posted
It's been awhile since we've had one of these threads, and the recent Phelps thread brought this topic back to my mind.
I don't, however, have a strongly formed opinion on the subject. I feel a little bit wary of designating a crime for harsher (or different) punishment based on the motivations of the person who committed it, rather than the seriousness or depravity of the act itself.
What are the standards for prosecuting a crime as a "hate" crime?
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quote:I feel a little bit wary of designating a crime for harsher (or different) punishment based on the motivations of the person who committed it, rather than the seriousness or depravity of the act itself.
Paraphrased from an earlier thread on this:
Intent is not the same thing as motive. Motive is why a person commits an act. Intent is related to purposely committing the act. For example, if someone turns the wheel of their car to aim it at the person, the intent is to hit the person. The motive might be because the driver was bullied by the victim in high school. Motives basically don't have to be proved to convict. Intent, depending on the crime, might have to be proved to convict.
Homicide is a consequence-defined category of crimes: someone dies because of someone's actions. It is graded largely by intent.
Almost every crime contains a mental element (called mens rea). For example, here is one scheme for grading various forms of homicide based on the mental elements:
First Degree Murder: willful and premeditated Second degree murder: intent to kill or lack of concern for human life (often worded as depraved indifference for human life) Voluntary Manslaughter: current intent to kill Involuntary manslaughter: negligence or recklessness Some hate crimes include a mental element "with intent to intimidate a person based on <protected categories>." Hate crimes worded like this have mental elements that parallel the mental state of these homicide crimes. In these cases, we are simply declaring some intentions to be more harmful than others and are not really making a new kind of crime.
Poorly worded hate crimes base the element on motive, and many of these have been changed after the first rush of passage to base them on intent.
Some hate crime laws are based on reasons for selecting the victim. This goes to motive rather than intent.
The best justification for hate crime laws is that some crimes are aimed at more than just the immediate victim. The legal system commonly accepts this. For example, killing a police officer in the course of his duties targets society as a whole. Intimidating a witness targets the justice system as a whole.
Similarly, beating up a black man because he is with a white woman targets a group of people beyond the man who is beaten.
For this justification to apply, the distinguishing element needs to be effect or intended effect of harming others than the immediate victim.
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posted
As a visible minority, I must admit in the past I always felt somewhat moderately favourable to laws against hate crimes and hate speech.
However, relatively recently I listened to a talk by Christopher Hitchens about the dangers of the hate speech laws in Canada. link I found it relatively moving and am now against hate speech laws in general. I remain undecided about hate crimes laws outside of speech.
PS: If you're religious and easily offended, you may wish to stop listening about 65% of the way through. Hitchens can sometimes make Dawkins sound like a puppy sometimes. However, his point is really applicable to any minority that feels threatened and has a knee-jerk instinct to support these kinds of laws, not just atheists.
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quote:Originally posted by Mucus: PS: If you're religious and easily offended, you may wish to stop listening about 65% of the way through. Hitchens can sometimes make Dawkins sound like a puppy sometimes.
[derail] I never found Dawkins to be particularly offensive sounding at all. [/derail]
I'm against hate crime laws when there is already an existing law that covers the actions to the appropriate level.
For example, I would say burning a cross on someone's lawn, which might be only considered something like 'vandalism', should be treated as a hate crime and thus be given an appropriately higher penalty.
But murder is murder. Certainly the details should be taken into consideration, but there shouldn't be an automatically added penalty just because the murder was motivated by a prejudice.
That's just my opinion, of course.
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quote:Originally posted by Mucus: As a visible minority, I must admit in the past I always felt somewhat moderately favourable to laws against hate crimes and hate speech.
I don't get why rape isn't considered a hate crime. If there's such a category as hate crimes, I mean, which there shouldn't be.
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quote:Originally posted by Mucus: As a visible minority, I must admit in the past I always felt somewhat moderately favourable to laws against hate crimes and hate speech.
I don't get why rape isn't considered a hate crime. If there's such a category as hate crimes, I mean, which there shouldn't be.
Oh I dunno, I would think rape would be more a "Crime of Passion" category.
posted
Dag, I'm confused by that description of the difference between voluntary manslaughter and second degree murder. What's the difference?
