There are two core issues to address with the law:

-actual physical harm (loss of freedom and or property)

-moral harm (perception of harm, feeling hated, etc…).

In the case of a person being beaten, abused, harmed physically because they are of a specific group, the act, harm and hate are co-mingled to a degree that makes the perception a reality. I’m ok with idea of hate crimes being advanced and refined to address these things.

However, when the act really does not affect the person and only property, I’m not totally sure the combination of law, as we currently see it embodied in hate crime statutes, makes the best sense. Why?

Because it becomes a matter of perception. Words and symbols really have only the impact one lets them have. Call me something and I can make a big deal out of it, thus my perception of harm (moral harm) is high. I could also simply ignore it for the foolish act that it really is and the perception of harm is then little to nothing.

Put another way, is there really any harm done when the target of the expression had no success in making said impression? What if the target thought it was humorous? Would the law then apply the same?

Shouldn’t we then classify these things into physical harms (loss of property & freedom) and moral harms (being offended)?

If so, the person being harmed should then be entitled to a criminal remedy for the physical harm and a civil remedy for their perceived moral harm.

One other contributing element here is the idea that we are all equal under the law. My core problem with hate crimes, as we currently appear to be evolving them, lies in the inequality they bring into the law. Either we hold everyone equal under the law or we just don’t. If we don’t, where do we draw that line? Having to address questions like this seems to me a huge step backward.

“Fear or hatred of homosexuals and homosexuality.”

Hey, I’ll agree with that definition. Homophobia exists; the extreme example would be the two human animals who killed Matthew Shepard.

“This assumes something which is at issue. I’d say that that it IS true that disapproval of homosexual behavior specifically (as opposed to sexual behavior generally) is necessarily irrational.”

Which is where I came out when I objected to the use of the term that gets pushed by many activists; that dissaproval of homosexual behavior is necessarily irrational (and/or is based on fear). I disagree. I suspect, however, that you and I could go around and around on that and not find a basis for agreement.

If a cross-burning led to a house burning down, we’ve got a hate crime AND arson. You suggested that because a cross-burning is “quite close to” arson, we don’t need hate crimes. You also seem to be suggesting that the intent to threaten and intimidate is unimportant; as long as the KKK is careful to burn their cross on a lawn where it won’t catch trees on fire, where’s the harm?

Here’s what I find for phobia:

And what do you find under “ailurophobe” and “homophobe”? Amp has already pointed out that the OED definition of “homophobia” includes hatred as well as fear. I’ll point out that “a phobia” is not the same as the suffix “-phobia”. You can do better than transparent linguistic tricks, Ron.

What other kind of things have been taken (or are anticipated to be taken) as evidence of a “hate crime” and fulfill the criteria given in earlier posts quoting the provisions of such laws?

And again, you don’t seem to have any beef with other crimes–arson, attempted murder–where intent is an issue. Why the sudden concern about “thoughtcrime” only when hate-crimes are involved?

The ’specifics’ are that you use exactly the same type of evidence to show intent as you would for any other crime–statements by the defendant, behavior consistent with the intent, and so on. You appear to be asking for an exhaustive list of everything any human could possibly do that would show hateful intent. Why?

Doesn’t say anything about hatred.

The Oxford English Dictionary — usually seen as authoritative — defines homophobia as “Fear or hatred of homosexuals and homosexuality.” So “hatred of homosexuals” is a legitimate way to understand the word “homophobia.”

Which actually bolsters my argument regarding “homophobia”; everywhere else the word or suffix are used, “phobia” means fear and/or irrationality.

Irrelevant. In English, etymology does not dictate meaning. Meaning is determined by usage, and in most usage “homophobia” is used as a counterpart to “racist” and “sexist.”

The use of the term for dissaproval of homosexual behavior tags said dissaproval as necessarily being irrational or based on fear, which is not true. It’s a rhetorical trick to close off debate by characterizing people who have such dissaproval with feelings or thoughts they don’t actually have.

I’ve seen this argument made many times, but I’ve never understood its foundations.

For instance, you seem to be saying that if I say “I think that argument is homophobic,” I’m trying to “close off debate.” However, I don’t think that’s what I’m trying to do. Furthermore, I’ve been in literally hundreds of debates about SSM, and not once has the result of saying “I think that argument is homophobic” been that the other person ceased disagreeing with me. So in that sense, the debate is not closed off.

