender, or political affiliation. For a more detailed list of Massachusetts hate crime provisions, visit the Massachusetts page of partnersagainsthate.org. While almost all states have laws which cover race, religion, and ethnicity, many states lack provisions that prosecute victims for hate crimes based on gender, gender identity, transgender, or political affiliation.
Virginia is an example of one such state. In Virginia, the only areas covered under state law are the following: Race, Religion, Ethnicity.
Who is Targeted? What is the Impact?
Why are individuals targeted for hate crimes? As noted above, hate crimes are committed against individuals for specific aspects of those individuals’ identities. As explained in this pamphlet by the American Psychological Association, these aspects include:
- Race/Ethnicity: “In 2007, more than half of the 7,621 single-bias crimes reported to the FBI (50.8 percent) were racially motivated.”
- Religion: “Bias and violence against Arab and Muslim Americans reached its height after the tragic events of September 11, 2001. It is estimated that there were more than 700 violent incidents targeting Arab and/or Muslim Americans or those perceived to be Arab or Muslim Americans in the first nine weeks following September 11th.”
- Disability: “Persons with disabilities are four to 10 times more likely to be a victim of a crime than persons without disabilities.”
- Sexual Orientation: “In 2007, there were 1,460 hate crimes based upon sexual orientation reported to the FBI, of which 59.2 percent were classified as anti-male homosexual bias.”
- Gender Identity
According to the American Psychological Association, in addition to the physical harm of hate crimes - including death - survivors of hate crimes often suffer varying degrees of psychological distress (depression, stress, anxiety, anger, PTSD) based upon the severity, violence, and intensity of the crime committed against them. Victims benefit from counseling, group discussion, and similar interventions, if these resources “are made available soon after the trauma.”
However, the impact of hate crimes often extends beyond the immediate victims. President Lawrence depicts in his book: “There is a more widespread impact on the ‘target community’ – that is, the community that shares the race, religion, or ethnicity of the victim – and an even broader based harm to the general society… Bias crimes cause an even broader injury to the general community. Such crimes violate not only society’s general concern for the security of its members and their property but also the shared value of equality among its citizens…”
This article from the National Institute of Justice poses the main questions that constitute the hate crime debate. The predominant question is whether or not hate crime should be considered a separate class of crime. Further questions include:
- Should hate or bias motivation be considered when the underlying offense, such as assault or vandalism, is already covered by criminal law?
- Do hate crime laws punish thoughts rather than actions?
- What are the ramifications of basing additional penalties upon the thoughts that motivate offenders rather than on the behavior itself?
- Is it possible to determine with legally acceptable certainty the motive behind a person’s criminal acts?
- Do hate crime laws result in more severe punishments for crimes against certain groups of people than for equivalent crimes committed against other groups?
- Are hate crime victims more traumatized than other victims of the same underlying offense because they feel personally targeted?
- Does hate crime increase fear in the community beyond what might exist for similar crimes that are not motivated by hate?
Arguments Against Hate Crime Legislation
Critics of hate crime legislation frequently cite the First and Fourteenth Amendments to the U.S. Constitutions in arguments against hate crime legislation. The Crime Victims Institute depicts: “The government is prohibited from regulating speech unless it has a compelling reason to do so and the law is necessary to achieve those interests. Critics argue that hate crime statutes punish thoughts in violation of the First Amendment.”
One staple argument of the debate is that hate crime legislation infringes upon freedom of speech; individual beliefs and thoughts would be criminalized. In this article from CBN.com, author Jennifer Wishon assesses the repercussions hate crime legislation will have on religious free speech. People like Craig Parshall, chief counsel for the National Religious Broadcasters, contend “there’s no logical point to the amount of intrusion into the First Amendment rights of free exercise of religion or free speech, if this law is passed.”
Linda Harvey, in this article from MissionAmerica.com, contends that the adding of “sexual orientation” to hate crime legislation serves to “silence through intimidation those who may object to [homosexual] behavior.” Harvey explains that “these proposals” would “legitimize the [homosexual] behaviors, not punish the crime.” She goes on to explain that hate crime laws are unconstitutional, and do not prosecute crimes equally.
