Newsgroups: bit.listserv.politics
Date:         Mon, 21 Dec 1992 13:22:38 EST
From:         Jamie <PL436000@BROWNVM.BITNET>
Subject:      Convincing Kerry

Ok, so now I'm supposed to persuade Kerry that *I*'m right and
Joe is wrong. That should be easy. :-)

From:         JCOCURUL@DREW.DREW.EDU

>>The legislature isn't directly punishing offensive thought. It has
>>said that the same crime performed with one sort of intention is
>>more odious than if performed absent that intention. That is
>>precisely the distinction between (some) kinds of manslaughter.

>Sure it is.  That is what you just said -- the same crime performed is
>more odious because of the intention of the criminal.

Ok, if you want to call that "directly punishing offensive thought,"
I won't argue.

One thing that seems unclear to me is the distinction Joe wishes
to draw between a belief and an intention.
I always thought that an intention was a kind of belief. But if not,
I still don't see why the distinction is an important one.

>again for manslaughter it is intent, not the opinions of the killer.

"Intent" IS a specific kind of opinion of the killer.

>                     Again, aggravating factors can't be based on
>subjective opinions/belief,

I still don't get it.
As I understand it, a "subjective" opinion/belief just means
a belief/opinion that someone happens to hold. The intent
to murder is a subjective opinion/belief in that sense.

If I am not understanding what you mean, please correct me.

>based on belief.  Name a degree of manslaughter that is defined by the
>opinion of the killer.

That's easy.
Suppose Bob walks up to Sophie and shoots three bullets into
her head.
Case 1: Bob believed that Sophie was already dead.
Case 2: Bob believed that Sophie was sleeping or comatose.

Case 1 is not murder (exactly what it is varies by state).
Case 2 is murder. (Well, assuming that Sophie WAS alive,
and was a person.)

>I always thought rape was forced intercourse without consent.

You were mistaken.
But it's understandable. "Rape" does not have a constant
legal definition.

>yes, the state of mind of the rapist is relevant (i.e. did he think
>she gave consent), but not that he was a sexist pig.  His state of
>mind can be used to show he was liable to rape, but it can't add to
>the punishment of that rape if he raped for sexist or racist reasons.
>Again mens rea is still an accepted concept, but it can't be used to
>penalize belief!

Joe, this simply makes no sense.

You admit that the difference between a case that is rape
and a case that isn't might be solely a matter of what
the "rapist" believed. Then you say that mens rea cannot
be used to penalize a belief.

Mens rea means EXACTLY that what was going on in the criminal's
mind can determine his guilt.

>the opinion leads to a discriminatory act, it is that act which is
>punished, not the opinion itself.  You seem to think that I'm saying
>that intent and belief never can be used by the courts, I'm not.  Only
>when it is the belief that is being penalized (here by enhanced
>sentences) for itself is it not permissible. If the belief can be used
>to prove an illegal act was done (ex. discriminatory hiring
>decisions), it is permissible but a racist discriminatory hiring can't
>be penalize more than discriminatory hiring based on say nepotism.

????????

Look, we might have two cases in which the external behavior
was identical. The ONLY difference was the beliefs, the state
of mind, of the employer. But one case is a crime and the other
is not. We agree that this is how discrimination law works.

We also agree that in cases of homicide, we might have two
cases in which the outward behavior is identical, but one case
is a more serious crime than the other, because of the criminal's
state of mind.

I claim that the Wisconsin law is essentially similar to
the second category. I do not understand why you disagree.

>exactly: PC speech is there to insure groups aren't upset by language
>used between them.

You're kidding, right? You think that in the actual case in
Wisconsin, the extra penalty is because someone was upset by
language? A man was beaten.
Do you think that the extra penalty for murder (as above
manslaughter) is there to insure that groups will not be
upset by beliefs???? Is it that some people are really
offended by the idea that a man might TRY to kill someone,
instead of just HAPPENING to kill them? Is THAT the reason
murder is punished more severely than manslaughter?

>You didn't examine the problem of finding out when a racist robber
>robbed because of racism or because the nearest victim happened to be
>the race he/she feels is inferior.  This is where the chilling of free
>speech and belief comes in a lot of the time.

I don't know what you're asking me.

Are you asking how courts will "find out"? I don't know. I suppose
they would use essentially the same methods they always use to
find out what was the state of mind of the killer in a homicide
case.

Or are you saying that the Wisconsin law will have a chilling
effect? I would like to know what kinds of speech will be chilled.
Are you worried that gangs of racist thugs who want to beat
up a member of another race will be afraid to shout racist
epithets while they are in the middle of the attack? THAT'S
the chilling effect?

Brrrr.

Jamie
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