What is wrong with Hate Crimes? Four contrast cases

Killing Seneca – not a hate crime?

What is wrong with hate crime? Are they worse than parallel crimes? If so, why? This is the central question, and it carries into all areas of hate crime scholarship. If we can answer this question, we would have the means to determine which crimes to include under the term, and what groups of victims and groups of perpetrators are relevant.

The distinguishing mark of hate crimes is in the motivation – hate crimes are motivated by bias, hostility, animus, prejudice, hate of group. This has impact on victim selection – usually, but not always, a member of the hated group. A hate crime may also hit someone only perceived to be a member of the hated group or – and this has often been neglected – someone important to that group. Hatred against homosexuals, for instance, may target some heterosexual gay-icon. It also has important for the type of crime and the intention behind the crime – usually the intention is to hurt the community, and thus selecting means that express this hatred as loudly as possible. Again, there might be cases where the hater only need to ”blow off steam” and thus may select a victim but make it look like an accident, or a normal robbery. In such a case, the motive would influence victim selection, but the intention is not to cause greater harm to the group. It is debatable whether such a crime should be treated as worse than the crime it is made to look like.

The main two theories about the wrongness of hate crime is

1) Hate/prejudice is wrong. The motive makes the perpetrator more blameworthy

2) Hate Crimes hurt more

Both allow for qualifications – is hate/prejudice always wrong? There is debate over whether ”hate” is the right word (it probably isn’t) since it doesn’t actually imply a fault. It might be an attitude that it is always wrong to have, but it may occasionally have the right fit – hating something that is bad/evil for instance. Do crimes motivated by hate always hurt more? Why do they hurt more? Is it because the group to which the victim belong are more vulnerable when targeted because of membership of that group?

Four contrast cases

To coax out some of our intuitions about hate crime, I present four cases of crimes directed at someone because of some characteristic that distinguish them as members of a certain group. The questions we need to ask is: 1) Are all of them hate crimes? and 2) Do all of them have the property that make certain crimes worse than others?

Case 1: The standard

A member of the majority (white, say)  assaults a member of a historically disadvantaged minority (black, say), for racist reasons while making this motivation known to the victim and onlookers. This is a clear cut case of a hate crime if anything is.

Case 2: The ”deserving” victim

A non-descript person attacks a sadist torturer (Because it complicates matters already complicated, I’ve avoided to use the standard example of pedophiles here) because of hatred for sadist torturers. Sadist torturers are, let’s agree, bad people and it is apt to have some sort of negative emotion towards them. Causing fear and withdrawal among other sadist torturers is not obviously a bad thing. Yet – the motivation is hate against someone because of a certain characteristic and, presumably, the sort of harm to the victimized group associated with hate crime occur. Should this qualify? If not, it might be that what’s wrong with ”real” hate crimes is not the ”hate”, but that the hate is, somehow, at fault

Case 3: The New Categories

Moral development often proceeds by inclusion – groups earlier held to be outside the scope of some moral category is recognized as important. Hate Crime legislation arguably begun with a focus on crimes motivated by race, and then included sexuality, religion, beliefs, disability, gender, identity etc. The list seems open-ended and rightly so – it is not a list that is needed, but a criterion. One group of victims that might be included and ”protected” by hate crime legislation is ”Goths”. As an example of an ”alternative” lifestyle. Goths have been victimized because of their group membership, by people motivated by hatred, and their community has felt the impact. (Although, arguably, reactions to crimes may make them stronger by getting support from the rest of society, and by making the group more close knit. Also: Some groups thrive under adversity) What is lacking is the historical disadvantage (they are not ”Goths” in the historical sense), which might make the trauma of victimization less ”deep”, but that is a difficult question to answer. One may argue that the historical disadvantage should not be pinned down to membership of this or that group, but to groups viewed as ”other” in general. In that case, the trauma may carry over. (Note however, that groups are usually quite protective of their distinctive pasts. If targeted because of your affiliation to a soccer team, don’t claim ownership to the holocaust).

