By Scott Tibbs.
Published in the Indiana Daily Student, January 10, 1998
In his "national dialogue on race," President Clinton has in recent months supported stronger legislation against hate crimes, motivated by the race, gender, sexual orientation or ethnicity of the victim. Some social conservatives might be concerned Clinton would put sexual orientation on the same level as race in regard to the hate crime legislation he supports. But by making this argument, conservatives have essentially declared defeat in this battle. The question should not be whether behavior should be included in hate crime legislation. If we are going to have hate crime legislation, it is only fair to protect all victims of hate crime, not just one group or another. We are all people, and violence is never acceptable in a civilized society.
The real question should be whether we should have hate crime legislation at all, and there are strong reasons why the answer should be an emphatic "no."
Before we get into a discussion on whether or not hate-based crime should be punished distinctly from criminal activity not based on hatred, it should be noted the distinction between hate crime and other crime is not an issue of whether or not motivation should play a role in the prosecution of criminal activity. Clearly, motivation is the foundation of criminal law. If an unfortunate incident occurs where someone accidentally kills someone else and is not negligent in that killing, he or she is not punished in the same way as someone who intentionally murders another human being. For example, if someone's brakes suddenly fail and an accident results in death, the individual driving the car would not be held responsible, assuming the person had no knowledge the automobile was unsafe to drive. It was simply a tragic and unavoidable accident, not to be confused with intentional vehicular homicide.
The point that must be raised is this: If we are dealing with intentional criminal activity, should the motivation of the criminal be the driving factor in how the case is handled? Looking at two possible motivations for burning down a church is a good way to look at the problem. In one instance, a skinhead burns down a predominantly black church in an act of racism. In another, a burglar burns down another predominantly black church to cover up his crime. In both instances, the people are without the church and have to look for another place of worship. Both instances are tragic, but should the skinhead be punished more than the burglar?
The answer, again, is no. Both instances are examples of intentional criminal arson and should be punished equally. I don't think we as Americans want to get into the business of legislating what people are allowed to think. That is a very dangerous slippery slope to the loss of freedom of expression. If today we say a hatred-based beating or murder is worth special consideration, what about tomorrow? Do we reign in free speech in an attempt to regulate speech that might lead to violence? No matter how much we detest racism, we must be very careful about punishing criminals because of what they think. And if we regulate racist speech, what would be next? Will we regulate "homophobic" speech in America's churches, synagogues and mosques? The implications of this on free speech and freedom of religion are frightening.
What about factors that show hate-motivated crime is part of a pattern? In this case, we already have laws on the books to combat this. A crime is punished more severely if it is premeditated as opposed to a crime of passion. If skinhead criminals have premeditated a racially motivated attack, they can and should receive harsh sentences.
Despite Clinton's posturing on this issue, we should prosecute criminal activity, not criminal thought. We don't want to start down the slippery slope that could result in the arrival of the Thought Police.