Is That Legal?

It sounds pretty much like a hate crime, but I've always had trouble with the idea of treating a hate crime differently from the same criminal offense committed for a different reason. It's like saying that there is a better reason to beat up someone than because you hate them.

In Greensboro, we're not sure this is a hate crime, but it's certainly hateful and probably a crime. But the irony is that until very recently, the football (and other sports) teams were called "The Fighting Quakers."

Read more from an alum and now Greensboro Register of Deeds, Jeff Thigpen. It sums up how we feel in this burg but more so, we're proud of Guilford College for handling this in a respectable and true-to-their beliefs manner.

I don't think the college mascot is at all relevant, or should in any way dictate the sort of behavior in which we should engage or expect others to engage.

We would no more expect:

A "Bulldog" (Yale Graduate) to pee on fire hydrants (Though Professor Muller, you went to Yale so correct me if I am wrong about this. And no cheap shots about The Citadel.)
A "Tarheel" (Carolina Graduate) to butt its head against everything (except perhaps a desk)
A "Blue Devil" (Duke Graduate) to possess anybody
A "Jayhawk" (Kansas) to crap on people's windshields
A "Beaver" (Oregon) To chew on trees and build dams (I am from Oregon originally and I NEVER saw anybody do this)
A "Polar Bear" (Bowdoin) to try to catch salmon with its mouth
Or a "Zippy the Kangaroo" (Akron) to carry her (or his) young in a pouch on its stomach. One would have to make a pouch first, and by that time the children will certainly have been taken away by the state.

Than we should expect a Guilford Quaker to actually act like a Quaker.

ELM: Tim, agreed; you made the mistake of taking me seriously. Mostly I just think it's somehow at least a little funny that football players are kicking the crap out of people at a Quaker school.

It sounds pretty much like a hate crime, but I've always had trouble with the idea of treating a hate crime differently from the same criminal offense committed for a different reason. It's like saying that there is a better reason to beat up someone than because you hate them.

This complaint never made any sense to me. The criminal law differentiates between different states of mind all the time and adjusts penalties accordingly. For example [I stabbed that guy just to see how long it would take him to die] vs. [I stabbed that guy in a bar fight, but didn't mean to kill him] vs. [I stabbed that guy because he ran into me in the dark and I thought he wanted to kill me himself].

In every case I stabbed the guy, and he's dead, and the primary difference in how I'll be treated by the court is *why* I did it, and consequently what I was thinking.

Mark,
The "hate" in "hate crime" isn't about what you're feeling, but what you're communicating. These guys didn't just beat up some other guys. They sent a message of hate, not only toward their victims, but toward all Arabs and Muslims in the area. I think it's appropriate to treat "hate crimes" more seriously because they can do so much more damage.

Paperwight, so there is, indeed, a better reason to beat someone up than because you hate him? Maybe they were swinging their arms and the Palestinians accidentally got in their way? On the other hand, maybe it will turn out that the incident was self defense, in which case it still doesn't matter whether they hated the Palestinians.

I rethought my response to Paperwight, and this is what I think now, despite not being a lawyer. The three examples cited are actually different crimes (the third would not be a crime if it were self defense). If we take the same crime (beating up someone, an act that I think couldn't be explained or excused as an accident), then I see no difference in the crime if in one case the motive is hate and in the other it is, for example, jealous rage over a girlfriend. In the first example, is killing someone to see him die different from killing him because you hate his race? I guess my point is that if hate is simply the motive, isn't there already a way to treat that in existing law without defining it specifically as a hate crime?

Perhaps there are societal reasons to define that particular motive specifically, as there might be societal reasons for affirmative action.

