Hate crimes initially were violations of individual rights motivated by the perpetrators' hatred of a victim's race, gender, religion, or political affiliation. Hatred is an emotion that can be traced to two fundamental evaluations: fear, and malice. One can justifiably hate what one fears, if what one fears jeopardizes a rational value or one's life. Or, one can hate what one fears because it threatens an irrational value, such as blind faith or one's purported racial or cultural superiority. Malice is simply a raw, unreasoning hatred of a good for being the good.
But the motivating, emotional element of a demonstrable or provable violation of an individual's right (murder, rape, physical assault) has been factored into the severity of a defendant's crime and in consequent punishment after his conviction and trial.
In short, the 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 have no right to think that way, so we are adding five years to your sentence and adding X amount to your monetary penalty.
A salutary instance of the corruption of justice is the Rutgers University "hate crime" case. The New York Times, in September 2010, reported:
It started with a Twitter message on Sept. 19: “Roommate asked for the room till midnight. I went into molly’s room and turned on my webcam. I saw him making out with a dude. Yay.”
That night, the authorities say, the Rutgers University student who sent the message used a camera in his dormitory room to stream the roommate’s intimate encounter live on the Internet.
And three days later, the roommate who had been surreptitiously broadcast — Tyler Clementi, an 18-year-old freshman and an accomplished violinist — jumped from the George Washington Bridge into the Hudson River in an apparent suicide….
The Middlesex County prosecutor’s office said Mr. Clementi’s roommate, Dharun Ravi, 18, of Plainsboro, N.J., and another classmate, Molly Wei, 18, of Princeton Junction, N.J., had each been charged with two counts of invasion of privacy for using “the camera to view and transmit a live image” of Mr. Clementi. The most serious charges carry a maximum sentence of five years.
In many states, invasion of privacy is a misdemeanor, not a capital crime. Dharun Ravi was originally charged with invasion of privacy. But the alleged "hate crime" against a gay metastasized into a de facto trial for committing a capital crime, because Clementi committed suicide. Ravi was not charged with Clementi's murder, but it was implied that he was responsible for his suicide.
Fast forward to March, 2012. The presiding judge in the case contributed to the confusion;
The Times reported:
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.
There are several things wrong with this. First, Clementi learned of the webcam prank indirectly by reading Ravi's Twitter posts about him (thirty-eight times). Ravi was not attempting to "intimidate Clementi, or "bully" him. Hi-tech back-fence gossip and slander-mongering about another person are not "intimidation." Ravi invited his friends to watch the webcam, not Clementi. Secondly, no one knows why Clementi committed suicide. He left a brief, cryptic suicide note which shed no light on his motive. ABC News reported:
Former Rutgers student Dharun Ravi was told by police that his text message apology for spying on roommate Tyler Clementi was written within minutes of Clementi's suicide note.
In a taped interview with investigators the day after Clementi's suicide Ravi is seen struggling to understand as he is told that his apology to Clementi was received just minutes before Clementi posted a Facebook message saying, "Jumping off the gw bridge sorry."
"Did he get that text before?" Ravi asked investigators.
"That's the way it looks," an officer responded.
"So he got mine, and then sent his?" Ravi asked, to which the investigators responded yes.
The police, however, appear to have made a mistake. Time stamps on the two messages show that Clementi posted his suicide note at 8:42 p.m. on Sept. 22, 2010. Ravi's apology to Clementi was sent at 8:46 p.m. It's not clear if Clementi ever saw the apology.
But, because no one had or could have had access to the contents of Ravi and Clementi's minds, the jurors, per Judge Berman's instructions and "clarification," were left to resort to second-guessing. To wit:
What the jury had to decide…was what Mr. Ravi and Mr. Clementi were thinking.
Had Mr. Ravi set up the webcam because he had a pretty good idea that he would see Mr. Clementi in an intimate moment? Had he targeted Mr. Clementi and the man he was with because they were gay? And had Mr. Clementi been in fear?
Without Mr. Clementi to speak for himself, that last question was perhaps the most difficult to determine, and jurors struggled with it.
“That was the hardest because you really can’t get into someone’s head,” said one, Bruno Ferreira, as he left the court. The jury deliberated longest — for well more than an hour, he said — on the bias intimidation charge. [Italics mine]
Mr. Ferreira said he ultimately voted guilty on the bias intimidation charge because Mr. Ravi had sent multiple Twitter messages about Mr. Clementi.
So, Ferreira overrode his initial doubts about getting into someone's head by substituting a number and translating it into a motive, or "bias intimidation." No one knows why Ravi engaged in his admittedly malicious prank. No one knows if Clementi committed suicide over the webcam incidents or because he was embarrassed or shamed or just in a suicidal mood. Any one of those reasons is more credible than is the "intimidation" charge.
But Bruce J. Kaplan, the prosecutor in Middlesex County, applauded the jury for sending a strong message against bias. "They felt the pain of Tyler," he said.
No, they were not. The jurors were projecting what they imagined Clementi's emotional state might have been because they were persuaded by the prosecution that Ravi's webcam actions contributed to Clementi's decision to commit suicide. There were no photos of Clementi's anguished state for them to judge, and so no way to even deduce why he was feeling "pain."
