Allow myself to introduce…myself. I’m bean, one of the guest bloggers Jill has recruited for the week. Like Jill, I’m a New Yorker and a long suffering law student. My internet home is over at A Bird and a Bottle, where I focus on feminism and criminal justice and particularly the intersections between the two, but I’m happy to be taking up residence at hotel Feministe for the week. And away we go.
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Last week, in a flurry of chest puffing and pounding, President Bush threatened to veto the hate crimes bill passed by the House and headed toward approval in the Senate. The bill, sponsored by Rep. John Conyers, would expand the definition of hate crimes to include crimes motivated by the victim’s sexual orientation, gender, disability, and probably gender identity (i.e. trans men and women), though that’s not clear in the bill’s text. Bush (laughably, I think) claims that state law already protects the rights of these groups.
The trouble is, the L.A. Times, whose editorial page is usually spot on, seems to have taken the Bush bait. In an editorial yesterday, the paper lauded the bill as it applies to sexual orientation, but claimed that it’s unnecessary to protect people from gender or gender identity motivated violence:
The problem is that the House bill goes further, by including gender and disability in its definition of hate crimes. According to the FBI, fewer than 1% of hate crimes in 2005 reflected a bias against the disabled. Although the FBI doesn’t keep count of gender-bias crimes, California does, and only 1.3% of the state’s hate crimes in 2005 involved “anti-gender bias.”
Huh? I wonder how the FBI and the state of California got those statistics. Because it seems to me that they must have relied on a very narrow understanding of what violence is gender motivated. Take rape, for example. I would argue that rape can be a hate crime (usually against women). But I’m pretty damn sure it wasn’t included in that 1.3%. For perspective, according to the FBI, hate crimes based on sexual orientation account for over 14% of the hate crimes nationwide.
And what about gender identity? According to the National Center for Transgender Equality, while 29 states have laws that protect people based on sexual orientation, only seven and D.C. protect people based on gender identity. Transgender people are estimated to be 7-10 times more likely to be murdered than the national average. Yet gender identity is only implicit in the new hate crimes bill; the bill’s sponsors in the House have indicated that they intend “gender” to cover gender identity, but it’s unclear whether the Senate will agree.
The LA Times is right to point to the importance — necessity, really — of a law that explicitly protects the rights and safety of gay women and men. But by minimizing the need for a similar spotlight on women and transgender men and women, the article plays a part in the continuing normalization of violence against them.
(also at A Bird and a Bottle).
The intention behind hate crimes legislation is often admirable, but unfortunately they’re often used against the very people that liberal and progressive advocates thought these laws were supposed to protect. The unfortunate state of affairs is that our criminal justice system disproportionately targets and punishes certain people based on race, economic class, age, and definitely gender expression too, among other factors. As idealistic as we might want to be about the effectiveness of our legal system to find the real wrongdoers and mete out appropriate and deterring punishments, we can’t assume that it’s just going to happen by passing a law. And in fact, I saw a “pros and cons” presentation by the NCTE just a couple years ago that admitted that hate crimes laws have not been shown to have any deterrent at all… and they’re one of the organizations that has been pushing for this legislation, in part because of the political symbolism, what it represents in ideological circles.
The lack of deterrent on real racist hate crimes might be because these laws, in racial hate crimes for instance, are most often applied not to white racists who have committed violence against people of color, but the other way around. You’d think that this would make some conservatives root for these laws, but it’s just not widely known that hate crimes “sentencing enhancements” end up being used this way by a racist system. Statistics about this have been documented by Lisa A. Crooms in a paper called “Everywhere There’s War: A Racial Realist’s Reconsideration of Hate Crimes Statutes” (2000) that I recommend trying to find if you’re interested. Unfortunately I wasn’t able to locate a copy online, but I believe she notes that something like 80% of the application of racial hate crimes statutes are against people of color, even though if you look in the FBI statistics on who is the victim of hate crimes, the proportions are vastly reversed.
I like the idea of hate crimes legislation, but I think it sortof misses the mark.
I just think it hurts the idea that we are all equal in the eyes of the law. (Even though I know that is still only an idea.) I don’t know that the solution to the problem of hate lies in legislating against it, is their evidence that hate crimes legislation has effectively deterred further hate crimes?