To Beth:

Don't you think that crimes should be punished for what they ARE. (Objective) Not what they MIGHT BE? (Subjective) Or worse still, what they might REPRESENT to somebody? (Subjective) Or even worse still, what they might COMMUNICATE to somebody? (Subjective)

Not only that, but the following are also subjective for a special hybrid of crime + bad communication offenses:

-Victims
-Who can commit, and who cannot; can Christian vs. Muslim? Can Catholic vs. Protestant? Can Methodist vs. Lutheran? Can Baptist vs. Southern Baptist? Can White vs. Black? Can mixed against mixed? Can homosexual vs. hetero? Can transgender vs. hermaphrodite?
-Are we gonna use protected classes?
-Mitigating and aggravating circumstances
-Effects of intoxication (present here)
-Objectives of punishment and extra implications (if we want to repair behavior, not punish, then how do we do that, and how to we measure that? What is the objective standard considering given all the variables? What is the reasonable.....thing?)

The only way you can get to where you want to go-to get the power needed to enforce, rather impose, mushy stuff like this-is by going down a road that you will surely come to regret.

I would like to follow up on my earlier post with an anology about "mush" laws.

Something mushy, like mashed potatoes, won't stand up on its own. So you will have to build some sort of a frame, or otherwise hold it up yourself. But it won't stick to even a frame for long, so you will have to constantly tend to it, to put it back together, or to add more potatoes to it. Meanwhile, there will be a bunch of little ants trying to get to the potatoes, or around them, or through them. At first you will gently brush them aside, not wanting to hurt them and not having any reason to. But as more and more ants try to corrupt your potato house, you will start to get frustrated, and the only thing you will be able to do is crush some of the ants. Perhaps if you only crush a few ants that will do the trick, especially if you let the others know that ants who try to corrupt the potato house get crushed. But that will not do the trick, and more and more ants will continue, and you will have to kill an untold number of them, just to protect your precious little potato house.

Now, ants can't think and can't wield a knife or a gun, and don't feel envy or revenge or hatred. But people do, and if somebody tries to do to people what can be done to the ants in an analogous situation, they will meet the predictable end.

Now, if you would have built your house out of something that can stand up on its own weight, that doesn't need constant attention and revision, you wouldn't have this problem. But mush will always come tumbling down.

Mark,
Perhaps there are societal reasons to define that particular motive specifically, as there might be societal reasons for affirmative action.

First, let's clarify that this is not a hate crime because the victims were minorities. If it had been the other way around -- if the Palestinians had brutally beaten the football players while screaming, "Dirty Christ-lovers," "War criminals," "Idolaters" -- it still would be a hate crime.

Now, let's try another analogy.

1. I want to rob a convenience store, so I go in and shoot the clerk so he won't interfere. On the way out I spray-paint "Loser!" on the window because that's the sort of sick, twisted person I am.

2. I learn a convenience store clerk is going to testify against a member of my crime family, so I go to the store and shoot him, then spray-paint "Squealer" on the window to intimidate all potential witnesses against us.

3. I'm an al Qaeda sympathizer. In an act of micro-terrorism, I go into a convenience store, shoot the clerk and spray-paint "Death to America" on the window, in order to strike a blow for the cause.

Not only is the clerk (and the window) equally harmed in all three cases, the attacks were equally deliberate and equally unjustified from a legal standpoint. But I think it's clear that the second attack is more serious because of the intimidation factor and the likely harm to criminal law enforcement. The third attack is more serious because it degrades relations between Muslims and the larger community and perhaps engenders more violence, either by inspiring other al Qaeda sympathizers to commit similar acts or by inciting non-Muslims to take revenge on any Arab-looking person they see.

I'm not a lawyer either, but I think the last two crimes should certainly be taken more seriously.

Tim,
If it were just a matter of guesswork, I'd agree with you. But in this case, I don't think there's any 'might' about it. If I sent you a note saying, "Give me $50,000 or I'll kill your family," I don't think you'd say, "Well, she seems to have sent me a particular message and I feel intimidated by it, but that's all subjective so I have no business going to the police." For that matter, after 9-11 did you say, "Well it's a shame about the people who died, but all this stuff about 'an attack on America' and 'a terrorist threat' is pure mush"?

Tim,
I'd also like to refer you back to paperwight's comment. The law already takes "mushy" things like state of mind into account. Or do you think that's wrong as well?

