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The White House has announced that President Obama will sign new legislation which adds provisions to include Gays and Lesbians among the groups protected by special hate crimes legislation. It would be a great idea, if hate crimes legislation itself was a good idea, but it’s not. Hate crime laws undermine the fundamental purpose of any healthy system of justice by using the penal code to address social issues instead of punishing those accused of committing particular crimes.
While the problems which hate crimes legislation address are generally real, and in the case of Gay and Lesbian Americans who face specific dangers on a regular basis simply because they are who they are, such problems are all too real. Nonetheless, such legislation is not the way to correct this problem.
Punishing individuals for what they believe and not what they have done is a scary precedent which avoids the real cultural challenges we face and potentially devalues the significance of crimes not rising to the level of a hate crime. Just ask the victims’ families.
Does it matter to victims’ families why they are burying their loved one, or visiting them in a hospital? Of course not. And only those who seek to politicize a particular crime would distinguish between crime victims based on their race, religion, or sexual identity.
And while hate crimes laws are not a good idea, the underlying problems which give rise to them must be addressed. Here are two possible ways to do so without undermining the cornerstone notion that we punish acts not thoughts.
Bottom line, there should be one law for all people and altering that principle is not the way to address the fact that sometimes it does not work out that way. The way to address that problem is with vigorous prosecution of all criminals, regardless of who they hurt.
First, prosecutors could avail themselves of terrorism laws which do acknowledge the special severity of a crime whose intent was to do more than harm the individual or individuals immediately affected. This is not the same as a hate crime which punishes criminals for their emotions, and entirely in line with our penal code which already acknowledges that intent, can and should be a factor in determining the severity of a crime.
Unlike hate crimes legislations, the issue here is not the special treatment given to any part of the population, but the ability of prosecutors to prove that the intent of the criminals was to cause harm beyond those they physically hurt. Such terrorism prosecutions could be put on against those who attack schools as much as those who attack gay people. The issue would be the scope of the damage they did, not the special status of those against whom they acted.
Secondly, we should closely monitor prosecution rates for those who attack especially vulnerable members of our society. Those who attack them should not be punished more harshly than they would be had they attacked a “regular” person, but neither should those who attack the more vulnerable or less popular among us anticipate an easier journey through the justice system. Criminals need to know that if they commit a crime against a “less popular” member of the community, it makes no difference – they will be prosecuted to the full extent of the law.
If, and, when the rates of prosecution or terms of sentence against those who are guilty of attacking the more vulnerable among us, begin to differ from those leveled against the entire criminal population, it is we who have to be cautious. When that happens, the issue may well be the hate we feel, not the hate the criminals feel.