Some contend such legislation mandates unfair and unequal punishment. This article from ReligiousTolerance.Org explains the viewpoint that the legislation is not needed, stating, “every crime they cover is already illegal under existing state and local laws.” Furthermore, the article states that such legislation is unfair: “American justice is based on the principle that everyone is treated identically. But if hate crimes legislation is passed, then the perpetrators of two identical crimes would receive different sentences, depending upon some characteristics of the law.”
Other sources have expanded on this idea. In “Justice Doesn’t Require Vengeance,” Bill Dobbs, a longtime gay activist and civil libertarian, cites the dangers hate crime legislation poses to “equality before the law” by giving a crime’s motive “a central courtroom role.” He says that by selectively recriminalizing acts based on intent, certain groups are favored: “one person’s broken jaw becomes more important than another’s.”
In “Focus on the Crime, Not the Victim,” Tish Durkin, a columnist for theweek.com, endorses the belief that hate crime legislation “codif[ies] the idea that certain kinds of human life have greater value than other kinds.” Posing the question “Is a maniac who opens fire in a shopping mall less objectionable than a maniac who opens fire in a gay club?” Durkin presents the argument that all human life is of equal value, and ought to be treated as such.
This article from The Wall Street Journal Law Blog explains how hate crime legislation may violate the “equal protection under the law” portion of the 14th Amendment. Nat Hentoff from Real Clear Politics, states that hate crime legislation “violates the 14th Amendment’s equal protection under the laws for individual Americans by setting up a special collective class of victims whose assailants, when convicted, will be given extra punishment for crimes... Doesn’t this make lesser citizens of their victims?”
Arguments For Hate Crime Legislation
Many individuals argue that hate crime legislation is, in fact, necessary, and contend that hate crimes represent a higher level of criminality and are a special class of crime.
In his book Punishing Hate: Bias Crimes Under American Law, (Harvard University Press, 1999) Brandeis University President Lawrence contends that hate crimes legislation (he prefers the term “bias crime”) is beneficial “[b]ecause racial harmony and equality are among the highest values held in our society, crimes that violate these values should be punished more harshly than crimes that, although otherwise similar, do not violate these values.... The punishment of bias crimes … therefore, is necessary for the full expression of commitment to American values.”
In “Why We Need Bias Laws,” Wade Henderson, President and Chief Executive of The Leadership Conference on Civil and Human Rights, explains that the “very personal” nature of hate crimes elevates them to a higher level of criminality, and should be punished more severely.
An Effective Deterrent
In “Why We Need Bias Laws,” Henderson explains the efficacy of hate crime legislation, stating that social behaviors are shaped by the law – and that “strong enforcement of [hate crime] laws can have a deterrent impact.”
Ensures Adequate Protection and Enforcement
The Human Rights Campaign expresses the belief that increased federal government involvement in hate crime prosecution is beneficial. Citing the Matthew Shepard case as an example, the article attests, “The act permits the government to provide grants and assistance to state and local authorities investigating and prosecuting hate crimes. The need for this provision is real... The act ensures that local law enforcement will have the resources it needs to address hate crimes.”
Within the last decade there has been a lot of attention paid to crimes committed against gay and lesbian individuals. Some believe that hate crime legislation will provide gay and lesbian individuals with the protection they need. In this article from AmericanProgress.org, Winnie Stachelberg explains the necessity for hate crime legislation for queer individuals. Stachelberg cites multiple statistics explaining how vulnerable queer individuals are to hate crimes. She states, “The United States cannot continue to allow cases of violence based on bigotry to go under addressed and under-reported.”
The legislation is fair
Proponents also argue that hate crimes legislation would not limit free speech, because “a criminal act must first be committed... in order for hate crime legislation to be applied.” Senator Chuck Robb (D-VA) commented: "This legislation does not allow individuals to be prosecuted for their hateful thoughts, rather it allows them to be punished for their hateful acts. Willfully inflicting harm on another human being based on hate is not protected free speech."