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posted
KQ, I was listing just the difference in the intent portion of each crime. That's not the only difference between the two laws.
Voluntary manslaughter in most states can be thought of as a second degree murder where the defendant acted in the heat of passion or upon severe provocation. It can be thought of as lessening culpability for the crime. However, it still requires a finding of fact that the defendant intended to kill or seriously harm the victim to convict someone of voluntary manslaughter.
Sorry for the confusion.
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posted
BB, that's a gross misunderstanding of what drives, and what is actually happening during, a rape.
Dag, thanks, you are the first person I have seen delineate hate crime laws that way. It makes much more sense to me, now.
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posted
Lisa: Thats a response to me simply because you're drawing a parallel between me as a visible minority and woman as (slightly) a visible minority compared to men, right?
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quote:For example, I would say burning a cross on someone's lawn, which might be only considered something like 'vandalism', should be treated as a hate crime and thus be given an appropriately higher penalty.
I'm against hate crime laws, but this is something I could get behind. That's terrorism, as far as any definition of the word I know of goes. The intent is to terrorize and make someone fearful, rather than to just cause some sort of random problem or destruction. I think the punishment should be higher than someone who eggs a house or spray paints a house.
But I don't think that's a thought crime, because it doesn't much matter what you were intending, the effect is different, and so I think it qualifies for a higher punishment.
I think it'd be ridiculous to call rape a hate crime, or at least to use that as the reason to make the punishment worse. If you think rape deserves to be more heavily punished, then that's a debate to have, but trying to do it under the guise of a hate crime doesn't make much sense to me.
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quote:I don't get why rape isn't considered a hate crime. If there's such a category as hate crimes, I mean, which there shouldn't be.
Hate crimes are "normal" crimes which have an aggravating factor that causes additional penalties to be considered. I suppose if there are people that use rape as a method of intimidating a group of people other than the person being raped, then it could merit additional penalties when that motive is in play. I've never heard of that motivation for rape before though.
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quote:Originally posted by Mucus: Lisa: Thats a response to me simply because you're drawing a parallel between me as a visible minority and woman as (slightly) a visible minority compared to men, right?
I think it has more to do with the word "hate" and the idea that a hate crime is defined by the group it terrorizes, since women are not at all a minority, though they may suffer many of the same problems minorities do.
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quote:I don't get why rape isn't considered a hate crime. If there's such a category as hate crimes, I mean, which there shouldn't be.
Hate crimes are "normal" crimes which have an aggravating factor that causes additional penalties to be considered. I suppose if there are people that use rape as a method of intimidating a group of people other than the person being raped, then it could merit additional penalties when that motive is in play. I've never heard of that motivation for rape before though.
I wonder if some prison rapes would qualify. Is rape used in prison as a means of intimidation for establishing and enforcing the social hierarchy of the inmate power structure?
(MattP! I have some information on leeching. It is on my list to post -- I have been busy studying. I will get to it eventually. )
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posted
I would also say that rapes that take place in some countries (not so much here, but who knows? Maybe they do among immigrant communities) to enforce political compliance or compliance with the local gangsters or whatever of the rest of the family would qualify.
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quote:I wonder if some prison rapes would qualify. Is rape used in prison as a means of intimidation for establishing and enforcing the social hierarchy of the inmate power structure?
The rape would have to be targeting a protected class of prisoners. I don't know if rape is used for that purpose or more generally to mean "don't mess with me." I presume it conveys a similar, if more forceful, message as would be conveyed by just beating someone up. To the extent that hate crimes apply to prison assaults, rapes should probably be included.
quote:(MattP! I have some information on leeching. It is on my list to post -- I have been busy studying. I will get to it eventually. [Smile] )
posted
I have seen research that indicates that rapes are used in prison to enforce compliance with prison gangs/send a message to another prison gang/ethnic group in some prisons. Would that qualify?
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I tend to think not. Gangs naturally organize around racial lines but I don't get the impression that the violence between them is inherently motivated by racial factors.
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posted
Hmm.. So should "honour killings" be considered hate crimes against women? after all, it's to keep women "in their place".
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quote:Originally posted by The Pixiest: Hmm.. So should "honour killings" be considered hate crimes against women? after all, it's to keep women "in their place".
