A Feminist Liberal Approach to Hate Crime Legislation

ABSTRACTMinimal studies have investigated individuals’ evaluations of antigay hate crimes and hate crime legislation simultaneously, with most research focusing on one or the other. In a sample of 246 heterosexual undergraduates, the present study found that evaluations of antigay hate crimes and hate crime legislation were unrelated. Higher social dominance orientation (SDO) and crime control orientation scores were associated with more positive evaluations of antigay hate crimes. Positive evaluations of hate crime legislation were associated with more positive attitudes toward gay men and lesbians. We also found that the relationship between SDO and evaluations were mediated by crime control beliefs (for hate crimes evaluations) and antigay attitudes (for hate crime legislation evaluations). The present findings have possible implications for the manner in which organizations advocate for the extension of hate crime legislation to include sexual orientation.

Hate crime is a problem in many countries around the world. Scholars define hate crimes as unlawful conduct directed at different target groups, which can include violent acts, property damage, harassment, and trespassing (see Hate crime: An emergent research agenda. Annual Review of Sociology 27.1 [2001]: 479–504). Hate crime perpetrators target their victim’s race, religion, ethnicity, sexual orientation, gender, or disability, but also a variety of other characteristics. Several social movements (e.g., the civil rights movement, women’s movement, and LGBT movement) laid the foundation for anti-violence movements and placed the hate crime discourse on the political and legislative agenda. One way to better understand hate crime is to explore how governments in different parts of the world address the issue of crimes motivated by hate or prejudice. Targeted laws and policies transformed hate violence from ordinary to extraordinary crime (see Hate crime policy in western Europe: Responding to racist violence in Britain, Germany, and France. American Behavioral Scientist 51.2 [2007]: 149–165). Different countries implemented hate crime legislation in order to condemn crime committed due to prejudice or bias against an individual or group of people, introducing such legislation during different periods in time. The United States emerged as the leader of hate crime policy approaches, implementing legal responses to prejudice and bias in the early 20th century. The United States was also the first country to circulate the term “hate crime” during the 1980s (see Hate crime: An emergent research agenda. Annual Review of Sociology 27.1 [2001]: 479–504). Europe and the Asia-Pacific region followed suit in implementing their own responses to hate crime. The diversity of hate crime legislation in different countries makes it difficult to combine the legislative contexts under a common framework. A controversial debate exists around the need for a separate set of hate crime legislation. Scholars dispute the seriousness of the hate crime offense, the possibilities of proving motivational aspects of the hate crime, criminalizing hate, and introducing more severe punishments. They also debate the utilization of the civil versus the criminal code, the inclusion of different protected categories under hate crime legislation, the symbolic character of hate crime, and the social and political impact of hate crime legislation. This bibliography reviews key resources on hate crime legislation, including its historical context, its globalization, and the socio-criminological debate around hate crime legislation.

Hate crime legislation has sparked substantial political controversy and scholarly discussion. Existing justifications for hate crime legislation proceed on the premise that the rationale supporting such legislation must be found either in the greater gravity of the wrongdoing involved or in the perpetrator's greater degree of culpability. This premise stems from a fundamental theory that dominates criminal law scholarship: the wrongfulness-culpability hypothesis. The wrongfulness-culpability hypothesis posits that the only two grounds that may justify disparate treatment of offenses are the greater wrongfulness of the act or the greater culpability of the perpetrator. Yet, all attempts to demonstrate that hate crimes are more wrongful or morally reprehensible than other crimes have failed to carry the day. This Article challenges the dominance of the wrongfulness-culpability hypothesis and proffers an alternative that supports bias crime legislation: the protection paradigm. The protection conceptualizes protection against crime as a good produced by criminal law and thus requires that it be distributed in an equal manner. Specifically, it imparts a duty on the state to equalize individuals' vulnerability to crime. An individual's vulnerability to crime can be defined as her expected harm from crime--that is, the probability of harm multiplied by its magnitude. A state may address the problem of vulnerable victims in one of two ways. First, it may impose harsher sanctions on those who commit crimes against vulnerable victims. Second, it may devote more resources to the identification and prosecution of individuals who attack such victims. When the latter tactic is unfeasible for some reason, equalizing protection against crime through the imposition of harsher sanctions may be the only way by which the state can provide vulnerable victims with greater protection and thus equalize their vulnerability to that of other potential victims. The distribution of protection does not require absolute equality in expected costs of crime to the victim. Vulnerability to crime is a function of myriad factors such as wealth, age, and attitude towards risk, life experience, and physical and intellectual prowess. Moreover, disparities in vulnerability to crime often depend on the precautions taken by the victim herself. The state cannot be reasonably expected to annul all disparities in the vulnerability of different potential victims of crime. This Article argues, however, that at a minimum the state ought to annul disparities that stem from certain personal characteristics of victims, such as race, gender, religion, and sexual orientation. This Article also shows that the explanatory power of the fair protection paradigm ranges far beyond the context of hate crimes. The protection can explain, for instance, why crimes directed against particularly vulnerable victims, such as the elderly and the disabled, are often punished more severely than crimes directed against less vulnerable ones. Properly understood, therefore, hate crime legislation is part of a larger scheme of providing protection against crime. Recognizing the right of victims to equal protection from crime makes it clear that hate crime legislation is consonant with the goals of criminal law. Hate crime legislation is merely one essential step towards a more egalitarian provision of protection against crime--a step which is congruous with the broader goals of the criminal law system.