Even if the other person chooses to stop responding after I say “I think that argument is homophobic” (which has happened to me a couple of times, but not more often then debates ending in other ways) in what way is that my responsibility? Isn’t the person I’m arguing with responsible for their own decisions on when to speak and when to stop? And if I’m responsible for shutting them up because my use of the word “homophobia” made them feel bad - does that mean they’re responsible for shutting me up if something they say makes me feel bad?

When I say “that argument is homophobic,” it’s usually a shorthand way of saying “I think we agree that bigotry against homosexuals is bad public policy. I believe that the policy under discussion would enact bigotry against homosexuals into public policy. Therefore, we should agree that this policy is bad public policy.”

Nothing about that is an attack on the person I’m arguing with. And nothing about that can reasonably be construed as an attempt to shut down debate.

My concern is that if we agree that it’s wrong to ever bring up the concept of “homophobia” and the related concept of “bigotry” in debate, then we’ve in effect agreed that “bigotry against homosexuals is bad public policy” is not a point that can be brought up or discussed in a policy debate. Since I think “bigotry against homosexuals is bad public policy” is a legitimate belief, I don’t understand why it should be in effect banned from polite debate.

Two more points.

The use of the term for dissaproval of homosexual behavior tags said dissaproval as necessarily being irrational or based on fear, which is not true.

This assumes something which is at issue. I’d say that that it IS true that disapproval of homosexual behavior specifically (as opposed to sexual behavior generally) is necessarily irrational.

It’s a rhetorical trick to close off debate by characterizing people who have such dissaproval with feelings or thoughts they don’t actually have.

Interestingly, here you commit the exact same logical error you’re claiming people who use the word “homophobia” commit - you attribute bad motivation to people you disagree with. And imo you do so wrongly.

The same kind of evidence necessary to establish, beyond a reasonable doubt, intent in any other crime. How do you show that somebody ‘intended’ to commit murder? That they deliberately, rather than mistakenly, walked off with somebody else’s purse?

And what kind of evidence is that? I’m looking for specifics, here. Not the obvious stuff, like someone who announces “I’m gonna kill me some damn wetbacks!” and then takes her deer rifle and hunts down a couple of Mexicans on the Texas border. What other kind of things have been taken (or are anticipated to be taken) as evidence of a “hate crime” and fulfill the criteria given in earlier posts quoting the provisions of such laws?

For someone who claims to be very concerned about fairness and wrongful punishment, you were awfully eager to punish cross-burning as arson or murder because it was “quite close to” those crimes or may, under different circumstances, have turned into those crimes. Why are you only concerned with due process for some hate crimes, but not others?

I wasn’t eager to do anything. I pointed out, quite reasonably I thought, that under some circumstances a cross burning could lead to other consequences and consideration of other charges. I didn’t think I had to spell them out. But if someone burned a cross in my front yard, it would be almost impossible to place the cross in such a way that it didn’t catch a tree on fire, which could endanger me and the whole neighborhood. That’s actionable. If I understand the law correctly (I confess I’m no lawyer), even the risk of such a thing has legal consequences past the initial act of cross-burning. Whereas about 1/2 a mile away, there are yards where you could build a 40′ bonfire and not have to worry about roasting anything but slow-reacting birds.

Here’s what I find for phobia:

Main Entry: pho·bia
Pronunciation: ‘fO-bE-&
Function: noun
Etymology: -phobia
: an exaggerated usually inexplicable and illogical fear of a particular object, class of objects, or situation

Doesn’t say anything about hatred.

Which actually bolsters my argument regarding “homophobia”; everywhere else the word or suffix are used, “phobia” means fear and/or irrationality. The use of the term for dissaproval of homosexual behavior tags said dissaproval as necessarily being irrational or based on fear, which is not true. It’s a rhetorical trick to close off debate by characterizing people who have such dissaproval with feelings or thoughts they don’t actually have.

“Malice aforethought” is a legal term of art distinguishing murder from manslaughter.

Good luck to people taking the bar exam today!

For almost all crimes, for example, we can’t admit “propensity” evidence. In other words, the criminal scheme is such that we can’t say “he was a robber before, so he’ll be a robber again.” You cant say that a defendant has a propensity to commit crime.

(we may be able to admit evidence of prior convictions, for a different purpose. And yes, the evidence gets misused all the time. I don’t have the time to go into that problem yet.)

An example:

If you are accused of assault, the prosecution cannot being in 10 people to testify that you have a “reputation for being violent” or that they are “scared of you”. They will not, depending on the specific issue, usually even be able to bring in someone to say “he assaulted ME a year ago.”

