Are Hate Crime Laws a Good Idea?
Posted on May 31, 2017
There are three main arguments against hate crime laws. I think the two most commonly used by civil libertarians are just plain wrong. I think a third argument has more weight.
1. Hate crime laws are said to outlaw hate speech, which ought to be protected.
Nonsense. A hate crime refers to a violent act with intent to intimidate a much larger class of persons. Speech acts are indeed potential evidence of intent. But all felonies are defined in part by intent, and speech acts are always potentially relevant for proving intent; indeed, speech acts are commonly the main available evidence of intent.
In any case, generalized hate speech is not sufficient grounds to prove intent for a hate crime. There must also be a direct showing that hate motivated that particular violent act.
2. Hate crimes are said to be redundant with laws against the underlying violent act.
Nonsense. Hate crimes have much wider and much worse effects than simple violence. They do in fact tend to demoralize and terrorize large groups of people.
Thus: hardly anyone would seriously argue that genocide should be considered the same crime as mass murder–even though the only difference is one of intent.
3. Hate crimes are said to go unenforced unless the victim belongs to a group receiving substantial public sympathy and the perpetrator does not. This argument has some force.
Thus, in the somewhat similar case of laws against against hate speech, it does in fact turn out in practice that hate speech laws are most often enforced against minorities speaking out against majorities, rather than the other way around.
However the two situations are not the same. Speech should not be outlawed at all, so there are always threshold questions of prosecutorial discretion that tend to bias the out comes. Violence on the other hand usually does lead to prosecution.
Nevertheless it is clear from various data that hate crime laws in the US are vastly underenforced, especially so in cases where the victim is “controversial”–e.g. either gay or Muslim.
Bottom line: I support hate crime laws. In cases where they go unenforced, the public nature of violence prosecutions means that activists can discover such cases and use them to pressure police to be less biased. Also criminalization is the only way we are ever going to get some solid official statistics (however incomplete) documenting the serious nature of every-day terrorism in the U.S.
In addition, legislators who oppose hate crime laws tend to out themselves as bigots and make their opponent’s work a little easier in the next election.