“Hate crime” seems like bad law
Posted by Dave Bath on 2009-06-02
With the understandable agitation of Indian students over violence apparently motivated by racism, Victorian Attorney-General Rob Hulls has made noises about being tough on "Hate Crimes".
Personally, while considering the internals in the mind of an accused very relevant to sentencing (or deciding things like mens rea), I think "hate" has no place being part of a charge.
For one thing, if "hate crimes" attract a stiffer penalty than plain aggravated burglary, this will motivate a violent racist criminal to choose which member of an ethnic/whatever group and steal as much as they can, to make it look like a "normal" crime rather than a hate crime.
If you were a target of a hate crime, are you better off being bashed while left with your iPod, or bashed and your iPod stolen?
For another, if the crime is motivated by hatred for a class (ethnicity or belief), then we get into a number of logical problems:
- If the criminal was going to bash and rob someone anyway, and merely had a preference for making certain classes of people the victim, does this constitute a "hate crime"?
- If racists bash somebody because of ethnicity, and it is called a hate crime, then is bashing a racist because of his/her racism a hate crime because it is motivated by the belief system of the racist victim? If not, we get into a "belief-system apartheid".
- In my view, racism is irrational, if not frankly insane. So… should racist "hate criminals" be locked up in a padded cell rather than a hard-walled one?
To me, any worrying about whether or not somebody should be charged with a "hate crime" is a costly distraction from the main game: whether or not an act that harmed a human, society or humanity, and what proof there is that the accused actually committed that act.
Motives, including racism, are relevant to sentencing, if only because they can indicate the probability of recidivism and a need for longer incarceration for protection of innocents. Thus if a person causes the death of another, but to relieve the suffering of a loved one, they should attract a lighter sentence.
I must also wonder whether any Australian government would react so quickly to bashings of a particular ethnic group if that group did not:
- form a powerful political lobby (you know who I am talking about)
- create the largest export earner for the state
This cynic thinks that given the racism inculcated by dog-whistles over the years, the economic argument is the one motivating politicians the most… having taken issue with people making racist comments about Indian students, and noting that the economic argument was the only thing that made them pull their heads back in.