Supporters of hate crime legislation suggest that the primary reason for the codification of hate crime laws is “to send a strong message of tolerance and equality, signaling to all members of society that hatred and prejudice on the basis of identity will be punished with extra severity.” However, hate crime laws may actually be accomplishing the opposite effect of tolerance and equality because they encourage U.S. citizens to view themselves, not as members of our society, but as members of a protected group. The enactment of hate crime legislation at the federal and state levels has led to unintended consequences and unfair practices. Today, the controversy regarding the effectiveness of hate crime laws is debated, and people question whether this type of legislation is beneficial to society. This article will candidly reevaluate hate crime legislation. Part II will provide the definition of the term “hate crime” and the theoretical justification for enhanced sentencing involving discrimination-based conduct. Focus will be placed on data that disproves the theory that hate crime laws reduce or deter future hate crimes. It will also explain the underlying reasons for the enactment of hate crime laws, such as the media’s role and political influences, and it will present several of the misconceptions associated with hate crime legislation. Part III will present the unintended consequences associated with the enactment of hate crime statutes, including constitutional violations. It will also explain why hate crimes are rarely prosecuted, and will focus on the inconsistency, redundancy, and arbitrary usage/application of hate crime legislation. Part III will also present an individual’s response to the negative, unintended effects of hate crime legislation. Part IV will determine that hate crime legislation is not cost-effective. Part V sets forth a recommendation on improving community efforts to educate or reeducate citizens on respecting diversity. Finally, the article analyzes hate crime laws from supporting and opposing viewpoints and concludes that there is no need to separate hate crimes from other types of crimes as a means to promote a more tolerant, equal, and stable society.

Prejudice motivated crime (PMC) legislation varies across different jurisdictions in Australia. Some use criminal codes and civil codes, while other laws are based in anti-discrimination legislation. These variations, I propose, influence patterns of victimisation and the willingness of citizens to report PMC across different Australian states and territories. I use Leximancer, a text analytics tool, to explore hate crime legislation in different Australian jurisdictions. Drawing on the Australian National Security and Preparedness Survey (NSPS), I explore the factors that help explain differences in victimisation of crime and PMC in Australia, as well as variations in reporting behaviour. From a national probability sample of 4256 respondents, I discuss jurisdictional differences between victims of PMC and victims of non-PMC. I also compare PMC and non-PMC victim groups with people who have not been victimised. My thesis explores differences in hate crime legislation and the context surrounding the different laws in Australia and how these laws shape patterns in the reporting behaviour of victims. I hypothesise that there are a number of factors that influence variations across the states and territories in Australia, particularly perceptions of the legitimacy of state institutions (police and government), as well as perceptions of the legitimacy of the law. My findings suggest that hate crime victims are more likely to be foreign born and have lower perceptions of police legitimacy. My findings also indicate that people not identifying as an Australian citizen and people with lower perceptions of police legitimacy and less willingness to cooperate with the police are less likely to report crime incidents to police. My findings suggest that the politicisation of hate crime legislation plays an important part in the legislative and reporting context of hate crime victimisation and that there is a continuing importance of fostering PMC victims’ confidence and trust in the police.

