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PaperclipPerfector  1yr ago (text post)   30106 thread views

Culture War Roundup for the week of August 21, 2023

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Spray painting a swastika on the side of a building is a hate crime

No, it isn't. It might be evidence that the victim was chosen because of their religion, but simply spraying a swastika is not a hate crime. See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) and Virginia v. Black, 538 U.S. 343 (2003).

It looks like the typical rape is a hate crime in NJ.

The law in NY is the same. Again, courts are not stupid.

Take the Jussie Smollett hoax. Widely described as a hate crime

An odd example, since the fake facts, had they been true, would IIRC have been evidence that he was targeted for his race or sexual orientation.

Note ADL says the crime must be inspired by hate

They are wrong. Did you see my quote from the DC Court of Appeals, describing how most states define hate crimes? Who do you think knows the law better, the ADL or the DC Court of Appeals? Who has an incentive to be inaccurate?

Here's Oberlin College

I don't understand. The link doesn't define hate crime.

So Joe Random Blogger is going to somehow witness a "hate crime", including the watching of a racially charged movie beforehand and then the witnessed discussion to target someone because of their protected category, and be able to rightfully intervene?

The law does not provide a greater right to intervene re hate crimes.

For example, two women were charged with a hate crime for burning a Trump sign

Did you not see the link to the article saying that the charges were dismissed?

While I'm willing to concede for the sake of argument that "statutory hate crime" is carefully defined to avoid constitutional issues, I am talking about "hate crime" in the colloquial sense, as gets reported on in the news etc as demonstrated by my several links.

Briefly:

  • Swastika: agreed, it can be a small piece of evidence but is insufficient on its own
  • Typical rape: agreed, the statutes appear to require evidence (nearly impossible to obtain in most cases) that the victim was selected as a representative of the larger group. Typical rape wouldn't meet this.
  • Jussie: I think shouting "nigger" or "faggot" during the underlying crime is insufficient. I think we're going to need Mississippi Burning style evidence.
  • ADL: Prior agreement that they are not the arbiter of "statutory hate crime", but they very well represent colloquial "hate crime"
  • Oberlin: Like the ADL, they are using "hate crime" in the colloquial sense, not necessarily the statutory sense. It's hard to imagine they are recommending students make a legal determination of a hate crime.
  • Baltimore: It's amazing they were charged at all. I agree the case did not meet the statutory burden, obviously so, yet it's strange that the article was so credulous.

I think these illustrate that the colloquial sense of "hate crime" dominates the "statutory hate crime" in human discourse. I also believe that without the constitutional protections in the US, hate crime statutes in Europe adhere more to the colloquial sense. Note further that the FBI (not necessarily a statutory authority) was quoted in one of the linked pieces:

A hate crime is a traditional offense like murder, arson, or vandalism with an added element of bias.

T H O U G H T C R I M E

Jussie: I think shouting "nigger" or "faggot" during the underlying crime is insufficient. I think we're going to need Mississippi Burning style evidence.

Well, I think it depends on the context. I seem to recall a hypothetical online in which a guy grabbed a woman's purse and, when she resisted, said, "let go, bitch." That does not seem to be evidence that the crime was motivated by gender. OTOH, if someone is minding his own business and some stranger assaults him out of nowhere, and calls him "nigger," that is stronger evidence that his race was a motivating factor.

Oberlin: Like the ADL, they are using "hate crime" in the colloquial sense, not necessarily the statutory sense. It's hard to imagine they are recommending students make a legal determination of a hate crime.

  1. I don't see how you can infer from the link what they meant
  2. It is perfectly reasonable to encourage students to report what they think is a hate crime, and then let the police sort out whether it really is. It is pretty standard operating procedure to encourage people to report if there is any doubt. Eg: "see something, say something."

I also believe that without the constitutional protections in the US, hate crime statutes in Europe adhere more to the colloquial sense.

The International Convention on the Elimination of All Forms of Racial Discrimination actually requires ratifying countries to "declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;" although countries can enter reservations thereto, as the United States has.

Note further that the FBI (not necessarily a statutory authority) was quoted in one of the linked pieces:

A hate crime is a traditional offense like murder, arson, or vandalism with an added element of bias.

T H O U G H T C R I M E

I don't know about the link, but this 2021 FBI statement says:

A hate crime is a traditional offense like murder, arson, or vandalism with an added element of bias. The FBI defines a hate crime as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.”

So, again, an obvious example is the assault in the Wisconsin v. Mitchell case. I don't know why that is "thought crime." It is not the thought that is being penalized, but the action and motive. Most people, I think, consider a crime motivated by racial hatred to be more morally culpable than a crime motivated by most other reasons. And it is not unusual to add punishment for particularly morally egregious motives. See, eg, the list of special circumstances that, in CA, render a murderer eligible for the death penalty: Murder carried out for financial gain; murder of a govt official in retaliation for the performance of his duties, murder for the purpose of silencing a witness; murder to further the interests of a street gang.

(2) It is perfectly reasonable to encourage students to report what they think is a hate crime, and then let the police sort out whether it really is. It is pretty standard operating procedure to encourage people to report if there is any doubt. Eg: "see something, say something."

If the intervention is merely "say something" then this is entirely sensible. I suspect the intervention recommended requires more culpability in order to defend.

In practice "hate crimes" in the US simply work around the constitutional restrictions. You make a huge hate crime enhancement to a minor crime that's rarely prosecuted, and bam, constitutional viewpoint discrimination. Write "black lives matter" on the sidewalk in chalk, no problem. Draw a swastika instead, well that's petty vandalism plus a hate crime enhancement which makes it a felony, go directly to jail and the courts don't care.

Um, sure, maybe, but care to substantiate?

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