US Hate Crime Legislation: A Legal Model to Avoid in Australia

Article excerpt

Introduction

The 1990s have seen a rush in the US to criminalize hate-motivated actions carried out against persons or property. This trend owes a significant debt to the difficulties involved in stifling hate speech, which vilifies minority groups, given the sanctity of `free speech' under the First Amendment of the US Constitution. The criminalization of hate-motivated actions has involved three significant and interrelated trends. First, by the beginning of 1999, 43 states (including the District of Columbia) had enacted hate crime statutes which have involved determining the mental intent, or mens rea, of the offender in the form of actions which are `because of hate, motivated by hate or bias, involve a racial animus or a deliberate selection of the victim due to hate' (Lawrence, 1999: 178-89). Second, with the exception of Texas and Utah, determining a mens rea of hate on the part of the perpetrator has gone hand in hand with delineating the characteristics of particular victim groups who are recognized as being specific targets of that hate. Statutes are thus generally phrased in a way that indicates that an offender has been motivated by a particular kind of hate. Whereas 41 states have identified racially motivated hate, coverage of other groups has been more patchy. For example, 40 states have identified hatred of a religious group, 22 hatred of sexual orientation, 22 hatred of gender, 19 hatred of persons with a disability, eight hatred based on age and only four have recognized hate-motivated crimes based on political affiliation (Lawrence, 1999: 178-89).

The third and final trend has seen a total of 25 states determining hate crimes to be more heinous than others and thus deserving of additional punishment. The logic here is said to be similar to the logic that punishes murder more severely than manslaughter due to the differences in intent. (Indeed, the additional prosecution duty involved in proving a hate intent on the part of the offender seems to place an extra burden on the state to no real purpose if extra penalties do not apply.) This has resulted in statutes and related provisions being enacted that have legitimized either elevating the degree felony of the crime and/or imposing longer gaol sentences or penalties for such crimes. Vermont's statute, for example, doubles the maximum gaol time allowable for a person convicted of hate crimes against victim groups recognized in that state (Jacobs and Potter, 1997: 7). With the exception of Kentucky, all states allowing for enhanced penalties have identified the specific victim groups that attract these extra penalties (Lawrence, 1999: 178-89).

In summary, then, the major trend in US hate crime legislation to date has been the establishment of a mens rea of hate by an offender who targets specific, legislatively recognized groups for which enhanced penalties can or do apply. Close to 60 percent of US hate crime legislation follows this pattern. The recently enacted Crime and Disorder Act 1998 in Britain also follows this pattern. This paper will offer a critique of this trend, which will be referred to as the `enhanced penalty/identified groups' strategy. I intend to critique hate crime from the point of view of the barriers to identity formation and social movement momentum that can arise for particular groups who are targets of hate. This approach differs from most opposition to hate crime legislation, as it is articulated in the US. Most opposition directs itself to:

1 the inherent problems involved in establishing the mens rea of the offender;

2 arguing that singling out hate as a motivation which deserves special punishment is discriminatory and ignores, for example, the pernicious social consequences flowing from crimes motivated by other emotions, such as jealousy or greed, and;

3 that enhanced penalties for hate crimes are undermining the democratic right to equality before the law.

In the first part of this paper, I will present the main position of proponents of hate crime before outlining the linkages in the US between social movement power and being recognized as a victim of hate in that country. …