This article undertakes a detailed examination of the justifications advanced for the national and international rush to enact and apply hate and bias crime legislation as an answer to the tragically brutal expressions of racial animosity, bigotry, homophobia, and misogyny that continue to remind the Western World of its inability to protect its citizens from those who do not share its egalitarian ideals. In undertaking this project, we seek to synthesize and critically evaluate over a decade's worth of scholarship on the wisdom of the enhanced penalties imposed by hate and bias crime legislation. We further seek to demonstrate that this literature, to date, has sadly failed to provide both an adequate moral justification and an acceptable doctrinal framework for this politically popular form of state action. The article is divided into four parts, corresponding to the four principal rationales for hate/bias crime legislation that have advanced over the past decade or more. Part I considers the - the claim that the harms perpetrated by offenders who are motivated by group-hatred or prejudice represent wrongs more serious than those perpetrated by defendants who commit the same offenses with different motivations. We work through an extensive catalogue of harms that are commonly claimed to be uniquely associated with hate- and bias-motivated crimes: elevated physical and psychic injuries to principal victims; wide-spread fear within the principal victim's community; a diminished faith in the legal system and an associated instability within the larger social order; vigilante acts of retaliation by victims and their communities; the publication by such criminal acts of harmful messages corruptive of the moral order; and the associated, but independent harm of the state being complicit whenever it fails to express in law the moral outrage that such statements properly incite. As we demonstrate, even if social science ultimately vindicates the empirical claims made by those who propound the various wrongdoing theses, there are conceptual and moral problems that prevent these arguments from justifying the blanket sentence enhancements imposed by existing hate and bias crime legislation. Part II takes up different versions of what we call the - the thesis that the disrespect for communities expressed by acts of group-hatred and prejudice properly invite denunciation by the state in the form of elevated criminal penalties. As we argue, either the expressivist thesis is redundant with the wrongdoing thesis, and so invites the problems articulated in Part I; or it depends upon a free-standing expressivist theory of punishment, and is, for that reason, unsustainable. Part III considers what we call the - the thesis that hate and prejudice constitute uniquely culpable mental states that justify penalties more severe than are meted out for other forms of viciousness. We demonstrate in this Part that if hate and bias are construed as culpability criteria, then hate/bias crimes are novel doctrinal inventions that are more at home within character-based theories of the criminal law that are best justified by political perfectionism, as opposed to act-based theories that are more in harmony with classic political liberalism. Finally, Part IV takes up the equality - the thesis that the enhanced penalties of hate/bias crimes properly function to achieve a more egalitarian distribution of the risk of crime within our society, because they deter the (further) victimization of groups of citizens who already bear a disproportionate amount of our society's violence. As we demonstrate, each of the various senses that can be ascribed to this claim render it either conceptually incoherent or morally indefensible, and as such, it fails to function as a promising alternative to the theories of hate/bias crime legislation that we examine in Parts I, II and III.

Analysis of US hate crime legislation reveals a significant overall trend involving: (1) the inclusion of a notion of hate motivation on the part of the offender; (2) the provision for enhanced penalties; and (3) the identification of particular victimized groups who are listed in state and federal hate crime statutes. Whether or not a person is recognized as a hate crime victim in US statutes has been shown to be heavily influenced by the strength of social movements based on politicized identities. It is argued that this alignment problematizes the position of victims who are the targets of hate crimes yet who fail to organize on the basis of identity politics, lack political clout, have insufficient moral status, or who see hate crime legislation as an ineffective way of dealing with their particular concerns. This paper examines the barriers to achieving hate crime victim status for persons who are targeted because of their occupations or sexual orientation. The specific examples I will use are doctors and other workers in abortion clinics, sex workers and paedophiles. These widely disparate groups have been selected as examples to highlight some of the moral status, politicized identity and social movement and lobbying strength issues that are currently involved in being recognized as a victim of hate in the US. It is argued that Australia should not proceed down the track of introducing hate crime legislation. Hate crime legislation is the source of serious social disquiet and acrimony in the US. There are inequities built into the alignment between proving hate intent and the enhanced penalty approach that involve giving higher symbolic status to some bodies and not others. As the experience in the US shows, this has a dangerous potential to undermine social cohesion and community faith in equality before the law as well as creating a breeding ground of resentment.

Teaching and Learning Guide for: Isn’t Every Crime a Hate Crime? The Case for Hate Crime Laws

In “Is Penalty Enhancement a Sound Idea?” Claudia Card calls into question hate crime legislation, querying whether hatred makes a crime worse, whether hatred of the sort pertinent to hate crimes is worse than a more personal hatred, and whether the message sent by hate crime legislation is the intended message. This essay questions her assumption that penalty enhancement for hate crimes is warranted only if the crimes are worse than otherwise similar crimes that do not count as hate crimes. Instead, it may be the case that it is the proper business of the state to take a particular interest in such crimes, in part because they enact not just any hatred but civic hatred. And if hate crimes are understood as enacting civic hatred, hate crime legislation can indeed serve to counter a message that very much needs to be countered.

In this article I argue that the objections against hate crimes defined as separate offenses and in terms of group animus are misguided and are based upon a mistaken view of human action that does not see motives as constituent parts of complex actions. If we are going to have hate crimes legislation, there are no good formal reasons keeping us from having distinct offenses for hate crimes or from having ones defined in terms of group animus. My goal is to clear up a number of action-theoretical confusions that have led some theorists and jurists to raise objections that draw attention away from the real crux of the debate over hate crime legislation. Initially, I defend several considerations that weigh against an understanding of hate crimes legislation as being concerned exclusively or even primarily with character, belief, or motive. These considerations in turn help undercut the related concern that hate crime legislation violates free speech protections.