Case 4: The Resilient Group

Let’s say I’m targeted because I’m a Stoic. As a Stoic, I don’t mind, and my fellow Stoics don’t mind either. In fact, we mind less than would other victims assaulted for whatever reason. If what makes hate crimes worse is that they hurt more, this is not a hate crime that hurt more, and presumably should be punished less. If what makes them worse is that they are motivated by hate (apt or not), then this is a hate crime in the proper sense and should be punished as much.

Conclusion and further questions

The two rationales for hate crime legislation are both important: hate and prejudice should diminish, especially the ones that tend to be expressed in hurtful acts. And the additional harm caused be targeting someone because of a characteristic that matters to him/her means that it is even more important that these crimes diminish, than that parallel crimes does. It’s bad for the victim, for his/her group and for society in general. But having, and expressing, prejudices against someone who can take it is not as bad as having, and expressing, them against someone that is vulnerable. The predictable harm is not as great, and this should have some impact on how serious we think the crime is. The resilience of the group matters when it comes to what crimes should be prioritized in order to diminish harm. Prioritizing hate crime is even more important than enhancing punishment (and might be a more apt response to what’s worrying about it, while simultaneously expressing society’s rejection of intolerance as much as punishment enhancement does).

One last consideration though: We punish hate crimes against vulnerable groups, say, because of the greater harm these crimes normally tend to have – even if this particular crime did not cause more harm (say the victim died, was viewed as a liability in the community, etc). Some, perhaps most, laws are like that – judging the act by the harm caused by that type of act, not the token. But if we are allowed to make that sort of generalization to disregard the lesser harm caused by this particular act, why not disregard it when the act is of a type that targets a resilient group? Why not say that crimes motived by hate in general tend to cause greater harm, and thus should be judged as worse, even if targeting this particular group (Stoics) does not cause greater harm?

A further note on the moral status of hate crimes

Whenever you look carefully at an important concept, you are likely to find that it covers disparate cases. Especially when you are looking for morally relevant aspects of things (what’s so important about being a person? What’s so good about equality?), you may find that what is morally relevant is not necessarily co-variating with the distinguishing features of the concept of that thing. (Most persons can suffer, but perhaps not all persons, and some non-persons may be able to suffer, to). When looking at Hate Crime from a philosophers point of view, two questions arise:

1) What is ”Hate Crime”? And
2) Are hate crimes worse than parallel crimes (the same act, with different motivation)? If so, why? What makes them worse?

If hate crime is to be an important moral category, these two questions better have some non-trivial connection. What transform a crime into a hate crime ought to be what makes it worse.

Currently, I’m thinking about two quite distinct instances of hate/bias motivated crimes, and whether they should be assigned different moral status. Both rely on the connection between crime, intention and harm. In both cases, we postulate that the criminal has a thought through motivation for his/her actions and that his/her prejudice is actually part of consistent (though false) moral position.

First case: The mistaken racist
This person holds the believe that people of a certain race are inferior, and that they therefore matter less. To beat up a member of this class causes LESS harm than would beating up a person of the racists own group. This view is equivalent to the view held by most people about animals: while we should not harm them, doing so is less bad than hurting a human. This person would argue that since his crime hurts less, proportionality demands that it be punished less. This view seem to have been almost part of the system before the civil rights movement gathered momentum.

Second case: the political racist
This person believes that hate crimes hurt more, and that’s part of the motivation. He/she wants to cause the maximum amount of harm in order to threaten people of the targetted group for participating in society, ultimately to disappear from the neighbourhood/country/face of earth.

Let’s for the sake of the argument accept that these crimes actually cause the same amount of harm. Are the crimes morally equivalent? The mistaken racist does not intend or foresee the greater harm caused by the crime. Indeed, he/she believes it causes LESS harm. The political racist, on the other hand, has no such illusions. If hurting knowingly is worse than hurting unknowingly, the second case is worse.

There are interesting further questions about these cases, however: What is it that the mistaken racist believes? Is it that the crime cause less physical and emltional suffering, or is it that it MATTERS less? Is it a factual or a moral mistake? Should our judgment depend on what would happen if he/she was presented with evidence that in fact there is no morally relevant difference between the suffering of people of different races?
In the second case: does it matter if the political racist believes that everything will be better for both groups if they are separated, and the extra harm caused by the crime is regretable, but instrumentally justified? He/she may even agree that her action should be judged a crime, but that the intended long term end should be counted in her favour, and not be an aggravating factor.