The point of hate crimes isn’t to criminalize thought or punish intolerance per se. The effect of hate crimes is to terrorize and intimidate a certain group. A random mugging isn’t going to be punished differently when the prosecutor finds out the victim was gay. That’s just incidental. It’s when someone attacks to send a message to an entire community that hate crimes laws are in effect.
You’re right. Rape isn’t considered a hate crime. According to Cali’s statistics there were 8,115 forcible rapes in 2005 but only 4 gender related hate crimes against women. Ridiculous.
Er, I think you kind of miss the point of hate crimes laws. It has nothing to do with anyone being “less equal” in the eyes of the law. In fact, it’s supposed to equalize things by making it more clear that you can’t persecute minority groups whenever you feel like it and nothing really bad will happen to you, because it will be “just” a simple assault in the eyes of the law when you, say, beat a total stranger into a coma with a baseball bat because he’s gay but you didn’t steal his money, so it’s a lesser crime than if you’d beaten him while robbing him.
While I’m still undecided about hate crime laws, I understand where its supporters are coming from.
But as capital punishment hasn’t reduced murders, why do we think hate crimes laws will reduce hate crimes?
I believe that both capital punishment and hate crime laws are more about politics than crime reduction.
I just think it hurts the idea that we are all equal in the eyes of the law.
No it does not. Check both existing hate crime laws in the United States and the more expansive definition in Canada. In neither case does it make an Orwellian “some animals are more equal than others” situation – instead, as others have pointed out, it is essentially little more than recognition of the impact of that crime on the victim.
The real problem with such laws is that they really involve proving specific motive or intent, which can be extremely difficult. Intriguingly, it is the this very difficulty which limits how far the law itself can reach. The primary reason that such laws cannot be used effectively to suppress clergy in their sermons is that the the clergy should be able to tie what they are saying back to scriptural interpretation that is fairly reasoned. (I daresay that might be a bit difficult for clergy like Phelps…but that’s an unusual case).
It may seem that way, but the language of the statute actually protects everyone from crime based on those categories. For example…you can’t beat a white, hetero male up just because you hate white, hetero men.
A recent seminar I went to suggested that this result as well as the higher sentences for people of color were the result of inadequate legal representation. I’m not sure I fully agree with their conclusion, but it makes sense to me that inadequate representation might be a piece of that puzzle.
Deterrence is one reason for a punitive criminal justice system, but not a very good one — and not the only one. Hate crime legislation isn’t about deterrence — it’s about an adequate punishment for a broad crime. As others have said above, the issue with hate crimes is that they don’t just attack an individual; they’re intended to be an attack on an entire group, and to inspire fear within all members of the group. Expanding punishment, then, makes sense, since the victim base is wider than individual crimes.
I’m sorry, that’s just silly. That’s like saying, “Well, putting people in jail for murder doesn’t reduce the murder rate, so we may as well not jail people at all.”
Unfortunately, as with any criminal law, simply passing the law has zero effect on the actual crime rate. All it does is allow you to punish the criminal. The only thing that does affect the crime rate is sociological stuff like the employment rate and education.
Another example: strengthening the laws against rape had zero effect in lowering the rate — that had to be done through education and changing societal attitudes. That doesn’t mean we should stop prosecuting rapes because there’s no deterrent effect in prosecuting them.
I disagree. I think it’s more like saying “executing murderers doesn’t reduce the murder rate, so let’s stop executing them”.
I’m all for stiffer penalties for violent criminals. I’d support a “two strikes” law for them. Two violent offenses, life without parole.
That’s my issue with hate crime laws. I believe that a criminal should be held accountable for what they did to their victim, not for how it makes members of the victim’s race, gender, or sexual preference feel.
Hate crime laws might make some people feel good (as does capital punishment), but I don’t think they will actually prevent crime.
Oh I’m sure it’s a piece of the puzzle. Inadequate representation in our court system for poor people, homeless people, people of color, immigrants, transgender people, etc? It’s an everyday occurrence. It’s a huge majority of court cases around here and I’ve seen it with my own eyes, even when you have pro bono litigators who are doing a good thing, it’s often not adequate because of language and cultural barriers and misunderstanding of people’s lives and patriarchal attitudes and the list goes on.
