The new adage, tailored for our age, goes:
Sticks and stones may break my bones, and names, insults, derogatory remarks, denigrations, defamations, "hate" crimes, "bias intimidations," rude or indecent gestures, mockery, satire in textual print or imagery, disrespect, lifestyle harassment, bullying, and other verbal, visual, and non-violent actions, attempts at passive victimization and gross insensitivities that tend or are calculated to hurt, depress, humiliate, or shame me, and otherwise offend my self-esteem and rightful dignity, compromise my privacy, and diminish my standing in the eyes of my fellow creatures – may be grounds for civil and/or criminal suits.
Sticks and stones may be used in the commission of an actual felony, as well as guns, knives, one's fists, or any other physical object. But an evolving complement of new chargeable felonies, often appended to legitimate ones, is growing, and if not challenged, will reach a "critical mass" in law that will stifle all realms of speech. These new "felonies" are "hate crimes." A new subset of them is "bias intimidation."
In "The Peril of 'Hate Crimes'" I noted:
…[T]he why of a crime is increasingly treated as though it were a weapon, such as a gun, a knife, or a club. In standard criminal cases, however, it has never been the instrument of crime that was on trial, but the defendant and his actions.
Proponents of hate crime have attempted to find a compromise between objectivity in criminal law and the notion that a felon should also be punished for what caused him to commit the crime. But no such compromise is feasible if objective law is to be preserved and justice served. The irrational element – that is, making thought, however irrational or ugly it may be, a crime – has suborned the rational. No compromise between good and evil is lasting or practical. Evil will always come out the victor.
It did not take long for the corrupting notion of hate crimes to degenerate into thought crime. This is what happens when reason is declared irrelevant or is abandoned or diluted by the irrational.
It used to be that a criminal was sentenced for his crime, and if the crime was committed from some form of prejudice, the court's and jury's afterthought was usually: And, by the way, your motives are contemptible and despicable.
Appended now to a guilty verdict for the murder of an individual because of his race, gender "orientation," religion, or political affiliation, is another verdict: You had no right to think that way, so we are adding five years to your sentence and adding X amount to your monetary penalty.
"Bias intimidation" played a role in the conviction and sentencing of Dharun Ravi, the Rutgers freshman whose webcam spying allegedly drove roommate Tyler Clementi to commit suicide. The New York Times reported in March;
The jury in the trial of a former Rutgers University student accused of invading his roommate’s privacy by using a webcam to watch him in an intimate encounter began deliberations on Wednesday and asked the judge to define two crucial terms.
Jurors asked Judge Glenn Berman of Superior Court in Middlesex County to restate the definition of “intimidate,” as well as of the word “purpose,” as it related to the bias intimidation count.
The judge ruled that the defendant, Dharun Ravi, could be found guilty of bias intimidation only if he was also found guilty of the first charge, invasion of privacy. And he told the jury that the roommate, Tyler Clementi, would have been the victim of bias intimidation if he had been made to feel fear. [Italics mine.]
“A person is guilty of the crime of bias intimidation,” Judge Berman said, “if he commits an offense with the purpose to intimidate an individual because of sexual orientation.”
Mr. Ravi is charged with 15 counts, including bias intimidation, invasion of privacy and tampering with evidence. Prosecutors say he encouraged friends to view a feed from his webcam that showed Mr. Clementi with another man. Mr. Clementi committed suicide shortly afterward, in September 2010.
And the denouement of this drama on May 21st, as reported by the Times:
The jury found that he did not intend to intimidate Mr. Clementi the first night he turned on the webcam to watch. But the jury concluded that Mr. Clementi had reason to believe he had been targeted because he was gay, and in one charge, the jury found that Mr. Ravi had known Mr. Clementi would feel intimidated by his actions.
On May 21, Mr. Ravi was sentenced to a 30-day jail term. He had faced up to 10 years in prison. He was also was sentenced to three years’ probation, 300 hours of community service, counseling about cyberbullying and alternate lifestyles and a $10,000 probation fee.
USA Today provided a few more details of the sentencing by Superior Court Judge Glenn Berman:
While Ravi wasn't charged in connection with his death, he was convicted of 15 counts, including two second-degree bias intimidation charges that carry a presumption of jail time. Ravi also was convicted of a second-degree hindering charge.
Judge Glenn Berman ordered Ravi, 20, to report to the Middlesex County Adult Correction Center on May 31.
Ravi must pay a fine and costs of more than $11,000 -- $10,000 of which will go to an agency that assists victims of bias crimes. Berman also ordered three years probation and 300 hours of community service.[Italics mine.]
USA Today included an important update, a point of Ravi's defense which the jury apparently ignored:
Ravi's defense team is making the case for an acquittal of the charges, saying Ravi did not know the effect his behavior would have on Clementi.
The unstated premise behind the whole trial was that Ravi had driven Clementi to commit suicide. And it is doubtful, highly doubtful, that Ravi's intentions were more than just exposing Clementi to adolescent ridicule. As a new college roommate, he barely knew Clementi. He could not know how "sensitive" he might have been to exposure, mockery, or to an invasion of his privacy. Ravi, then 18 years old, could not have known, even had he been 50 years old with a lifetime of experience behind him, what Clementi might have done as a result of his webcam spying which he shared with others.