Again: is it the intended harm, the predictable harm, or the actual harm that matters? How important is it whether the racist commit a ”honest” mistake?

Hate Crime: Beliefs, prejudices and aggravating factors

Increasing or decreasing a sentence based on the assailant’s motive is common in the law, and although a person’s abstract beliefs may not be taken into consideration in sentencing, racial animus or other prejudice can be considered if they are relevant aggravating factors. Enhanced penalties are appropriate for biased inspired conduct because it is thought to inflict greater individual and societal harm, such as the greater possibility for retaliatory violence, emotional damage to the victim and community unrest.

William Rehnquist

The above statement includes much of what is difficult with hate crime legislation. It’s well worth dissecting.

First: The assailant’s motive matters, and can even affect the severity of the punishment. Presumably, this means that we rank some motives as worse than others. Note that ”motive” is not the same as ”intention” here. If I intended to wave at a friend and in the process hit someone in the face, my intention makes my action less blameworthy than if I had intended to strike that person. This is uncontroversial, but it does not speak to motive in the relevant sense. But say I did intend to strike him, does it matter what my motivation was? Again, it does, if my motive, or my reason, was to stop him from doing something bad, rather than merely to cause him harm. But this, again, is not the ”motive” intended in ”hate crime”. It is, in fact (and I will return to this matter again and again for the next 18 months), highly unclear what ”motive” is.

Second: But we can narrow down on what Judge Rehnquist has in mind: Motive is a proper consideration in law. But abstract belief isn’t. This is based on a liberal principle to the effect that You should not be judged by your beliefs, but only by your actions. No one denies that we should punish the crime in hate crime. The contentious issue is whether we should add punishment for the motive.

Rehnquist states that ”racial animus or other prejudice” can be considered if they are relevant aggravating factors. There are several questions that opens up from this statement – What is the relevant difference between a prejudice and an ”abstract belief”? Can’t I have a prejudiced abstract belief? Whatever the difference, apparently prejudices can be ”relevant aggravating factors”. But can’t abstract beliefs be aggravating factors too? Are they ruled out by definition? What is an aggravating factor, anyway? Again, we have to look at how the statement continues

Third: Enhanced penalties are appropriate when the act (”is thought”, but surely that’s not a necessary qualification) to inflict greater individual and societal harm. This harm based justification for enhanced punishment is influential, fairly uncontroversial, and has strong support in legal tradition. If your action cause, or is likely to cause, more harm, you are more culpable and should, according to the principle of proportionality, be punished more. Presumably, the argument is that any factor likely to make the crime hurt more, is thereby a ”relevant aggravating factor”. But then, why make the distinction between ”prejudice” and ”abstract belief”? Does a crime based on an abstract belief about racial inferiority, say, cause less harm than a crime based on racial animus or prejudice?

Fourth: The relevance of the risk of greater emotional damage to victim and the victimized group seems uncontroversial, but what about the risk of retaliation and community unrest? Should I rather pick on people who wont retaliate? Is it worse to attack a much loved celebrity than an unknown homeless person? On the flip side – if my crime cause not community unrest but community cohesion, because people come together in their condemnation of it, is my crime thereby less bad? Utilitarian terms and conditions apply.

One of the key challenges to Hate Crime legislation is that it criminalizes thought, or motive, and thus that it is incompatible with certain fundamental rights. The answer to this challenge is, usually, that we don’t punish thought/motive on its own. Only when it manifests in independently criminal actions. But, the critic insists, we ADD punishment for thought/motive. Surely, the extra punishment is for the thought/motive?

But what makes a hate crime deserving of extra punishment is not just that it is a crime committed by someone who also harbors prejudiced thoughts. It is not even just that he/she commits the crime because of that prejudice. It is that the crime works as an expression of the prejudice. Surely, that is what make these crimes hurt more. It adds insult to injury, and, as we now know, injury’s caused by viciousness rather than by accident, genuinely hurts more. What this means, I take it, is that a hate crime is not just the criminal act plus some motivation, it is another kind of act. The ”extra punishment” is thus not based on punishing the motivation as an additional extra to the already punished crime, but on punishing this other crime.

