The Pernicious Protection of “Hate Crime” Laws

It was only a matter of time before state legislatures jumped onto the bandwagon of “free expression” protection measures. Truly, laws like Utah’s recent bill to include political expression as a protected class in the state, have nothing to do with free expression itself. Instead, they are an outgrowth of the — largely false — paranoia that conservatives have become a marginalized class, derided by the media, excluded by the academy, and ignored on dating apps.

To recap that whole debate — studies have shown there is no significant bias against conservatives on campus, and I don’t think I have to tell you why it doesn’t matter if GOP bros can’t get laid. Really, this debate is a confusion of terms. Free speech is something I deeply value, but counterspeech isn’t censorship, and no one has a right to be given a platform for their speech — especially if that platform is tax-funded, and the speech is bigoted and hateful. If people don’t like you because your ideas are abhorrent, that’s simply not the same as being subjected to systemic racism or fearing for your life as a queer person. You chose to promote hateful ideas.

There are two deeper issues at hand here though. It’s not just that political persuasion doesn’t fit with other protected classes — it’s that the idea of a protected class and hate crime laws in general, is deeply flawed. The first issue is a practical one: do hate crime laws help people who actually are marginalized? The second is philosophical: what does the existence of hate crime laws imply about personhood, identity, and the right to self-defense?

If someone starts threatening me, maybe on Twitter, saying they’re going to kill my cat because I hate cops, that’s certainly a problem, but it would be a problem regardless of their reasoning. If they wanted to kill my cat because I didn’t like their band, or because they hate cats, it would be all the same to me. Even more so if they actually went through with it. The fact is, we already have mechanisms for dealing with this shit. If the legal system works at all — and remember hate crime cases are adjudicated through this same system — it’s going to punish this guy if he does kill my cat, or give me a way to stop him, whether through a restraining order, civil damages suit for harassment, or one of the other many existing mechanisms. Differentiating between these two crimes leads to a whole slew of issues.

Let’s assume we’re talking about the clearest cut case: a racially motivated murder. Even in this case, ethically and legally speaking, differentiating between the murder of one person and another is incredibly problematic.

To start with the legal issues: the only way that this is a meaningful legal distinction is if the intensity of the motive is different. Having a different motive listed does nothing legally speaking, rather hate crime laws instruct courts to include these factors as “intensifiers,” which the court already considers as a matter of course. In other words, the legal system already accounts for the intensity of motive in sentencing and could factor in racial or other bias as relevant without a single law on the books. This mechanism is sufficient to deal with any calls for increased punishment that some might think necessary to see justice done (putting aside debates about retributive versus restorative justice for now).

But further from that, differentiating punishment based on motive is a bad precedent to begin with. Our laws are based on the philosophical premise that there is no good reason to kill somebody beyond the defense of self and others (our current system often includes defense of property too, but let’s put that debate aside as well). This not only upholds the idea of equality before the law that undergirds our legal system but — in theory — fosters a respect for all human life. When we differentiate between different human lives like this, we undermine that principle, and — importantly — we give the state the power to set that hierarchy of lives. Right now, the state line is that killing someone for bigoted reasons is worse than doing so for other reasons. But, as we can see with Utah’s recent law, this hierarchy is in no way set and is entirely and increasingly dependent on public political will.

Finally, this procedure is problematic because it requires us to put the identity of the victim on trial with the perpetrator. In order to determine if this was a hate crime, we must know whether someone identifies as part of a hated group. This puts the ability to define someone into the hands of the court when that power should only ever be in the hands of the individual themselves. One issue with this is that it can lead to identifying people in ways which they would not choose. In order to find someone guilty of a hate crime, we have to say that, for instance, the victim of a race-based crime was definitionally black even if that person has a variety of ethnic influences and identifies otherwise. This means that, in order to receive justice, we’re requiring people to identify in ways they wouldn’t choose to.

