Hate Crime Legislation: Criminal Minds?

A while back I was having dinner with a friend and the subject of hate crime legislation came up. My friend, Danny, was surprised to find that I was not in favor of it. When he expressed his skepticism regarding my stance I asked him if he was in favor of gay people serving in the military. He said he was. I told him I thought that it was intellectually indefensible to hold that view and be supportive of the concept of amplified punishment for bias crimes. Twenty minutes later we were still slugging it out.

For the record I am emphatically in favor of homosexuals serving in defense of our nation. One of the standard arguments used to validate an exclusionary policy with regard to this issue is that having openly gay service members could create an opportunity for sexual activity and or harassment amongst members of our armed forces. With out putting to fine a point on it the intellectual myopia here is breathtaking. The various branches of the US military are already co-ed and have a phone book full of rules concerning fraternization amongst the ranks. With all that in place the only thing left to object to is the sexual orientation of the service member in question. If the behavior has been regulated then the real issue seems to be one’s state of mind. The idea that the government should have the capacity or even inclination to criminalize a persons thoughts is disturbing to say the least.

Which brings me back to the top of the page. The emotional content aside the strongest intellectual position in favor of unfettered gay military service is that the central line of opposition has already been addressed at a practical level. The only thing left is the unstated bias of that opposition. If (as I would hope) that sort of thing is an anathema to a person that I would also hope that the fundamental ethical concerns hold up to an alteration of perspective. If you find it unacceptable that a person’s thoughts be used to restrict their opportunities it should also be unsuitable to use their state of mind (even if it might be genuinely heinous) to increase the severity of their punishment in court.

Particularly galling to me is the dichotomous nature of the way our legal system treats the concept of motive. At the prosecutorial level, motive is not a necessity. As a practical matter delineating a criminal’s motivation helps make for a stronger case for The People. Knowing why somebody did something makes it easier to believe that they did in fact do it. It is not, however, a deal breaker. Defendants have been, and will continue to be found guilty in cases where their motives can not clearly be demonstrated. A big enough pile of physical evidence can be quite convincing to a jury. The reason for this is obvious. It would be dangerously irresponsible to fail to hold a criminal to account solely on the basis that their criminal activity is inexplicable to us. More than anything else, we are what we do. The desire to see certain thought processes demonized is viscerally understandable, but still a mistake. Can we really hold sacred the right to free expression and then decide that the mentation indicated by a select type of expression is if not inherently criminal that at least worthy of judicial outrage in the form of extended incarceration? The identity politics pandering that promulgates this kind of thinking is, or at least should be, insulting.

When I was in my early twenties I lived about as far southeast in Brooklyn as was possible. I worked as a lifeguard in Brooklyn Heights. Long bus ride. When weather permitted I rode my bike. The shortest path led me through Prospect Park. This was 1982, not the 70’s, but not today either. The park was still a dangerous place. I wouldn’t ride through after sunset but late afternoon was worth the risk. Even pedaling hard and staying in a tight tuck I got hit by a rock on more than one occasion. The fact that kids using me for target practice seemed to be fixated on my lack of melanin wasn’t that big a deal to me. Hating whitey or just looking for a deep discount on a mountain bike they were doing their best to brain me. At times I managed to get through unmolested. It didn’t matter to me that those kids hated me. What mattered was whether or not my life was in danger.

Most irritating to me now is listening some blowhard celebrate the importance of living in a country that allows for the Nazi’s to march in Skokie ( true enough) and scarcely take a breath before championing the cause of hate crime legislation. The idea that they’re really just patting themselves on the back over what amounts to an indirect assault on the first amendment can not be explained to them. Being on the “right side of history” is everything in their eyes. I can only imagine what they think of me during one of these debates. Then again, as long as they behave who cares what they think. See guys, that wasn’t so hard.

5 thoughts on “Hate Crime Legislation: Criminal Minds?

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