Some individuals argue that hate crimes occur much too frequently to be reported and prosecuted in a just manner. Some individuals also argue that what exactly constitutes a hate crime is unclear, and prosecution for such crimes is thus unfair. This Fact Sheet from the CIVITAS Institute for the Study of Civil Society acknowledges these claims, and offers five strategies to (a) help combat hate crime, and (b) demystify the hate crime legislation/prosecution process. The Institute recommends:
- “Standardizing definition of hate crime and working more on pre-emptive strategies”
- “Building on local partnerships by recording and responding to hate incidents”
- “Raising awareness... amongst officials, victims, and communities”
- “Incremental changes made to certain legislations that eliminate confusion for hate crime sentences”
Recent Cases that have Involved Hate Crimes Accusations and/or Legislation
The Facts: Matthew Shepard went to the University of Wyoming. On October 6, 1998, he was offered a ride from the Fireside Lounge by Russell Henderson and Aaron McKinney. The two men drove to a secluded area where they robbed, whipped, and tortured Shepard. They tied him to a fence and drove away, leaving him to die. Shepard was discovered 18 hours later, hardly alive. He was pronounced dead on October 12. The prosecution argued that McKinney and Henderson tortured Shepard because he was gay. This article from the New York Times outlines the details of the case.
The Facts: James Byrd, Jr. was an African American man who was murdered on June 7, 1998. Three men, Shawn berry, Lawrence Brewer, and John King, chained Byrd to their pick-up truck by the ankles and dragged him along an asphalt road for three miles. Byrd died by hitting a culvert, which decapitated him immediately. His murderers were assumed to be white supremacists. This article from the New York Times explains the details of the case.
The Legislation: Congress subsequently passed the aforementioned Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (“the Matthew Shepard Act”). This Op-Ed in the New York Times praises this legislation, saying that it would be “an important step forward in protecting all minorities from violence and a tribute to a young man whose life was cut short by bigotry.” The article also explains that the legislation would underscore the “seriousness and horror” of hate crimes.”
Alexander Cockburn expresses the belief that the Matthew Shepard legislation is “a ham-handed attempt to right injustice by establishing different legal treatment for some classes of crime victims.” Claiming that the legislation says “Goodbye to equality under the law,” Cockburn advocates for legislation that gives equal sentencing for equal crimes, regardless of those crimes’ motivations.
The Facts: Tyler Clementi, an 18-year-old student at Rutgers University in New Jersey, committed suicide by jumping off the George Washington Bridge on September 22, 2010. Dharun Ravi, Clementi’s hallmate, used iChat and Clementi’s webcam to spy on Clementi from another room without Clementi’s knowledge. The video he obtained showed Clementi kissing and having sex with an older man. Ravi made Clementi’s interaction with the older man public. Ravi was charged with, and found guilty of, invasion of privacy, tampering with evidence, and of having violated New Jersey’s “bias intimidation” statute – a hate crime. This article from The New Yorker gives a very detailed summary of the entire case, including profiles of Clementi and Ravi, and an analysis of the crimes committed.
Ravi contends that his spying was not done out of hate. He said, “I want the Clementis to know I had no problem with their son. I didn’t hate Tyler and I knew he was okay with me.”
Boston Globe columnist Jeff Jacoby refers to Ravi’s crime as a “boorish dorm-room prank,” stating that “hate crime laws... have always been problematic.” Jacoby argues that hate crime laws punish thoughts and opinions, and that “criminals should be prosecuted with commitment and vigor no matter what their motivation was.” Jacoby concludes his article by questioning whether Ravi’s offense ought to receive “the same sentence we give to rapists, pedophiles, and attempted murders.”
In this Op-Ed in the New York Times, Emily Bazelon expresses the sentiment that 10 years in prison is too long a sentence “for a 20-year-old who’d never been in legal trouble before.” Arguing that hate crime legislations target teenagers “who acted meanly, but not violently,” Bazelon states that a ten-year sentence will “set an alarming precedent of disproportional punishment... for ‘stupid kid’ behavior.”
On May 21, 2012, Ravi was sentenced to 30 days in jail for his actions. This article from the New York Times explains that “the sentence surprised even many who had called for leniency.” The judge told the court that “I do not believe [Ravi] hated Tyler Clementi... I do believe he acted out of colossal insensitivity.”
The Facts: An even more recent case that led to accusations of a hate crime – though was not prosecuted as hate crime – occurred on February 26, 2012, when 17-year-old Trayvon Martin, an African American male, was shot by George Zimmerman, a 28-year-old multi-racial Hispanic American male, in Sanford, Florida.