Sailorman is correct about not being able to use propensity evidence to prove a crime. However, evidence codes provide for using hate speech as relevant evidence under Rule 404(3): Evidence of other crimes, wrongs, or acts….may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

And you can introduce evidence of the violent character of a party in a civil assault and battery case if self-defense is pleaded and there is evidence to support the defense. Rule of Evidence 404(2)(d).

Prior convictions may be used to impeach the credibility of a witness, but not to indicate the witness acted in the same manner.

Hate speech is quite clearly evidence of the motive of a crime. If a defendant is heard to say, “Die, N-word, die!” and claims to not have committed an assault on a black person, the hate speech is clearly evidence of motive, and is admissible hearsay under the state of mind exception.

It also should be an aggravating circumstance in both murder and other violent crimes; the state has a compelling interest to prevent criminal activity against people more vulnerable to crime, such as children and the elderly (physical inability to resist) or protected classes with evidence of hate crimes (the crime is essentially an act of terrorism against others as much as it is a crime against an individual).

For someone who claims to be very concerned about fairness and wrongful punishment, you were awfully eager to punish cross-burning as arson or murder because it was “quite close to” those crimes or may, under different circumstances, have turned into those crimes. Why are you only concerned with due process for some hate crimes, but not others?

But since every other word that includes the term “-phobia” (as well as the root word itself) means “irrational or unreasonable fear of [whatever]”

Wrong. The “-phobia” suffix, in the English language, refers to both fear and hatred. A, who is terrified of cats, is an ailurophobe. B, who is not afraid of cats at all but hates them, is an ailurophobe. “Hate crime” is not exact, but neither is “domestic terrorism”.

So, then, let me ask this from those of you who seem to have some legal knowledge of these things; what kind of evidence is generally necessary to establish such intent?

I’m not sure whether I like the concept or not. As has been pointed out above, it’s well established that the intent of crime has a bearing on the punishment meted out upon conviction. So in the example of rolling a pig’s head down the center aisle of a mosque, what was the intent of the person doing this? I think that no matter what your opinion of “hate crimes” is, it’s fair to say that the person who did this intended to at least insult the people he committed the crime against based on their religion. It thus falls under the definition posted by Sailorman. What I’m trying to decide is whether such an intent should be something whose punishment under the law is a special case that deserves extra punishment.

The “Hate Crime” thing is a little different. I do object to the name. It’s so emotionally loaded as to mask what it’s actually all about. Given the definitions for them shown in this thread, there’s a lot of other emotions that can give intent to the acts covered under them besides hate. But to use the term “hate crime” lumps a very diverse group of feelings and activities under a term or phrase that doesn’t actually apply to many of the people involved.

To use the example that Charles put forward, “homophobia” is being used to cover any act or expression of dissaproval of homosexual activity. But since every other word that includes the term “-phobia” (as well as the root word itself) means “irrational or unreasonable fear of [whatever]”, “homophobia” paints every dissaproval of homosexual behavior as being a) motivated by fear, and b) unreasonable or irrational, which is clearly not true. But proponents of the use of the term “homophobia” have promoted the use of the term to mask that.

“hate” may not properly describe the perpetrator’s state of mind.

This is pretty incredibly weak tea as an argument (on par with the “I’m not a homophobe because I don’t fear gay people” argument). You are now merely arguing with the name of the laws, not with hte concept of the laws. As Amp and Amanda Marcotte suggest, perhaps you’d prefer “domestic terrorism”? Remember that while hate criume laws are called hate crime laws, they are not concerned with whether the fellow had hate in his heart, but rather with the intent of his actions, and specifically whether his actions were intended to intimidate on the basis of a protected category, or were motivated by bigotry or bias.

to quote Sailorman quoting the laws:

“Whoever commits an assault or a battery upon a person or damages the real or personal property of a person with the intent to intimidate such person because of such person’s race, color, religion, national origin, sexual orientation, or disability…”

“”Hate crime”, any criminal act coupled with overt actions motivated by bigotry and bias including, but not limited to…”

So your problem is not with the idea of hate-crime legislation existing, but the level of punishment and its relation to the severity of the crime?

nik, you are taking “motive is not always relevant” and turning it into “motive is never relevant”, which is false. I’ve already given the example of assault. If I intend to say to you “Shut up or I’ll stab you,” am I guilty of assault? Only if what I meant to do was to cause you to be afraid that I would really stab you. If my motive was to recite a line in a play we both appeared in, that would not be a crime. We don’t call assault a thoughtcrime.

Hate crimes are more like assault and less like theft; they are meant to cause fear and to intimidate, not just the victim, but the group to which the perpretrator believes that perosn belongs to.