I don't get the impression that individual "honour" killings are aimed at women as a class. It's the motive, not the effect that makes something a hate crime. The man who kills his daughter or sister is doing it because he feels he and his family have been dishonored and/or because he believes that God requires it of him. I don't think there is much thought about other women.
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posted
I'm torn on hate crime legislation. On the one hand, I think our laws are already complicated enough and don't like to see more legislation applied to things that are already against the law.
On the other hand, I think this may come down to the age-old question: What is the purpose of criminal justice? Are we trying to punish, seeking vengeance, attempting to rehabilitate, or are we hoping to deter others from taking the same action?
If criminal justice is a matter of deterrence, then it might make sense to assign harsher penalties to a member of one group seeking to harm another. After all, there are theoretically more members of the first group who would seek to harm the second. We'd like to convince them otherwise.
If criminal justice is a matter of rehabilitation, then harsher penalties don't make sense but understanding cause might.
If we're just after punishment or vengeance, then hate crime legislation is essentially suggesting that some motives for murder are worse than others (separating out motive and intent based on what Dag said). It's saying racism is worse than greed (say, killing a wife for insurance money).
I've never been clear on the purpose of the criminal justice system in this country, but it might make a difference in how we view punishing hate crimes.
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posted
I like your point about intent vs motive, Dag. The nooses springing up everywhere have had me thinking about this. Yes, we can all agree that it's an awful, nasty thing to do to someone and the larger community. But I don't like blanket laws. I can't think of anything off the top of me head, but I'm sure there are situations where one could hang a noose without racist intent. I'm on board with carefully worded hate crime laws. And as we saw in Louisiana, intent to intimidate through use of specific symbols probably needs to be a law all on its own, not just attached to existing crimes.
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quote:Originally posted by ketchupqueen: Even with that second description, I don't get how the intent is different between the two.
The intent isn't different between those two. Same intent, distinguished by passion/provocation.
Okay. Thanks, Dag! I honestly am not processing so well lately... Silly baby stealing my braincells.
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I tend to think not. Gangs naturally organize around racial lines but I don't get the impression that the violence between them is inherently motivated by racial factors.
It often takes place as a result of racial tension. A white inmate calls a black man a N*gger or a monkey and a stabbing/rape is orchestrated as punishment by the black gang.
The Aryan Brotherhood is the largest white gang in the country and racial superiority is one of its biggest doctrines.
Pedophiles are attacked upon entering the prison as a standard practice across the country.
Would that constitute a hate crime?
edit:
quote:BB, that's a gross misunderstanding of what drives, and what is actually happening during, a rape.
*raises head again* sorry what?
Look I was well aware of that, it's just a joke.
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posted
That's not true. Sexual assaults have a different set of penalties than other assaults because of the nature of the crime, not the intent.
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quote:Originally posted by Dagonee: Intent is not the same thing as motive.
(...)
Illuminating. Thanks.
quote:Originally posted by Lisa: I don't get why rape isn't considered a hate crime. If there's such a category as hate crimes, I mean, which there shouldn't be.
Perhaps because, if I'm understanding correctly, the intent of the rape would have to be to intimidate or send a message to women as a whole or a particular subset of women.
I imagine a rape could be a hate crime, but the crime as a whole wouldn't automatically be so.
And my (admittedly limited) understanding of rape as a crime suggests that rape is usually more about the gratification or sense of power of the rapist; the rapist is rarely thinking beyond the victim.
Not to say it doesn't happen. The horrifying use of rape as a weapon in recent instances of genocide comes to mind.
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It does seem to me, however, that if there is to be a "hate crime" class, the question of whether the crime stems from or intends to purvey a sense of the acceptability of violence towards a particular class of people should be considered.
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posted
If rape was treated as a hate crime, there would be a lot less rapists out after five months.
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quote:Originally posted by BlackBlade: Pedophiles are attacked upon entering the prison as a standard practice across the country.
People keep saying this, but I've never seen anyone substantiate it. In Minnesota, I know most sex offenders are kept separate from the general population, partly to protect them and partly because they are sent through treatment programs, so it makes sense to locate them all together at a separate facility. I honestly don't believe that the incidence of prison rape is anywhere near as high as people think it is.
quote:After more than four decades of research, it is still unclear how much rape and sexually violent activity occurs in prisons, jails, and other corrections facilities in the United States. What is clear from research is that, as with rape in free society, prison rape goes largely unreported.