The work cut out for us now is to make this notion more clear.

Sentimentalism and Sports

I used to care about team sports. Mostly on a national team level (local teams are too much work. I did a season as part of a supporter orchestra, however, but mostly for social reasons). I used to care how things went, and my mood would fluctuate accordingly. Opportunistically, I cared most about table-tennis, hockey and handball: sports where my national team tended to do rather well. But then one day I found myself watching a game of handball, a final I believe, and the team were doing poorly and I was very upset. Clear physical symptoms. And then I took a step back thinking ”Really? This is important enough to be upset about?”. I have never taken sports seriously since. I’ve watched it, enjoyed it, cared about it with the sort of interest intellectuals invented around the 1998 World Cup in France, but never again taken it seriously.

Now to make a ridiculously big deal out of this. It doesn’t matter weather ”your” team wins or loses, in any ”real” sense of ”matters” . It matters only when you care about it. Things matter in the game. Scoring a goal counts, things are instrumentally good or bad. There are local norms. Some of them purely conventional, arbitrary, others invented, almost discovered, to make the game more appealing or make it flow better. But it’s not important that you care about the game. Beginning with a simple case like sports (first, debunk the importance of your team winning – easy, just look at the case for caring about the other team and realize it is usually just as good. Second, debunk the importance of the values inherent to the game altogether) we can generalize to other values. Aesthetic values, etiquette. Maybe even morals. This, of course, is Nietzsche (who I had been reading at the time).

This is how a sceptic argument get started: if we can debunk the importance of this, why not everything? If the emotional impact of caring about something is based on pure conventions with no independent justification – why care about anything? Is it all arbitrary? This, of course, is existentialism (and yes, I had been reading those people at the time, to).

There are two good replies to this challenge.

First: I stopped caring about sports by questioning it’s meaning, but that’s not how the process got started. Rather, it was when caring stopped being useful. Meaning and, I would argue, value, is often generated by caring about things that has no intrinsic, independent value. This is how sentimental value comes to be. It’s very common that positive emotions generated in this way, say by your team winning, becomes tied to negative emotions generated by it’s losing. Some people manage to have the one without the other, but they are often accused of not really caring. You should care about things that doesn’t really matter, because that’s the way to generate things that do matter – positive emotions tied to changing, attention-grabbing activities. In the sports case, it was the realization that it wasn’t working: too much negative emotion, not enough positive. This is when you should kick the habit.

Second: When I noticed that this game did not truly matter, it was a contrast effect. It did not matter as opposed to other things that did. This is a quite general reply to one sceptic argument: when you realize a mistake, you do so because it doesn’t measure up to the truth. You now know the truth (even if it is just that the earlier belief was false). It doesn’t mean that everything you believe is false. Some beliefs, and some values, pass the test. When taking a similar step back from other activities, they still seem to matter.

It’s a good thing to challenge your values now and then, if only to weed some dysfunctional ones out, and reaffirm your commitment to those that truly matters.

Bonus: This, I think, is the best possible metaphor for narrowly clearing a deadline

The Implications of ’Ought’

(Dedicated to 300 year old David Hume, with whom one would have liked to chat, according to widespread scholarly opinion. I sort of think a contemporary version exist in the form of Simon Blackburn)

Normative/evaluative concepts are difficult to analyze all the way down. Attempts to do so tend to leave one with a normative ”residue”.”Value” is one such concept, one that I’ve spent the best part of my youth trying to get to grips with. ”Ought” is another, one that I’ve spent the best part of my youth neglecting. ”Reason”, of course, is the current darling of the moral theory set.

G E Moore, famously, took this difficult residue to as evidence for the fundamental irreducibility of value. Value is a simple notion, one which we grasp but don’t know how we grasp, and nothing more can be said about it. It’s notable (and noted) that this statement comes rather early in Moore’s Principia Ethica and that he then goes on to say quite a lot about value.(Wittgenstein at least had the decency to END his Tractatus with his similar, but more general, claim).