In a matter of weeks, the circumstances of Trayvon Martin’s death case garnered national attention. Some say that Martin was an innocent child whose shooting was racially motivated. Others contend that shooter George Zimmerman was merely doing his job as community watch coordinator, and reacted in self-defense when approached by Martin.
Zimmerman was eventually charged with second-degree murder; he asserted that the shooting was in self-defense. He was found not guilty. An archive of related news and reactions can be found on NPR.org.
Hate Crimes Legislation Around the World
This “Ethical Inquiry” focuses primarily upon hate crime legislation in the United States. There is a great deal of variety regarding the handling of hate crimes abroad. Some of the approaches:
This report card from Human Rights First.org analyzes the existence and effectiveness of hate crime legislation in France. In 2003 France drastically amended its criminal code, “making a racist motive an aggravating factor in punishing certain specific crimes” committed based on the victim’s ethnic group, nation, race, or religion. Later that same year, the code was amended to include sexual orientation, “real or supposed.” Such crimes will result in “specific penalty enhancements,” but are not considered their own class of crime.
This brief from The Human Rights Watch Organization details Germany’s lack of legislation regarding hate crimes. While many countries in the European Union penalize hate crimes as separate, harsher offenses, Germany “has no separate category of offenses for ‘hate crimes’ involving violence. Nor does it explicitly provide higher sentences for them.” However, the German courts can “take hate motivation into account during sentencing.” This article assumes the position that Germany’s lack of legislation is “not fundamentally flawed,” but could use some improvement.
While German legislation does not punish hate crimes, hate speech is a matter taken very seriously in Germany. Volksverhetzung (“incitement of popular hatred”) is an aspect of German criminal law that “bans the incitement of hatred against a segment of the population.” Upon committing Volksverhetzung, a person may be imprisoned for up to 5 years. This German law is typically applied in cases of anti-Semitic speech.
The World.org explains the challenges South Africa faces in persecuting individuals for committing hate crimes based on gender identity and sexual orientation. While with regard to gay rights South Africa is “among the most progressive countries in the world... explicitly ban[ning] discrimination based on sexual orientation,” homophobia still exists in the justice system. Certain prison officials have practiced “corrective rape” on lesbian women in an attempt to “cure” them straight. LGBT organizations have been hoping to strengthen punishment regulations with the hopes of protecting queer individuals.
While most Western countries have some semblance of hate crime legislation, most non-Western countries have no hate crime laws whatsoever. Some of these countries include Turkey, Albania, Cyprus, and Estonia.
The debate continues about how to define a hate crime, and if it is appropriate to implement specific legislation targeted at this category, however it is defined.
Whatever your perspective on this issue, there are resources available to anyone who has been the victim of a hate crime or discrimination:
Reporting a Hate Crime or Discrimination
If you or someone you know has been the victim of a hate crime or discrimination, you may do one of three things:
- Contact Local FBI Office: http://www.fbi.gov/contact-us/field
- (FBI) Submit info electronically: https://tips.fbi.gov/
- Contact State/Local Agencies: http://www.justice.gov/crt/legalinfo/stateandlocal.php
If victimized at Brandeis University, contact The Department of Public Safety immediately. They are best equipped to respond to your needs.
Additional Resources on the Topic of Hate Crimes and the Law
These are some of the key works in the field of hate crime legislation:
- Hate Crimes: The Rising Tide of Bigotry and Bloodshed (1993): Jack Levin and Jack McDevitt
- Bias Crime: American Law Enforcement and Legal Responses (1991): Robert J. Kelly, ed.
- Hate Crimes Law (1997): Lu-in Wang
- Hate Crimes: Criminal Law and Identity Politics (1998): James B. Jacobs, Kimberly Potter
- Periodicals published by The Southern Poverty Law Center and the Anti-Defamation League
- Punishing Hate: Bias Crimes Under American Law (1999): Frederick M. Lawrence
Have suggestions for additional content that looks at the ethical issues surrounding hate crimes legislation? Let us know:
- Comment on this "Ethical Inquiry" on the International Center for Ethics, Justice and Public Life's Facebook page.
- Send an email.
- And follow the Ethics Center on Twitter: @EthicsBrandeis.