Notice that the term bias intimidation is synonymous with bias crime. Whatever it is called, in New Jersey, the "crime" garners a presumption of jail time.
The larger picture is the introduction of the notion, not only of "hate crime," but of an appended but invalid felony charge that may accompany the charge of a validly defined felony. The question is – and it may be a moot question by this time – is how soon mere bias intimidation will be treated as synonymous with hate crime? How soon will individuals be taken to court and charged with it alone, without the excuse of having committed an actual felony?
Salman Rushdie, who surely knows something about the consequences of "defaming" a religion and its central icon, as well as having "insulted" or "offended" the feelings of Muslims, wrote in The New Yorker:
The creative act requires not only freedom but also this assumption of freedom. If the creative artist worries if he will still be free tomorrow, then he will not be free today. If he is afraid of the consequences of his choice of subject or of his manner of treatment of it, then his choices will not be determined by his talent, but by fear. If we are not confident of our freedom, then we are not free.
Dharun Ravi is not a writer, or an artist. But if a writer or artist experiences the fear of what might happen if he allowed his creativity full rein, then he will not create anything but what has been approved by the million censors of protected classes, who could just as easily file suit against him and see him sentenced to a new Gulag, or just financially ruined. Fear of censorship shuts down the mind and sends it on the main traveled roads of the average, the unexceptional, the bland, the expected. Fear of censorship smothers thought, and makes freedom of expression of all but the mediocre impossible and a cruel taunt.
Let's examine the court's, the jury's, and the law's a priori assumptions, assumptions on which they acted. An a priori assumption is one that is knowable without further need to prove or experience. It just "is." . Clementi was gay. Ergo, Ravi's actions were anti-gay, or biased against gays, or in this instance, against Tyler Clementi because he was gay.
First, note that gays are now becoming a new "protected class," as surely as the Council on American-Islamic Relations, the ICNA, the Muslim Public Affairs Council, and other Hamas-linked "civil rights" groups are working to make Muslims and Islam a protected class, and with some success, especially in our judiciary, and most importantly in regards to what one may say about Muslims and Islam. .
As there is a legitimate distinction between premeditated and aggravated assault – premeditated meaning that a defendant meant to assault the victim, and his motive not being on trial, and aggravated meaning that the victim expected or apprehended physical assault or battery – will our courts now accept as a legitimate charge premeditated bias intimidation? Will a defendant be arraigned and indicted for aggravated bias intimidation?
If a legitimately defined felony can be deemed an action taken with malice aforethought, will writing satirically (or even seriously) about Islam, or gays, or badly dressed people, or obese people, or even about the disabled, be some day treated as malicious and biased intimidation, because the feelings of the subjects were hurt, or because the words instilled unprovable but asserted fear in them?
The emotional states of a felon and his victim are essentially immaterial when judging a crime. The contents of their thoughts are likewise not proper subjects for criminal justice. I could sit here and plot how to rob my bank, especially because I didn’t like the way a teller treated me the other day, but I could not be charged with any crime unless I acted on my thoughts (or my piqued sense of hurt and mistreatment). It is the action that would count, not my motive. Dr. Laina Farhat-Holzman, in her article "Is There a Legal Problem with “Hate Crimes?” emphasizes this point:
The definition of "hate crime" is one of those overkill legislative initiatives with unforeseen consequences. It is noble to recognize that some people commit crimes out of hate, but a murder is a murder, and this should be enough.
How can we possibly know a criminal's inner thoughts (his hatred for his victim); furthermore, even if we can know this for certain, what difference does it make to the victim? The hatred of the murderer should only reflect upon the ultimate sentencing: premeditated and aggravated murder.
While a defendant's emotional or even considered "bias" or "hate" may be demonstrated and proven, it should have nothing to do with the criminal charge at hand. It is the criminal action that should be the subject, and the defendant punished for having taken the action. Murder is murder. Assault is assault. Robbery is robbery. The reason why a person commits a crime, or rather his motive, should not be "punishable" and within the aegis of criminal law. The law can decree that men stop thinking, or emoting, or forming opinions, but cannot enforce the decree. It is only fear of government and/or mob reprisals that may cause their minds to sputter to a halt, and die.
Little horrors, such as Judge Glenn Berman putting Dharun Ravi on probation for his "bias crime," have a way of trickling up to greater realms of human action because they remain unchallenged. There are many forces at work in this country to obviate the substance and meaning of the First Amendment. These range from the outright thuggery of an OWS-linked assault on restaurant patrons, to the concerted campaign by Islamic supremacists to outlaw criticism of Islam, to a confused judiciary that is losing sight of individual rights and replacing them with collective rights.
Salman Rushdie has to date escaped the sticks and stones of the Iranian fatwa on his life, but is certainly right about the miasma of fear and political correctness that stifles and smothers freedom of expression.
Little horrors like "bias intimidation" can and will contribute to a greater, incremental, and totalitarian horror.