Posted by Sherry F. Colb
My column on FindLaw today focuses on conservative critiques of the hate crime bill that President Obama is scheduled to sign into law today. The law would extend federal hate crime status (subject to federal prosecution) to otherwise criminal acts that involve victims selected on the basis of sex, sexual orientation, and disability. Some critics have suggested that hate crime laws amount to "thought crime" laws because they differentially punish conduct on the basis of what's going on in the perpetrator's mind. My column explains why this critique is ill-founded and would, in any event, prove too much for the critics' own taste.
In this post, I want to raise a distinct question about hate crime laws, which is whether it makes sense to single out classification (e.g., selecting a victim because he is gay) rather than underlying purpose (e.g., harming a person belonging to a group you hate).
Consider an example. A robber might decide to choose a victim on the basis of disability. A victim who is blind, for example, will have a more difficult time identifying the perpetrator than a sighted victim would have. A victim who is in a wheelchair will have a more difficult time pursuing the perpetrator than a victim who is able to run. If a robber chooses the victim in this way, does the fact that he is selecting his victim on the basis of a disability make his crime worse than that of a different robber who does not make this choice? Isn't his choice more opportunistic than it is hateful? And should this matter?
To put these questions into context, consider the murderer who selects his victim because the victim is gay, and the murderer hates gay people. The murder here (of Matthew Shepard, for example) strikes many people as worse than a murder that is not motivated by hatred of gay people (e.g., the murder of an employer in retaliation for his firing of the perpetrator). The crime is truly a "hate" crime, driven by animus, and is not simply opportunistically targeted at a gay person.
In both sorts of cases, the perpetrator is choosing his victim because of the victim's membership in a particular class. What differs is the answer to the second-order question of why the perpetrator is selecting a victim on the basis of a prohibited category. Some reasons for selecting victims on the basis of race, sex, sexual orientation, etc., seem to many to be more reprehensible than other reasons for selecting victims on these bases.
I do not have a definitive answer to this question, but I am inclined to favor the classification approach to hate crimes (to the extent that having hate crimes is a good idea at all, which is a question for another day). Determining why a person chose a particular victim is a challenging enough endeavor, in part because it is difficult to know why people do what they do and in part because even the people in question may not know what ultimately drove them to act as they did. To require an inquiry into what exactly motivated the perpetrator to select the victim for the reason he did adds another layer of complexity and difficulty to the process.
If we want to have laws that specifically penalize hate crimes, the classification-based selection of victims is a useful (if not perfect) proxy for classification-based animus. Requiring greater precision (in the form of "X selected Y because of his gender identity on the basis of X's hatred of people with Y's gender identity) is unlikely to succeed and will commit resources to an inquiry that may ultimately be unanswerable.