Hate crime is not a thought crime
Critics of hate crime legislation espouse a mistaken view of the
criminal law. To illustrate, one critic argues as follows:
“The idea of a ‘hate crime’…asserts that hatred itself is
criminal and deserving of punishment…."
But our criminal law does not single out any mental state at all as criminal.
It punishes no thought no matter how detestable, how horrific. Why? One response is that the First Amendment, in guaranteeing freedom of expression, also shelters our thoughts from governmental intrusion. No inquiry into our thoughts alone are authorized: the criminal law has no jurisdiction here. This realm is private — and for priests, ministers and others, but not for the police and prosecutors.
But when certain thoughts inspire and express harmful behavior prohibited by criminal statutes, then the police and prosecutors are authorized to intervene. Our freedom of thought has erupted into actual or immient harm to others and is no longer sheltered.
In traditional criminal law language, a core crime must have a particular mens rea (evil mind) that is expressed in an actus reus (evil act) — e.g., an intent to kill or injure that is then embodied in an act of killing or injuring. The prohibited intent alone is insufficient for culpability: it must also be exemplified in a prohibited act. The two closely linked elements are essential for culpability.
To illustrate, if A, while driving to B’s office to kill or injure B, accidentally kills or injures B who is walking alongside the road, A is not liable for murder or assault. His act of killing or injuring did not express his intent. This would be true even if at the moment of striking B. A was renewing his intent to kill or injure B later at his office. This criminal law requirement is sometimes called a “unity of act and intent” or “concurrence.” [Liability for attempted murder not discussed.]
Applied to hate crimes, the intent to kill or injure infused with hatred must be expressed in an act of killing or injuring to establish culpability. And this hatred is usually expressed, isn’t it, in racist, homophobic, religious, ethnic or other vile epithets. The hatred is usually not hidden: it accompanies the killing or injuring and is often emphatic, as clear as lightning and thunder.
One final thought. As Stalinist and fascist societies embody their values into their criminal laws, our evolving democratic values infiltrate into our criminal law. It is no surprise then that our concern for the young and old has long resulted in enhanced punishments for crimes against them. And no surprise now that our laws incorporate particularized protection for those prohibited acts inspired and accompanied by expressions of racial, homophobic, ethnic, religious and other hatreds. While there's much more to the topic of hate crimes than presented here, this analysis is an important beginning.
John Delaney |