Actually, I wrote up post #40 to show that I can see that there are crimes where the motivation is uncontestably based on disdain or dissaproval or anger or hate or whatever towards, in this case, religion, and by extension towards sexual orientation, race, national origin, etc.

So I don’t contest that such things exist. I now wonder, however, whether rolling a pig’s head down a mosque’s aisle is something that should be punished by a year in jail. I think that’s a bit much; after all, no one was killed or injured. Now, if such an act went unpunished, it would be chilling to the Moslems in the area, but that doesn’t need special legislation to take care of it. This guy could be arrested on a few other charges, including trespassing, disorderly conduct, etc.

I’m more of the restitution school; sentence this guy to either cleaning the rug to the mosque’s specifications himself, or paying to replace it, plus some other public service and perhaps passing a course on the principles of Islam. A newspaper picture of this guy on his hands and knees scrubbing a carpet while the mosque’s imam looks on publicly humiliates him and motivates him not to do it again. Meanwhile, he’s still paying taxes instead of consuming my tax money in jail costs. The public humiliation gets lots more publicity than the alternatives, would motivate others as well, and would publicize that the law stands on the side of Moslems in the area, which IIRC is the idea of “hate crime” legislation.

We consider intent in crimes ALL THE TIME. Deliberately shooting another human being is not the same as accidentally shooting another human being. If I pick up your purse and walk away because I mistakenly think it’s mine, that’s not theft; if I pick up your purse simply because I like your purse better than mine, it is. Nobody complains that we punish murderers or purse-snatchers for “thought crimes”.

There’s a particular trick being used to sustain this argument. You see this when David talks about “intent and motive” in his counter post and blurs them both together. But there are two schools of thought on the matter. One says that that’s the right approach - they are indistinguishable and mean basically the same thing - and if you believe that there is no problem. The other says there is a difference between the two and says that laws should not consider motive, if you believe that then ‘hate crimes’ become more problematic.

Whether look at what someone did. They also look at whether someone has a guilty mind (i.e. intent) all the time. But *why* they wanted to do it (i.e. their motive) is normally irrelevant.

If you take someone’s purse intending to deprive them of it, that’s theft. If you pick it up thinking it’s yours, that isn’t. That’s where intent comes in. But motive just doesn’t normally get a look in. Whether you steal a purse to feed your kids, or your drug habit, or for the thrill, or to redistribute the money to the poor, or because you disagree with the fashion statement it makes, or want to make a statement against Capitalism, or out of sheer venality, it just doesn’t matter when it comes to deciding whether you have committed a crime. All that matters is whether (a) what you did is illegal and (b) whether you intended to do it.

So you can still maintain that whether someone intended to do something is important, but that why they intended to do it is none of the law’s business.

Because of free speech laws, the people who choose to encourage bigotry and turn us against each other through legal means have a right to do so. It’s sad but true, and I continue to believe in free speech even when it’s used for evil.

Those who choose to turn us against each other through illegal means, though . . . their offense is greater than those acting because of greed or anger, because these people are trying to deliberately sabotage America. They’re trying to turn black against white, man against woman, straight against gay, American against American. Forget hate crime legislation, let’s prosecute these bastards for treason.

A murder comitted in order to specifically terrorize the queer community has a greater negative impact than a murder comitted for money or passion, because it deliberately seeks to divide and frighten.

If a crime has extra negative impact, I’ve got no problem with it carrying extra punishment.

I do understand why some folks are uncomfortable with the idea of ‘thought crimes,’ and that’s why I’m not talking about what emotions an offender had at the time of the crime, but rather what effect it has on the world. Or, to put it another way, if you hate queers and rob and murder a gay man never knowing he was gay, but rather as a crime of opportunity, then yeah, I wouldn’t apply the statute. On the other hand, if you do it specifically as a gay bashing, then yeah, you just earned some extra punishment.

Beyond that, hate crimes are, in truth, two seperate offenses arising from a single act. There is the criminal conduct, but a hate crime is also, at its essence, a civil rights violation. I believe the law allows a person to be tried both for the conduct and the civil rights violation (though, I am not at all certain of this), so why not simply account for the civil rights violation when prosecuting the conduct. Its just an efficent means of carrying out justice. Indeed, I’d say this benefits defendants who might not be able to finance two seperate trials.

How about if I rant on you for being an ignoramus about how the law works?

I just really have no patience for people who gleefully admit they’re ignorant, mouth off in an ignorant fashion, then insist that everyone else play by debate rules they themselves have no intent of following. That’s trolling, not discussion.

*plonk*