Recent state and federal legislation such as the Hate Crimes Prevention Act (HCPA) addresses hate crime prevention and punishment. Two pivotal questions that arise in the development of such legislation are (a) should hate crime perpetrators be subject to penalty enhancements? and (b) should protections be extended to sexual and transgender minority individuals? This article presents two studies addressing these questions employing a two-step vignette methodology. Jury-eligible community members provided sentencing and blame attribution ratings for one of three hate crime scenarios (i.e., anti-African American, antigay, or antitransgender), as well as penalty enhancement agreement (i.e., yes/no) and measures of need for affect (Study 1) and need for cognition (Study 2). Patterns of findings across studies suggest that participants comply with hate crime legislation instructions in general, but sentencing decisions are consistently moderated by whether a participant agrees with the penalty enhancement aspect of hate crime legislation. Moreover, need for affect and need for cognition differentially impact perceptions of hate crimes; need for affect demonstrated predictive associations with victim blame, whereas need for cognition moderated relations with perpetrator sentence and blame judgments. Results are discussed with emphasis on the state of federal hate crime legislation, antigay and antitransgender prejudice, and future directions in research and policy.

Hate crimes (or bias crimes) are crimes motivated by an offenders’ personal bias against a particular social group. Modern hate crimes legislation developed out of civil rights protections based on race, religion, and national origin; however, the acts that constitute a hate crime have expanded over time, as have the groups protected by hate crimes legislation. Anti-LGBT hate crimes, in which victims are targeted based on their sexual orientation or gender identity. LGBT people are highly overrepresented as victims of hate crimes given the number of LGBT people in the population, and this is especially true of hate crimes against transgender women. Despite the frequency of these crimes, the legal framework for addressing them varies widely across the United States. Many states do not have specific legislation that addresses anti-LGBT hate crimes, while others have legislation that mandates data collection on those crimes but does not enhance civil or criminal penalties for them, and some offer enhanced civil and/or criminal penalties. Even in states that do have legislation to address these types of hate crimes, some states only address hate crimes based on sexual orientation but not those based on gender identity. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act gives the federal government the authority to prosecute those crimes regardless of jurisdiction; however, this power has been used in a limited capacity. Hate crimes are distinct from other crimes that are not motivated by bias. For example, thrill seeking, retaliation, or the desire to harm or punish members of a particular social group often motivates perpetrators of hate crimes; these motivations often result in hate crimes being more violent than other similar crimes. The difference in the motivation of offenders also has significant consequences for victims, both physically and mentally. Victims of hate crimes are more likely to require medical attention than victims of non-bias crimes. Likewise, victims of hate crimes, and especially anti-LGBT hate crimes, often experience negative psychological outcomes, such as PTSD, depression, or anxiety as a result of being victimized for being a member of an already marginalized social group.

This article focuses on political crimes, specifically terrorism and hate crime. Both terrorism and hate crime are criminal activities that are often committed to further a political objective, as opposed to typical or regular crimes that are usually committed for personal reasons such as greed, revenge, or other personal motivations. Political motivations encompass ideological, social, and religious objectives. Several works (e.g., Bruce Hoffman’s Inside Terrorism; see Hoffman 2006, cited under Defining Terrorism and Hate Crime) examine the evolution of terrorism from ancient to modern times. While bias-motivated violence and hate crimes are just as old as terrorism, the United States did not formally adopt hate crime legislation, through the passage of a variety of substantive penalty enhancement and data collection laws, until the late 20th century. Making Hate a Crime (Jenness and Grattet 2004, cited under Defining Terrorism and Hate Crime) explores the history of hate crime legislation, highlighting how various civil rights and victims’ rights movements played a role in the passage of hate crime legislation. In the classic text Hate Crimes Revisited, Jack Levin and Jack McDevitt outline the history of hate crimes, explain why some persons are motivated to commit these crimes, and discuss efforts to combat them (Levin and McDevitt 2002, cited under Defining Terrorism and Hate Crime).

This article will explore what hate crimes are, and explore why they have been on the rise in recent years. I will track the evolution of hate crime legislation on both a federal and state level and argue that while rises in hate are consistent throughout time, they are also episodic. I will justify the need for hate crime legislation and demonstrate how state hate crime laws vastly differ, using a case study as support. I will make policy suggestions to improve existing legislation and advocate for an increase in federal funding allocated to hate crime training for law enforcement agencies. Lastly, I will suggest that training should also be required in schools and workplaces in order to diminish ignorance and intolerance, and to encourage communities to embrace and celebrate diversity rather than fear it

In this introduction to the special symposium on the philosophy of hate crime, we provide an overview of the main philosophical aspects of hate crime and hate crime legislation. We point out that there are two overarching philosophical issues that span over the literature: the Conceptual Question--concerning what hate crime is--and the Normative Question--concerning the status of hate crimes and the justification of hate crime legislation. We also provide brief summaries of the articles in the special section and point to their relations to the broader themes.