Part of the outrage on campus right now is how this could happen here, on a Quaker campus.

It can happen here. It can happen anywhere.

What makes us different is how we respond to it.

Is the nickname of that football team "The Fighting Quakers?"

When the law uses mush--mens rea--in the criminal context, it is usually, but not always, to make it softer. Instead of everything being strict liability, that is, you are guilty without regard to your state of mind, without regard to mistake of law or fact, like statutory rape; we introduce the mush and speculate about if you meant to do it or not, and we are even so kind as to think about whether you were provoked, drunk, whatever, like second degree murder.

Sometimes we look at the mush--the state of mind--to see whether somebody deserves a stiffer penalty than the regular one. Often this involves doing something you aren't supposed to do anyway, but doing it to a kid.

The hate crime is mushy to be sure, but there are other things to consider. What you are talking about is taking something that you aren't supposed to do, commiting battery, whatever, and making the penalty worse because it includes something you are allowed to do, speaking, expressing ideas. (Even bad ones) You might be going so far as to be talking about banning speech alone, which is even more dangerous. Now I don't know how far governments can actually get away with doing this, but my point is that one should be punished for the crime, not for the speech. The crime can be easily defined, but the details of the extra penalties for "hate" or "damaging" expression cannot. And then, who is going to define it?

As to one of your examples, terrorists are getting what they deserve based on the attack alone, not because it also, incidentally, signifies a hatred of the US. Likewise the other examples are punishable already. There is no mush, all those things have elements which are pretty clear, I think.

I doubt you would go with a ban on burning the American flag, would you? It is "damaging" though isn't it? Doesn't it send a "hateful" message? Well you wouldn't ban it because the underlying action--burning cloth--is not in itself illegal, even if the speech is damaging and hateful. If burning cloth in public were illegal, say because of the fire danger, would you be willing to increase the penalty if it happens to be an American flag--it is hurtful to me and my sensibilities deserve to be vindicated just as much as anybody else, right?

So I ask, where do you draw the line? And who gets to draw it? And why is it drawn like you draw it? And how do you deal with exceptions?

What you are talking about is taking something that you aren't supposed to do, commiting battery, whatever, and making the penalty worse because it includes something you are allowed to do, speaking, expressing ideas.

What's wrong with that? If I'm holding my licensed gun when I tell someone, "Give me all your money," it changes the crime from robbery to armed robbery. The penalty is now worse because the crime includes something I'm allowed to do, carry a gun. Hate speech doesn't suddenly become illegal in the presence of a criminal act but, like that gun, it can make the crime more serious.

As to one of your examples, terrorists are getting what they deserve based on the attack alone, not because it also, incidentally, signifies a hatred of the US.

So you don't see any reason for crimes to be taken any more seriously just because they involve terrorism? Wow, that's pretty radical.

If burning cloth in public were illegal, say because of the fire danger, would you be willing to increase the penalty if it happens to be an American flag...?

Not unless flags are extremely flammable or something. As I said before, speech itself doesn't become illegal in the presence of a crime. Higher penalties are appropriate only when the speech makes the underlying crime worse, so unless the 'flagness' of that cloth makes the fire worse, it's irrelevant. If you want to walk around naked with swastikas painted all over your body, go right ahead. You may be arrested for indecent exposure, but the hate symbols won't add one iota to the seriousness of your crime.

So I ask, where do you draw the line?

Since this 'line' appears to exist nowhere but in your own head, I'll leave the details up to you.

Those examples could be committed without speaking and without communicating anything, except perhaps the "apprehension" that goes to satisfy the assault elements, when present. But even then, you have to know who the victim is.

If you want, of course you don't have to, I think it would be better to explain how you would write such a hate crime.

Just take a regular crime--probably something not as serious as murder or terrorism, and add the "hate crime" part to it. Say this is assault, and this is the hate crime version of assault.

Like

-element
-element
-element

= crime

+

-element that makes it a hate crime