Abstract

violation of the equality ideal. At most, this latter conception of bias crime statutes can assert that crimes based on the protected characteristics threaten the equality ideal because these characteristics have generally been the basis of past discrimination—but they cannot locate either the harm risked by the perpetrator or his individual culpability more precisely. 2. The Potential Underinclusiveness Problem This proposed solution to the overinclusiveness problem of bias crimes does not address the potential underinclusiveness question. Why, for example, are the elderly and the disabled typically not included within bias crime statutes? Formulating the list of protected characteristics that should be included within bias crimes statutes is a complex question without a single solution whose full elaboration is beyond the scope of this article. A few points, however, follow naturally from the above analysis. Clearly, political factors influence the calculation of the proper scope of bias crime laws, as debates over the inclusion of gender and sexual orientation as protected characteristics demonstrate. In response to political pressure, the scope of bias crimes has been rapidly increasing. This phenomenon threatens to seriously weaken bias crime laws. Legislative judgment about which characteristics are likely to make their bearers targets of violent discrimination helps sharpen the focus of bias crimes, feeding more clearly into the historical experience that justifies the penalty enhancement associated with these crimes. Having too many groups including within 149. See, e.g., Julie Goldscheid, Gender-Motivated Violence: Developing A Meaningful Paradigm for Civil Rights Enforcement, 22 Harv. Women’s L.J. 123 (1999). 150. Martin S. Zwerling, Legislating Against Hate in New York: Bias Crimes and the Lesbian and Gay Community, 11 Touro L. Rev. 529 (1995); Anthony S. Winer, Hate Crimes, Homosexuals, and the Constitution, 29 Harv. C.R.-C.L. L. Rev. 387 (1994). 151. Historical and contemporary social contexts suggest why certain aspects of peoples’ identity provoke a strong sense of solidarity with other members of the This content downloaded from 157.55.39.177 on Tue, 15 Nov 2016 03:56:32 UTC All use subject to http://about.jstor.org/terms DANNERMACRO 5/5/2003 4:42 PM 2002] CULPABILITY IN CONTEXT 447 the definition of bias crimes risks reducing the higher stigma associated with this kind of crime. Generally rejecting the expansion of bias crime statutes, however, does not resolve the question of which groups should properly be included within their reach. Whether gender should be considered a protected characteristic, for example, demonstrates the difficulty of the inquiry about which characteristics should be included and which should be excluded. Women have historically been subjected to discrimination in many facets of their lives, including voting and employment. Whether women are still subject to widespread discrimination is less obvious. The model of bias crime presented here focuses on the perpetrator’s choice of the victim as a representative of a group of which he is a member. The victim’s group affiliation has more importance than any individual characteristics of the victim; indeed, this is what distinguishes bias crimes from general vulnerable victim statutes. Thus, some crimes typically committed against women, like acquaintance rape, fit uncomfortably within the bias crimes model. The question of whether gender group. For these reasons, vulnerability can and should be seen as especially salient along the dimensions of the protected characteristics currently articulated in existing bias crimes. Thus, I believe that Kenneth Simons’s response to Harel & Parchomovsky’s article is misguided. See Simons, supra note 21, at 241 (arguing that race, religion, and the other characteristics protected by bias crimes are less important predictors of victims’ vulnerability due to other factors, like “geography, wealth, class, and similar factors”). Vulnerability generally might be more dependent on the factors that Simon mentions, but these characteristics are less likely to constitute the basis of widespread harm to other members of the “group,” precisely because the relevant characteristics are less salient to their members. 152. Cf. William A. Schabas, Genocide in International Law 114 (2000) (arguing for a narrow definition of the crime of genocide: “for society to define a crime so heinous that it will occur only rarely is testimony to the value of such a precise formulation. Diluting the definition, either by formal amendment or its terms or by extravagant interpretation of the existing text, risks trivializing the horror of the real crime when it is committed”). 153. Perhaps the problem can be resolved through the statutory formulation of bias crimes. In a bias crime, the perpetrator must select the victim in at least substantial part because of his or her membership in a protected group. The acquaintance rapist might not primarily select his victim because she is a woman but instead because of some other characteristic. If that characteristic is not This content downloaded from 157.55.39.177 on Tue, 15 Nov 2016 03:56:32 UTC All use subject to http://about.jstor.org/terms DANNERMACRO 5/5/2003 4:42 PM 448 BUFFALO CRIMINAL LAW REVIEW [Vol. 6:389 should be included in bias crimes statutes should turn on the pervasiveness of discrimination against women, and how many of the crimes committed against women reflect perpetration because of their identity as women, rather than other factors less central to the purpose of bias crime statutes. The discussion of bias crimes in this article also provides legislators with other criteria they might use when evaluating the propriety of expanding the scope of characteristics protected by bias crimes. History is clearly an important factor. Has the characteristic historically been the basis for discrimination? Race, ethnicity, national origin, and religion easily qualify here, as would sexual orientation. Contemporary circumstances must also be considered. Prejudices that were vivid hundreds of years ago but have no contemporary currency clearly should not be included within these statutes. Legislators should also consider the particular characteristics of discrimination within their jurisdiction. Some groups, one could imagine, would be likely targets of discrimination across the United States and thus would be included in all bias crime statutes, while others might be particularly vulnerable only in particular regions. specifically included within the reach of the bias crime statute, the acquaintance rape should not be considered a bias crime. Even assuming, however, that the “because of” formula helps distinguish between crimes that fit within the bias crimes model and those that do not, this resolution does not identify which characteristics should be included within the statute generally. 154. Cf. United States v. McCall, 174 F.3d 47, 50 (2d Cir. 1998) (construing the federal vulnerable victim enhancement and stating “broad generalizations about victims based upon their membership in a class are disfavored where a very substantial portion of the class is not in fact particularly vulnerable to the crime in question. In such cases, courts have required that the enhancement be based on individualized findings as to the vulnerability of particular victims”). While individualized findings as to particular victims would not be appropriate for bias crimes statutes because of the relative importance of the group over the individual, considering the proportion of crimes committed against members of a group that are likely to be considered bias crimes might prove a useful way of determining whether or not the characteristic should be included within the bias crime statute. 155. Gays and lesbians, for example, might fit this description. See Herek, supra note 14, at 945 (noting that “sexual prejudice is still acceptable in many quarters of American society”). I imagine that African Americans, Latinos, and other minority racial groups would also likely be considered vulnerable groups This content downloaded from 157.55.39.177 on Tue, 15 Nov 2016 03:56:32 UTC All use subject to http://about.jstor.org/terms DANNERMACRO 5/5/2003 4:42 PM 2002] CULPABILITY IN CONTEXT 449 Legislators also might consider whether the characteristic is likely to make the victims subject to attack because of social discrimination against this group or because it is a proxy for some other quality, such as physical helplessness. This type of inquiry makes some characteristics, like age and disability, problematic for inclusion within the reach of bias crime statutes. While crimes against the elderly should certainly be seen as crimes targeting vulnerable victims, they should not be defined as bias crimes. Discrimination—not opportunism— is the foundation of the bias crime perpetrator’s culpability. If one believes, as I do, that the category of bias crimes should be narrow, inevitably groups that resemble those already included within the reach of bias crime statues will feel unfairly excluded. As Jacobs and Potter point out in their comprehensive critique of bias crimes, the judgment about the proper scope of these statutes is inescapably political. While the legislative crafting of bias crime statutes should be informed by clear questions and criteria, the difficulty of the inquiry is unavoidable.

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