This can also put some in a position that leads to further discrimination rather than less. Some minorities have good reason to hide their status as a minority, but by putting it on trial we bring it into the open and put them in danger. An intersex person may hide that part of their identity to avoid discrimination, but a trial like this requires them to put themselves in that further danger in order to receive justice here. Finally, in order to convict a court would need to say that the identity of the victim was either X or Y and therefore part of the targeted and protected group, or not. This fundamentally misunderstands how identity functions for individuals. In many cases, people are not definitively X or Y but some mix and spectrum of ways of being. This is especially true of LGBT people who often recognize the fluidity of their identity and don’t want it to be defined in these ways. Again, putting the power to define identity in the hands of the state further exposes marginalized people to state repression.

But what if these laws do actually help people by dissuading hate crimes? Not so. Nominal protection measures like these instead serve to undermine real protection. By paying lip-service to the protection of minorities, hate crime laws undermine other efforts at protection and use up valuable policy space. Many assume that hate crime laws have done something meaningful to solve oppression and so after they pass, people are less worried about, willing to fight, and on the lookout for oppression. There are two primary ways in which this occurs.

Most problematically, an assumption of protection undermines claims of self-defense by afflicted minorities. When the state makes such bold claims against oppression public opinion changes so that minorities are no longer expected to be in situations where self-defense is necessary. The best example here is the CeCe McDonald case in which a transwoman was attacked in a restaurant bathroom and fought back killing one of her attackers. Later in the trial, the fact that Minnesota has hate crime laws was used by the attackers’ lawyers to back up the claim that McDonald did not need to act in self-defense and should have been sufficiently protected by the police. The jury bought it and convicted McDonald. But the police weren’t on their way and didn’t come until she had injured someone else. The police, it turns out, make a habit of ignoring crimes against marginalized people.

Secondly, passing and promoting hate crime laws uses up political will and political attention that would be better spent on other efforts to protect minorities. A few things to remember here: Hate crime laws add no new protection to minorities because assaulting, harassing, murdering, raping and otherwise abusing them is already illegal. Hate crime laws merely add an intensifier once these things have occurred. Political will for helping minorities is always limited because the issues of smaller less powerful segments of the population have a more difficult time making it into policy in the first place, so we don’t have endless chances to try things out.

Rather than protecting minorities, police and other figures of authority (parents, teachers, probation officers) are more likely to abuse them, especially when it comes to communities like trans and intersex people. So, looking to the police and the courts as a means of protection is, frankly, laughable on face.

Most perniciously, hate crime laws can inadvertently intensify bigotry in areas they are passed. These laws embitter those who are convicted under them towards these communities by moving the blame in the mind of the convicted from the government to the protected group. This means that perpetrators now frame their “misfortune” as the fault of minority communities rather than the government and this intensifies their hatred of that group. This matters a lot right now. Remember that debate about censorship and right-wingers’ free expression? That debate is happening in part because bigots now associate marginalized groups with the powerful boot of the state. This is, of course, an illusion. But it explains some of the victimhood culture among right-wingers and the why they have the idea that when marginalized people complain about speech or engage in counterspeech it amounts to censorship. The state gives lip-service to enforcing the demands of the marginalized, and so the bigot feels oppressed. They’re just not in on the joke though: both state agents and people who are actually marginalized know this support exists in text only.

Furthermore, attaching the name or description of target groups to these laws increases the pride with which hate groups and hateful people view crimes against these groups. By focusing the action against these communities, those who oppose them are better able to target their activity. Since they know that if caught, they will be recognized for “combatting” those they see as the problem. White nationalist groups in part use overwrought iconography and visible strategies like marches and flags because of the attention it brings them, and hate crime designations feed this sick need for recognition as well. They want the attention that the hate crime designation gives them, and this makes them into martyrs for their cause rather than just another convict.

In short, hate crime laws don’t keep anyone safe, may be creating more issues for marginalized people, and lead to a dangerous precedent which allows the state to create identity-based hierarchies of personhood and victimhood. It doesn’t matter that these hierarchies were motivated by a desire to protect minorities — there’s no assurance they will continue to be used this way. Utah’s inclusion of right-wingers as a protected class shows us exactly how this shift could happen, and it’s just the beginning.

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