The purpose of this paper is to discuss the different issues with regards to hate crimes. It will specifically state the different definition of the word hate crime and the different kinds of hate crime prevalent in the society. It will also attempt to state important laws and regulations that punishes and penalizes perpetrators of hate crime.
Although experts commonly agree that hate crime is prevalent in American society, these same writers, lawyers, sociologists and experts do not agree on the true and total definition of hate crime. The Congress of the United States defined hate crime as a crime in which “the defendant’s conduct was motivated by hatred, bias, or prejudice, based on the actual or perceived race, color, religion, national origin, ethnicity, gender, sexual orientation or gender identity of another individual or group of individuals” (Kelly, 1998, p. 110). Meanwhile, other police organizations the United States define hate crime as criminal offenses committed against persons, property or society that is motivated, in whole or in part, by an offender’s bias against an individual’s or a group’s race, religion, ethnic/national origin, gender, age, disability or sexual orientation (Jacobs, 2001, p. 59).
In legal parlance, the term hate crime is diversely defined throughout the United States. The District of Columbia defines hate crime as crimes in which victims are selected because of a perpetrator’s bias against a victim’s perceived race, religion or ethnicity (Levin, 2001, p. 98). However this definition is different when compared to other states in the Union since these states define hate crime in which the victims are chosen because of his/her sexual orientation (Levin, 2001, p. 100). The California Penal Code section 422.6 offers a wider interpretation of hate crime, defining it as those acts “committed because of the victim’s actual or perceived race, color, religion, ancestry, national origin, disability, gender, or sexual orientation (Perlmutter, 1999, p. 210). The law against hate crimes punishes actions considered criminal by using force or threat of force in order to injure, intimidate or interfere with a person’s civil rights.
State hate crime laws in the United States vary immensely in wording and in their definition of the phrase hate crime. Some laws employ a language of civil rights as can be seen in California when it adopted an “Interference with Exercise of Civil Rights” statute that states that no person, whether or not acting under the color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the constitution or laws of this state or by the Constitution or the laws of the United States because of the other person’s race, color, religion, ancestry, national origin, or sexual orientation (Hawkins, 2003, p. 165).
In contrast, some states employ the language of “ethnic intimidation or malicious harassment.” In 1983, for example, Idaho adopted a “Malicious Harassment” law that declares it shall be unlawful for any person, maliciously and with the specific intent to intimidate or harass another person because of that person’s race, color, religion, ancestry, or national origin to cause physical injury to another person, damage and destroy, or deface any real or personal property of another person (Hawkins, 2003, p. 201).
Another law that is against hate crime is Bill SB 1234 passed by the California legislature. In this piece of legislation passed by the California legislature, persons of all sexual orientations are protected from hate crimes (Perry, 2005, p. 51). One strong objection with regards to this law is the act of criminalizing incitement to violence if a hate speech would result in physical harm for the protected group of individual (Perry, 2005, p. 52). This law therefore criminalizes the act of inciting violence if the probability of harm is high. Although this law is passed in the legislature, other interest groups are against this law since in their view it restricts and obstruct the practice of free speech as mandated by the First Amendment. It is said that this law against hate crimes is an attack upon the religious freedom in the United States because the law punishes the thought and ideas of an individual and not the wrong or criminal act (Perry, 2005, p. 53). This law as stated by groups that are against this hate crime law is an attack on the ability of an individual to criticize and comment on certain groups of people,
In 1990, President Bush signed the Hate Crime Statistics Act that requires government officials specially the Attorney General to collect statistical data on crimes that manifest evidence of prejudice based on race, religion, sexual orientation or ethnicity (McDevitt, 2002, p. 87). Since this law is primarily concerned with data gathering, it merely requires the Attorney General to collect and to make available to the public certain statistics on hate crimes (McDevitt, 2002, p. 77). Although data collection with regards to hate crime is important it does not answer the need to develop an effective policy that can be used by the federal government in prosecuting and punishing hate crime offenders.
Supporters of this law meanwhile argued that mere data collection could help law enforcement officials in measuring trends, fashioning effective responses and designing prevention strategies (McDevitt, 2002, p. 100). In 1994, Congress passed two more laws that deal with hate crime. The Violence against Women Act specifies that “all persons within the United States shall have the right to be free from crimes of violence motivated by gender” (McDevitt, 2002, p. 109). This law also allocated over .6 billion for education, rape crisis hotlines, training of justice personnel, victim services especially shelters for victims of battery and special units of police and prosecutors to deal with crimes against women (McDevitt, 2002, p. 110).
Congress has also passed the Hate Crimes Sentencing Enhancement Act. This law identifies eight predicate crimes–murder; non negligent manslaughter; forcible rape; aggravated assault; simple assault; intimidation; arson; and destruction, damage, or vandalism of property–for which judges are allowed to enhance penalties of “not less than three offense levels for offenses that the finder of fact at trial determines beyond a reasonable doubt are hate crimes” (Gerstenfeld, 2003, p. 207). For the purposes of this law, “hate crime” is defined as criminal conduct wherein “the defendant intentionally selected any victim or property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person” (Gerstenfeld, 2003, p. 208). Although broad in form, this law addresses only those hate crimes that take place on federal lands and properties.
Many oppose hate crime laws, stating that imposing a greater penalty on an act committed in hate would thus make hating illegal (Levin, 2001, p. 98). Some Americans feel this to be a direct infringement on First Amendment rights. Others argue that such legislation provides special status to certain protected groups. They also say that distinguishing a hate crime requires reading the mind of the accused, a dubious prospect at best and perhaps not something that should be considered when deciding on punishments. In short, critics argue that hate crime legislation criminalizes thought and also clearly violates the Fourteenth Amendment by denying “equal protection of the laws”. In addition, hate crime prosecutions seek to punish an individual for motive rather than intent. For example, the difference between first or second-degree murder is intent, not motive (Kelly, 1998, p. 100).
It is also said that hate crime laws are largely unnecessary, as a crime committed solely on the basis of hatred of a group would already be punished harshly by the justice system. If no argument could be made in mitigation, thereby reducing the culpability of the offender or the seriousness of the offence, the offender would be sufficiently punished to the full extent of the law. Others support hate crime laws, stating that by enacting them individuals would face greater discouragement from committing hate crimes. They also point out that all laws are subjective, and that if society can determine that one crime deserves more punishment than another then it can also determine what motivations deserve harsher punishments (Jacobs, 2001, p. 129).
Some supporters reason that one who can be moved to violence by hatred of a class of people presents greater danger to society than one who merely hates an individual. Their position states that if normal punishments are inadequate deterrents, then additional punishments may deter crimes motivated by hate. Other proponents of hate crime legislation consider that politically correct or socially sanctioned hate is a problem, and that legislation will need to explicitly cover those often deemed less worthy of protection (Perlmutter, 1999, p. 59). Another argument sometimes advanced by supporters of hate-crime laws are that violent acts motivated by political or similar reasons are characteristic of earlier, less enlightened societies, and toleration would result in regress. Proponents point out that it is not unusual to make thoughts or states of mind elements of a crime (Perlmutter, 1999, p. 45).
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