Crime is Crime is Crime. Not.

Q: Congress is expected to expand federal hate crimes laws to add "sexual orientation" to a list that already includes "race, color, religion or national origin." Is this necessary? Should there be special laws against crimes motivated by intolerance, bigotry and hatred? Isn't a crime a crime?

Crime is crime is crime. But it isn't.

My first response is always to argue against the very idea of a hate crime. My argument basically goes like this: intolerance, bigotry, and hatred are notoriously difficult to define. While society does maintain a rough consensus on what constitute particularly objectionable forms of intolerance, that consensus can only develop in a context in which freedom of expression is encouraged and respected. But the category of hate crime exists precisely to sanction a particular way of thinking or believing. Assault, rape, or murder become more serious, more damaging, when motivated by racism, or by other forms bigotry based upon national, ethnic, or sexual identity. But, to recall words spoken by British Prime Minister Margaret Thatcher, crime is crime is crime.

The argument could be extended by observing that If one wishes to affirm the equal dignity of human beings, and the moral seriousness of crime in and of itself, there is no need for "hate crime" as a special category. Indeed, the concept of "hate crime" could come to encompass "hate speech" and thus chill necessary public discourse about controversial issues. Speech is speech is speech; crime is crime is crime.

Margaret Thatcher's line came to mind because I am presently developing a course on religion and violence. "Crime is crime is crime" came as a pithy retort to the argument that members of the IRA were political prisoners. Implicit in that debate was the assumption that a society's understanding of "crime" should be insulated against ideological content and manipulation.

Regardless of where one stands on the issue of the criminality of the IRA, it is clear that their actions were perceived differently by differing social groups and constituencies. Extending the implications of that observation more broadly, it can also be argued that many Western legal systems often cloak contested, or contestable, value laden assumptions under a veil of neutrality or objectivity. Crime is crime is crime when someone has the power to put someone else in jail.

With regard to hate crimes legislation, the fundamental point is this: the issue should not be construed as a choice between ideology and objectivity. The implicit ideological character of American law is indisputable. Indeed, it is a particular ideology of individualism embraced by the Constitution that forms the basis of the most substantive critiques of hate crime legislation. In any case, the intent of the accused criminal is often a crucial consideration at trial and sentencing--so there is no prima facie reason to exclude bigotry or intolerance in weighing the nature of a crime and its impact.

It is most helpful to see hate crimes legislation as a reflection of changing social boundaries and mores. Even those who, like myself, believe that morality has an objective character must admit that that legal systems only distantly reflect that reality. For this reason, the debate should be joined over a more substantive consideration of which ethical or ideological system is most appropriate for the society we wish to create and protect. While I believe in the societal value of protecting hate speech, I also believe that there is an important social and ethical objective achieved by specially prosecuting crimes of violence motivated by intolerance for the differences--racial, religious, ethnic, and sexual--that give substance to our humanity.

By Mathew N. Schmalz  |  October 19, 2009; 7:36 PM ET
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