hate crimes weirdness

JKSCHW at aol.com JKSCHW at aol.com
Wed Mar 1 08:41:54 PST 2000

> Really? Isn't punishment for one's motivation a further step down the road
> to criminalising what people think? Traditionally legal systems have
> punished people not for what they think but the acts that they intentionally
> commit.

No, the bad mental state (mens rea)--for example, "intentionally"--is part of the crime, as well as the bad act (actus reus). Strict liability crimes that don't include a mental state exist, but are rare.

> Whatever the person's motive, all the court wanted to know was
> whether there was a criminal act and whether it was committed intentionally

Motive isn't the the issue here. Since the crime includes a mental state anyway--the usual list is one or more of: purposively, intentionally, knowingly, recklessly, negligently--there is nos pecial problem with adding a new mental state, "hatefully."

> by the defendant. Sentencing was of course a different matter - the nature
> and circumstances of the offence, motivation, the defendant's character,
> police records and social enquiry reports could all be taken into account
> when deciding the form of retribution. The introduction of motivation into
> the process was not about sentencing - it effectively created a new crime.

But if you allow someine to be sentenced for acting hatefully when they are not convicted of it, why is that an improvement in the thought-crimes department?

> It is important that motive should be disregarded in the matter of criminal
> liability because in a free society the law punishes acts not thoughts. You
> can only be held responsible for what you do, not what you think, believe or
> want.

Not _merely) what you think. If I want to kill you, that's my business. But if I act on that want, what I think is an element of that crime. So, if I hate Blacks, that's my business. but if I beat or kill Blacks because I hate them, why isn't that punishable?

> Only those acts which are harmful are prohibited.

Not true. There are lots of victimless crimes such aprostitution that harm no one and may in fact only help people.

While there are many
> types of harm recognised by the criminal law, in recent years, the
> category of mental harm has unfortunately been much expanded.

But hate crimes may involve physical violence or destruction of property.

While harm
> originally centred on the disruption of the public peace by threats or
> abuse, now it becomes distress to one person caused by just about anything.

This is just not true in the law.

> There is also now a tendency to categorise as harmful those
> acts which persuade or encourage another to commit a harmful act. It is here
> that we see the expansion of the category of "hate crimes".

No, the law on incitement to unlawful activity has remained unchnaged since 1965 or so. Hate crimes are different, typically it is a matter of enhanced punishment for killing or beating someone because of race or sex or something like that. In fact Brandenburg, the Ohio case that governs the 1A law about incitement to unlwaful activity, was a Klan case, and the defendant's conviction was reversed because the incitement to take "revengance" was not specific or immanent.

Justin Schwartz (a lawyer)

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