Of the hundreds of studies in institutional corrections, less than 25 research studies have been conducted on prison rape. Of those studies, some asked inmates to describe their victimizations, including nonconsensual activities other than rape, while others examined official reports filed by inmates. Because none of these studies were national in scope, it remains difficult to estimate the extent of the problem. A meta-analysis of this research estimates a 1.91 percent lifetime prevalence for all inmates in the United States (Gaes and Goldberg, 2004).
In 2004, the Bureau of Justice Statistics (BJS) examined administrative records from adult and juvenile facilities at State and local levels. According to these official records, slightly more than 8,000 male, female, and juvenile inmates—or 0.005 percent of the total incarcerated population—reported that they had been victims of sexual violence while incarcerated. An even smaller percentage of inmates' claims were substantiated (Beck and Hughes, 2004).
Thus, although the Prison Rape Elimination Act (PREA) 2003 states that 13 percent of all inmates have been raped in American prisons and jails, the most recent research estimates less prevalence of rape, whether inmate-on-inmate or staff-on-inmate sexual misconduct (Bureau of Justice Statistics, 2004; Beck and Hughes, 2004).
. . .
Concepts defining coerced and forced sexual behavior may be perceived differently in prison culture, but they are similar across all prisons in the United States. The researchers reported that 66 percent of male inmates and 71 percent of female inmates were aware of inmate-staff sexual relationships. Although no relationship between correctional staff and inmates is legal, these estimates included romantic, mutual relationships, not just rape.
Collectively, 9.1 percent of male and female inmates reported they were aware of an inmate who had been raped by a correctional staff member. Male and female inmates—about 34 percent and 28 percent respectively—reported they knew of an inmate who reported rape to staff members. A high percentage of both male and female inmates indicated that corrections officers try to protect inmates from being victimized.
That's all inmates, obviously, not just sex offenders and not just pedophiles. But considering that prisoners who are considered in danger are routinely kept in solitary confinement for their own protection, I just don't buy that a prison sentence for the pedophile is a rape sentence. I think the fact that it's so widely considered so is a combination of urban legend and wishful thinking on the part of people who believe that a child rapist being raped is "what they deserve."
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posted
"I just don't buy that a prison sentence for the pedophile is a rape sentence."
The beating of Andrea Yates and the murder of Father John Geoghan belie that to some degree. Neither was raped, but...you know, whatever.
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quote:Okay. Thanks, Dag! I honestly am not processing so well lately... Silly baby stealing my braincells.
That was my fault entirely - I outright said the table was to show difference in intent. I should have clarified that those two didn't differ in intent.
I pasted that from another thread where the other differences were listed in an earlier post. I should have edited to make the context clearer.
quote:Originally posted by ketchupqueen: If rape was treated as a hate crime, there would be a lot less rapists out after five months.
posted
That's good. Of course, I still think that's not nearly long enough. But at least it's getting better.
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quote:People keep saying this, but I've never seen anyone substantiate it. In Minnesota, I know most sex offenders are kept separate from the general population, partly to protect them and partly because they are sent through treatment programs, so it makes sense to locate them all together at a separate facility. I honestly don't believe that the incidence of prison rape is anywhere near as high as people think it is.
For what it's worth, I've seen at least 10 different documentaries about prison life. One of the things that seems consistent is that pedophiles are immediately targeted for assaults. Prisoners seem to take pride in the fact they have their own justice system in that regard.
Rape was not specifically prescribed as the correct response for pedophiles, stabbings and beatings were just as likely. But in the case of a pedophile being gang raped, I think that is similar to a hate crime in that it sends a message to other child offenders.
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posted
One aspect of hate crimes that I haven't seen addressed here is the chance of rehabilitation. Committing a crime based on hatred for an entire group of people seems, to me, to add more difficulty in affecting rehabilitation.
In a perfect system, I'd see that as largely limited to considerations as to the end of the sentence (granting parole, etc.), but, working with the system as it is, I can make sense to address it in the initial sentence.
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