Do “Hate” Crimes Have to Involve Hatred?
The relevant language of the law provides for longer sentences when a defendant was motivated to select her victim in whole or substantial part “because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of [the victim].”
How does one interpret the language of the statute? On its face, it appears to cover the decision to target a person because he is gay, even if the “belief” regarding gay people has to do – as defense attorneys claim here – with opportunism rather than hatred. According to the defense, the choice of a gay victim reflected a belief that a gay man would be more willing to meet in a deserted spot, more likely to show up alone and to be in possession of money or drugs, and less likely to resist attempts to rob him. If hate need not be proved, defense attorneys add, one could classify crimes against the elderly, women, and immigrants – selected for their perceived fearfulness and inability to fight off assailants – as hate crimes.
The dispute between the defense and prosecution seems squarely to raise the question of what is the essential point of hate crime statutes. If the point is to address “hatred” of particular groups, as the word “hate” in the title suggests, then prosecuting a robber for picking old women as easy targets would seem misconceived, inappropriately exposing garden-variety robbers to enhanced sentences. It is natural for criminals more generally to choose a victim who they believe will offer the greatest payoff at the lowest risk. That stereotypes play a role in guiding such choices does not make them hate-motivated, in the way that a lynching is.
When an employer decides to fire an employee because of the latter’s race, it may be out of the belief that people in particular racial groups are less intelligent or able than people in other racial groups. A holder of such a belief does not necessarily feel any hatred or animosity toward the perceived “inferior” group. Similarly, an employer who refuses to promote women because they believe women’s priority will be their families rather than their job does not necessarily “hate” women, but he or she does still discriminate against them on the basis of sex. As a society, we believe that such discrimination is qualitatively different from, and worse than, decisions (to terminate, to fail to promote, and to rob or kill) that have nothing to do with invidious classifications.