From: quilty@titan.ucc.umass.edu (Humberto Humbertoldi)
Subject: "Hate-Crimes (Was gay-bashing)"
Organization: University of Massachusetts, Amherst
Date: Fri, 20 Nov 1992 18:00:37 GMT

.....[My earlier discussion of "hate-crimes" abridged].....
>
> I'm not a lawyer, (standard disclaimer,) but...

     Well, I'm not either; but I do spend a lot of time reading
and thinking about legal-ish things (actually, I'm a philosophy
professor -- how's dem credential)

     Before I respond, I would like to say that I thought your
response is extremely intelligent and well thought out.  I got
several pieces of email in response to my post.  This surprised me
a little since usually people respond right on the boards (I think
a person or two responded there as well).  But yours was the only
one I think is worth specifically responding to.  I don't mean to
flame the others or anything, but they seemed much more offhand.
>
> It is my understanding that the law *does* consider the the motivation
> behind a criminal behavior, as opposed to just the actions itself.  A
> good example would be a case where a person pointed a gun with no
> firing pin at someone and pulled the trigger.  If the person believed
> that the gun would fire, then they are guilty of attempted murder.
> However, if they knew the gun would not fire, then (as I understand
> it) they could probably only be charged with something like assault.
> In both cases, the behavior and even the results (the gun doesn't
> fire) is the same, but the intent of the person performing the action
> is different, making it a different crime.

     This is true.  This is what most people seemed to respond.
But I still think there is a disanalogy here with the
manslaugter/murder distinction (this is how most people phrased it
-- and seems basically the same as what you're pointing out).
     When someone commits a "hate-crime" there are two sets of
intentions which need to be shown.  The first is the kind of
*specific* intention to perform the local act alleged, the second
is the *general* intent to vicitmize an individual based on their
group membership.  For example, imagine someone drops a heavy
object onto someone else from a window.  There are at least three
different types of laws which may be violated by doing so
(depending on jurisdiction and so on).  If no intention to injure
the person can be established at all, then it may be some kind of
criminal negligence, but no more.  If there is a specific intent
to injure that *individual* then it will probably be assault (or
attempted murder, etc., depending on the circumstance).  If an
additional intent is shown -- strictly depending upon the first
intent -- to injure that *individual* person based upon her/his
membership in a protected group, then it may fall under a "hate-
crimes" statute.  That is, this is how things stand in many
jurisdictions where "hate-crimes" laws exist.
     It is my opinion that STATE prohibition of the kind of
secondary (general) intent mentioned above is *dangerous* and
*inappropriate*.  I do think that specific intent should be
considered germane to criminal statutes, but also to include
general intent seems to skirt dangerously close to outright
control of belief systems.  Given that laws already exist against
assault/rape/murder, etc., it seems inappropriate to pass specific
laws (generally with heavier penalties) against people who commit
these crimes AND ADDITIONALLY subscribe to certain belief systems.
The extra penalty is specifically related to holding a "hateful"
belief system -- and it is that belief system for which a
perpetrator is being punished with the extra penalties.

> The rational behind hate-crimes law is that a person performing an
> assault based on the race/sex/religion/etc of the victim is attempting
> to harrass the community identified with the victim through fear, in
> addition to the criminal act that was performed.  It is this
> additional harassment of a target group that society (in this case,
> the law) deems worthy of greater punishment than the isolated act of
> physical abuse of one person.

You're right about this rational; and I am in many ways tempted by
it myself.  But many activities which I believe MUST BE PROTECTED
can also serve to harrass a community.  If I write a book (don't
worry, *I* won't, but some people will) claiming that Gays
(Jews/Blacks/whatever) are sinful and harmful, and must be
expelled from "our" communities, and prohibited from teaching
"our" children, etc., then this may well create an atmosphere of
fear and intimidation amongst the group I attack.  But I still
believe that publication should be protected.  To say that as soon
as someone is convicted of a criminal act (even a violent one)
they should lose this kind of protection seem very authoritarian,
even fascistic.  But the only difference between someone who
writes the above book but assaults no one, and someone who does so
then assaults a member of said victim group is that the latter HAS
COMMITTED AN ASSAULT.  But that's the only difference, and hence
the only penalty should be the penalty for assault.

> One thing you said was that hate-crime laws attempt to "regulate and
> illegalize" belief.  This is not true.  Hate-crime laws do *not*
> outlaw belief.  People are allowed to express these beliefs in
> appropriate, non-violent ways.  They do, however, indicate that
> society disapproves harshly of people who choose to act violently
> based on their beliefs. The most that can be said of the government in
> these cases is that the government is "encouraging" belief in
> tolerance.  It is hardly making other beliefs illegal.

I disagree, for reasons explained above.

> >way).  The analogy with "hate-crimes" I mean to be drawing is just
> >that, where "hate-crime" laws exist, if one is found guilty of
> >assault, then later shown to have a "hateful-intent" behind the
> >assault, one IS LIABLE for additional criminal penalties! Talk about
> >"double jepardy!"
> >--
>
> When refering to discrimination, if it can be show that discrimination
> was performed with *intent*, then if I am not mistaken, the person
> discriminated against will most likely be able to collect damages and
> penalties over and above lost wages/property/etc.  Whereas if no
> intent is shown, merely correcting the discrimination would suffice.
> (I can't verify the legal presidents involved in discrimination
> decisions.  This is my best guess as to ways that discrimination suits
> are settled.)  So even in the case of discrimination, intent plays a
> role in the possible penalty of the perpetrator.

Nope.  Sorry, I think you're just mistaken about this.  If
"flagrant discrimination" can be shown there may be liability for
punitive damages.  But this issue of "flagrancy" is a bit
different from that of intent.  The two may be related in concrete
cases, but there is no general rule that they go together.

> And please don't use phrases like "double jeopardy" incorrectly.  That
> only means you cannot be tried for the same crime twice.  I assume you
> were just being cute, but it doesn't apply at all in this situation.

I DO mean double jeopardy quite literally.  You probably disagree
with my conclusion, but I did make the claim seriously rather than
just to be cute.  Let me quote another response I wrote:

*> = msp@physique.ens.fr (PETTERSEN Mike)
*> The bit about double jeopardy is a red herring--no one is
*> convicted of manslaughter and then of first degree murder
*>  for the same crime.

No, but they are (I have read of concrete cases) first convicted
of assault/murder/rape/etc., then later additionalliy convicted
under anti-"Hate-Crime" laws fro the same crime.  Also, when a
prosecutor cannot obtain a conviction for assault/murder/
rape/etc., s/he will retry the the same person for the same
"incident" under these laws (where so much more ad hominem
argument can be made to jurors).


P.S. I rather liked your comments; and responding gave me the
opportunity to think these things through more myself.  If I have
your permission I'd like to repost the above back to the boards
(but I don't want to post your words without your permission).
RSVP.

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