I am not taking Ravi's side here. I am taking a stand against the whole notion of hate crimes. If you want to see how a jury properly treats a bigot, watch Twelve Angry Men (start here at 1.18.56).
In criminal law, and even in Perry Mason TV law, determining a motive is merely a means to determine the reason for a criminal action, whether it is murder or larceny or petty theft. It was never criminalized itself. Motives exist in men's minds and can not be taken out and paraded as evidence. Even if they could be, in the past they would not have counted. It was the criminal action that was actionable in law, not why a crime was committed. That is changing, for the worse. Motives can not hurt anyone; only an action spurred by a motive, just as guns don't (volitionally) kill people; it is people using guns that kill people. The same logic applies to butter knives, rubber bands, spit balls, or rocks. Guns, butter knives, rubber bands, spit balls and rocks are not imbued with magical powers that force people to commit crimes with them. But gun control advocates wish to pretend that guns have magical powers to turn people into criminals.
Emotions and motives alone are not physical objects that can harm anyone.
Emotions are evaluations, and evaluations are products of thought. To condemn and punish an emotion is to criminalize thought. It's as simple as that. Crime enters the picture only when one acts on the emotion. The action is demonstrable.
The guiltiest party in this affair is Judge Glenn Berman, who aided and abetted in the sanctioning of "hate crimes" and "bias intimidation," both of which are anti-reason and anti-rights. A judge ought to know the difference between an actual, proven crime in which action is the evidence of a crime, and the contents of an individual's mind. The contents of the mind are no government's or court's business.
A motive or an emotion may help authorities to find clues to a crime or even identify a felon. But it is not a chargeable offense; it is the action stemming from it.
The why of a crime is not the crime. It is the action that is the crime. One can deduce, or collect evidence that a person wanted to embezzle his employer's bank accounts, that was his purpose; that is the "why." The crime is the embezzlement, the action, not the motive. The why of a crime may deserve condemnation, but it is not the proper object of criminal justice.
But, what has spurred te spread of "hate crime" and "hate speech"? In a word: tribalism.
Hate crimes are a direct result of a nation's population scrambling to join tribes based on race, gender, religion, and political affiliation, and these in turn splinter into sub-tribes. Such tribalism is possible in a nation that has abandoned reason and objective law, and a contest ensues in which the various tribes jockey in politics and fiat power to become the dominant and ruling group at the expense of all others.
Novelist/philosopher Ayn Rand about tribalism:
Tribalism (which is the best name to give to all the group manifestations of the anti-conceptual mentality) is a dominant element in Europe, as a reciprocally reinforcing cause and result of Europe’s long history of caste systems, of national and local (provincial) chauvinism, of rule by brute force and endless, bloody wars. As an example, observe the Balkan nations, which are perennially bent upon exterminating one another over minuscule differences of tradition or language. Tribalism had no place in the United States—until recent decades. It could not take root here, its imported seedlings were withering away and turning to slag in the melting pot whose fire was fed by two inexhaustible sources of energy: individual rights and objective law; these two were the only protection man needed.
As the scope of government power grows, so do the number of "tribes" grow to protect themselves from it or to demand a share of it or simply to clamor for a granting of special privileges and status. Today there innumerable tribes locked in constant warfare in response to government power: smokers vs. non- and anti-smokers, gays vs. heterosexuals, blacks vs. whites and/or Asians, Hispanics vs. whites and/or blacks, cyclists vs. motorists, developers vs. conservationists, Christians vs. atheists, and, most prominent of all, Muslims vs. all non-Muslims, and especially Jews.
The last category is particularly vicious because Islam is a totalitarian ideology naturally comfortable, in Sharia law, with the notions of "hate speech" and "hate crime," because the growing ubiquity of such notions in U.S. secular law helps to insulate Islam from Western norms while its activists follow an agenda of conquest or stealth jihad. And, the New Black Panthers offered a $10,000 bounty for the "capture" of George Zimmerman, which is in addition to race hustlers like Al Sharpton and Jesse Jackson calling Zimmerman's shooting of a black teenager "racist" and fomenting racial strife.
(It is noteworthy that neither the government nor courts nor the MSM is willing to charge black activists with "hate speech" or "hate crimes." Vociferous black activists are now a "protected" tribe able to slander, libel, and promote malice with impunity.)
As "hate speech" focuses on the written or spoken word (or on "forbidden" images of Mohammad), "hate crime" focuses on thought, whether or not it is spoken or written. You can be sure that the Council on American-Islamic Relations and other Islamic front groups will be looking for ways to exploit the Rutgers precedent. And is certain that ambitious censors in government, such as Cass Sunstein, the "Speech Czar," will also be on the alert for opportunities to silence critics of the current administration based on the Rutgers verdict.
The Rutgers verdict against Ravi does not auger well for the state of criminal justice. Together with the vile notion of "hate speech," "hate crime" is another assault on man's mind.
*"Tribalism," in Philosophy: Who Needs It," p. 42.