I’m sure that’s one part of it, and that’s also one part of why our whole criminal justice system has a net effect of being racist and classist.
And that’s why the evidence so far seems to show that the racial aspect of hate crimes laws has ended up in more people of color being mistreated by a racist system. Hate crimes laws are just bolstering racist processes that are already there, not reducing racism. Feminist authors, women of color, are pointing this out too.
This latest legislation is not about “sentencing enhancement” which is perhaps the part of hate crimes laws that has had the most destructive effect on communities of color, but it does try to increase the number of prosecutions that can be made of hate crimes by increasing federal jurisdiction. Do I trust the feds, at least in our current administration, to use these new powers fairly as opposed to in a way that continues to be complicit with the racist justice system? Of course not. I am going to be sadly unsurprised if I hear about some part of this legislation being used against some queer or trans POC who ends up on the wrong side of the law — which happens way more often than homophobes or transphobes ending up there.
I should have pointed out in my post that I acknowledge that hate crimes bills don’t necessarily deter crime. But I agree with Jill that that’s not necessarily their central purpose.
And while I am sure that Holly is right that hate crimes laws may be used against the very communities they are supposed to protect (just as the Catharine MacKinnon style anti-porn law in Canada was first used against lesbian literature), I’m not sure that just not having those laws would spare, say, trans women who end up on the wrong side of the law the same bad treatment. The problem in that situation is the attitudes of law enforcement officers and prosecutors, not to mention prison superintendents.
Someone earlier in the comment thread made the very important point that a big piece of this puzzle is lack of electoral representation for the targeted groups. I totally agree. Hate crimes laws are a band-aid that might help the wound heal a little. But more equal and more vocal representation is a longer term and fuller solution.
Excellent point. Damned if I know how to fix it though.
The thing you really have to remember about the 1.3% statistic though, especially when comparing other hate crime statistics, is population size. When you compare the population size of the trans community with that of other communities, the trans population is usually much smaller. Meaning 1.3% is actually a pretty big number.
A more useful statistic would be the percentage of people within the trans community who have experienced a hate crime. I have a feeling that number would be a whole lot larger than 1.3%.
So at what point does a minority become small enough to ignore?
“Well, there’s lots of black people, so we’d better make sure they get legal protection. But there are only a couple queers and crips, they won’t make much of a fuss, y’all can keep beating them to death ’cause they don’t matter.”
Also, I’d be interested in knowing how many members of whatever minority, when faced with the above attitude, rush right down to the police station to report the hate crime they’ve been victim of. Sure, it’s a little obvious when someobdy gets murdered, but if somebody’s beating you up daily and they have social pressure on their side, what hope do you have that you’ll be heard?
I agree with those arguing that hate crimes will be used by racists and homophobes to further victimize minorities. White (racist) guy gets mugged by a black guy? Tell the judge he called you “cracker” or “whitey”, and now it’s a hate crime. Add a few more years to his sentence.
Also, I’m not sure if I like determining sentences based on how it affects people who weren’t victims of the crime, but are merely members of the same group as the victim.
But much of the time, the point of the crime is intimidation. Burning a cross on someone’s lawn isn’t vandalism. It’s a threat designed to provoke a certain feeling–terror–in an entire community. Don’t live in this neighborhood. Don’t visit this place. Don’t come here after dark. The immediate target isn’t the only one.
It’s more than just Don’t live in this neighborhood. Don’t visit this place. Don’t come here after dark. A lot of queer-bashing happens in gay neighborhoods. Not just because that’s where the queers hang out, but to help reinforce the message: You’re not safe. Anywhere.
Bean, this is totally OT, but you’re one of my new favorite bloggers and I’m thrilled Jill invited you to guest post while she’s boozing it up.
Thanks Lauren. I really appreciate it. A lot. It’s scary for a small time blogger to put her thoughts out there to a much wider audience, and the support is much appreciated.
Lauren, dude, I am so hammered right now.
I’d like to join the bean love fest as well. LOL!
You would be, Jill.