The moral relevance of hate: On motives, harms and expressions

31 maj 2011 | In Ethics Hate Crime Moral philosophy Moral Psychology politics | Comments?

Motive and criminal law

The standard interpretation says that a Hate Crime is a crime motivated by animus towards a group on basis of race, religion, etnicitiy, belief, sexuality, ability etc. The difficulty, and much of the controversy, surrounding Hate Crime legislation, concerns this emphasis on motive. Usually, we are punished for for our actions, occasionally also for our intentions (which speaks to culpability), but not for our reasons or motives. Doing so, the critics argue (See James Morsch The problem of motive in hate crimes (1992)), would 1) introduce a new mens rea (”guilty mind” )into criminal law 2) ”punish thought” and 3) be exceedingly difficult to prove.

Since we don’t have direct access to peoples motives, we have to rely on circumstantial evidence (arguably, this is so for intentions as well). Even if we can find such evidence for hate motive, it’s difficult to show that this was the only or the main motive behind a crime. In consequence, hate crime convictions are rare.

Motive and expression

Are motives essential to hate crimes? Or is it rather a matter of how the crime is perpetrated? Rather than hate itself, it is the hate expressed that convert a crime into a hate crime. ”Circumstantial” evidence, such as words uttered during the attack, would then be more than just evidence: it would be constitutive of the crime as a hate crime. If ”expression” is what is important to hate crime, it’s no longer a problem that circumstantial evidence may be misleading as to the motive of the perpetrator – what’s being expressed is independent of that motive. My motive in saying ”there is a phone call for you” may be to take your seat while your gone, but the meaning of my statement is not altered by that fact (See Blackburn Group minds and expressive harm 2001).

For illustration, consider the table below. On the one hand, we have the question of motive. Let’s simplify matters and say that an act is either motivated by hate or not motivated by hate. On the other hand, we have expression and again: hate expression or non-hate expression. In the table, we find two relatively easy cases, and two difficult ones.

The easy cases

1) Hate Crime 101 In the top left, we find a hate motived crime expressing hate. Painting a swastika on the wall of a Jewish cemetery, say. This is a clear cut case of a hate crime.

2) Ordinary crime In the bottom right, we find the non-hate motivated, non-hate expressing crime. This is not a hate crime. (There is an added dimension not considered here: whether the hate is perceived or not. This is independent of the other factors)

The difficult cases

3)”Concealed hate crime” In the top right, we have a case where I’m motivated by hate, and I select a victim representing the group I hate. But I make it look like an accident, or am persuasive in arguing that my motive is greed or something else. In this case we have the two normal conditions ”crime” plus ”hate motive”. What we don’t have is hate expression. This, of course, means that we have no evidence of a hate crime. But is it still one?

4)”Fake” hate crime In the bottom left, we find cases where the means used for the crime has all the hallmarks of a hate motivated attack, but the motive is something else. To create a diversion, say. Or, even more poignantly: my motive may be to cause as much harm as possible, and I’ve decided that a racist-looking attack is the best way to cause harm and societial unrest.

What matters, motive or expression?

Let’s concentrate on 4). 4) may seem just as bad as 1). There are two lines of reasoning behind that statement. First: if what makes hate crimes worse than other crimes is that they (tend to) cause more harm than other crimes, then 4) is clearly as bad as a ”genuine” hate crime. If the victim and the victimized group thinks it is a hate crime, the same sort of emotional pain, insecurity and suspicion arise. Second: if what makes a crime a hate crime is the motive expressed, rather than the actual motive, 4) is a hate crime, and thus, trivially, as bad as a hate crime.

Taking expression to be essential to hate crime, and thus treating 4) as an example, has certain benefits.

If we think that bringing motives into legislation messes things up, legally and evidence-wise, focusing on expression – by definition publicly available (although it might take som decoding) – is a good replacement. An improvement, even.

We have other options, however. 3) May be a hate crime, but not as bad as 1) and 4). 4) may be as bad as 1), but not a hate crime. Alternatively: if we think 1) is worse than 4) motive may make things even worse. If expressing hatred cause the extra harm, this is one aggrevating factor, but actual hate may be another. We then have three conceptually distinct versions of hate crime – mere expression, genuine expression, and concealment. We thus have the conceptual means to justify different punishments for each of these.

On the badness of motives

I mentioned two cases of ”fake” hate crime. First: I want to cause a diversion while I commit yet another crime, say, or I want something to keep the media attention away from other affairs for a while. This is sneeky, cynical even, but does not make that part of my criminal activity worse. But what if my motive is that I want to cause as much harm as possible? I don’t care about the victims race, I only care about them as ”vehicles of harm”. If I could find some other means of causing even greater harm, I would. This sort of sadistic, yet ”equal opportunity” motive seems on the face of it to be as bad as hate motive. If motives matters, then, and Hate Crime legislation suggest that it might, then we may have to open the door for other punishment enhancements. This, the critics argue, is a dangerous door to open. We may certainly make the moral case that certain motives are worse than others, but this may be one moral value that should not carry over into legislation.

Putting our focus on expression, rather than motive, fits the Hate Crime category into a classic conception of the law as dealing with what people do, rather than with what they think or feel.