Clearly, as Moore realised, things can be said about simple notions, otherwise how could we distinguish between different simple notions?  For instance, notions such as ’ought’ carry implications. This blogpost, which hasn’t quite started yet, is about the implications of ’ought’. Goodbye, Youth.

Here are a handful of suggestions/observations, three about the ”implications” of ’ought’, and one negative about the inferability of ’ought’

1. ’Ought’ implies ’If’: the Hypothetical Imperative, an ”instrumental” ought. IF you want to get to the station in time, you OUGHT to take this short-cut. Some will say this is the ONLY sense of ’ought’ that makes sense. Even the moral ’ought’ carries conditionals of this sort.
2. ’Ought’ implies ’can’: If you ought to do something, you can do it. What you ought to do is, for instance, the act that has the best possible consequences of all the acts that you can perform. These may not be very good, but what can you do? You can’t be blamed for not doing what you cannot do. The complications here regards the scope of the ”can”.
3. ’Ought’ implies ’Would’: Not a strict implication, but this is an often used, but seldom recognised, method to backward engineer an inductive argument: If Utilitarianism is correct, we ought to put the fat man down on to the tracks to stop the runaway trolley. But I/you/most people wouldn’t. Thus, Utilitarianism cannot be correct. Utilitarians can, and do, reply that what you would do does not imply anything about what you should do, but still: this is awkward, and in need of explanation. If your moral theory implies that you should do something that you are reluctant to do, the theory suffers. It’s basically a sort of reductio argument, but with the ”absurd” replaced by the ”icky”. And then there is my pet peeve:
4. You CANNOT infer an ’ought’ from an ’is’. Try as you might, the self-styled Humean blurts out, gather all the evidence you can, as long as you have only descriptions, you cannot infer what we ought to do. My main objection against this line of argument is that it is LAZY. People, professional philosophers not excluded, use this argument in order to save themselves from additional work – the find the normative claim, fail to identify any normative premiss, and then they don’t bother with the rest of the reading. Hume was right, you cannot infer an ’ought’ from an ’is’, at least not until you know what ’ought’ means, how it is circumscribed by other normatively charged terms, and, in turn, what they mean and, possibly, refer to.

Ethics month

I’m a big fan of october and november, and don’t care who knows it. September is nice to, and has that crispness of air which implies clarity of thought, If you’re into that sort of thing, but  then again, there’s all that fuss about the beginning of term and I’m no fan of fuss. October and november means business as usual. Things have achieved a state of being usual, enough for business to adjust accordingly. Oh, David. What are you on about?

Beginning today, we are into what I, assuming that the world pretty much revolve around me and my interests, am calling ethics month. It is the month during which I teach ethics at the department for philosophy, linguistics and theory of science. Today it’s ”introduction to ethics” or, informally: ”What’s all this, then?”. Tomorrow, it’s ”the meaning of life”. The course is very cleverly structured (I didn’t do it, but if I had, I still wouldn’t hesitate to call it clever. Try to keep up): It begins with applied ethics,  about selling organs, animal ethics, abortions and so on. When these questions turn difficult, we’ll turn to normative ethics, about what makes things right and wrong. The principles against which background applied questions may be answered. When this turns out difficult, we turn to meta-ethics, dealing with the meaning of moral terms and the nature of moral facts and moral knowledge, if such is to be found. When this turns difficult, which it does quite soon, the course is over and questions will have multiplied. If I’m any good, the students will have learned to cope with that fact.

Philosophy is often like that, as someone tweeted recently: climbing a very high tower, and then looking up.

Teaching this course here is fun for me, for personal reasons. I attended my first philosophy lecture here, at the age of 17 and got to talk to the professor who, merely by being nice, helped me decide to go into philosophy for my self. Secondly, it’s ten years since I first took this course which I’m now teaching. Having spent most of the time in between in metaethics, its great and very useful to become reaquainted with the applied and normative side of ethics. As a meta-ethicist, its often easy to forget that those things exist as well.