Dispatches from the Culture Wars

From the article:

"We don't know if there was any contact between them other than verbal. Something like this doesn't come up all of a sudden. It was brewing," the police chief said in the Gazette story.

"It was a pretty vicious attack on the one gal. She didn't know it was coming," Miller told News 8. "She obviously went down to the floor very quick and tried to fend off her attackers."

Wait, she went down on the flood very quick to fend off her attackers, and you don't know if there was any contact other than verbal? Huh?

Posted by: Gretchen | June 15, 2008 11:06 AM

"Why not just charge the people who assaulted her with, oh I don't know, pre-mediated assault or GBH?"

Just guessing here, but if the attacking girls are minors, that might complicate matters. What prosecutor wants to turn some school bullying, even a particually violent school bullying, into something so serious?

Posted by: Suricou Raven | June 15, 2008 1:14 PM

I have been feeling for several years that anti-gay attitudes among Americans on the streets have been getting worse in recent years, particularly among the young. Yet, when I say this to my teenage nieces, who regularly call things they don't like "gay," they disagree, claiming that they have gay friends and that everyone uses the term, gay, as a word of disparagement, even their homosexual friends. I think acceptance of that word as invective is an indication that anti-gay attitudes are strong among the young, even the gay ones.

Posted by: deang | June 15, 2008 1:45 PM

I thought so too, deang, until I overheard a friend of my nephew at a party:
"Homophobia is, like, so gay!".
It nearly cracked me up (I was playing the "responsible adult" at the time). Then it got me thinking about "mad", "terrific" and others. The meanings of words change, so listen for the context. -DJ

Posted by: DingoJack | June 15, 2008 2:00 PM

I think it depends on the young people you know. Most of the ones I know aren't very homophobic at all. And a lot of it seems to clear up after high school, when there isn't all the social pressure to be an asshole.

Posted by: Sivi Volk | June 15, 2008 2:16 PM

Gretchen

I think they mean they don't know if the victim and the perps had had contact *before this incident*.

That would make the situation very different. If they had known and interacted with her, it's possible they attacked her for whatever stupid slight high-schoolers get into fights over. If they didn't know her, and hadn't had any prior contact, then there's almost no other reason for the attack than homophobia.

Posted by: Cooper | June 15, 2008 3:05 PM

Something "Chief Dan Miller of the Wayland Police" said in one of the quotes bothers me. He stated these things don't happen suddenly. He seems to be hinting at a prior relationship or exchange between the victim and the assailants. It's my impression that these things CAN and DO happen suddenly. Additionally, the Chief's attempt to stay neutral by laying-off some share of the motive on the victim is very disturbing. This may harken back to the "it's fine as long as they don't shove it my face" rationalization to discriminate against anyone who hasn't adopted the "correct" template for behavior. Maybe it's just me.

Posted by: Phil | June 15, 2008 6:32 PM

One of my pet peeves is when people use the term "gay" as a form of disparagement. I've actually heard the word "Jewish" being used in a similar fashion (i.e. "Nickelback is totally Jewish," which in this case translated to "Nickelback sucks"). I don't disagree that Nickelback sucks, but I couldn't believe my ears to hear such an anti-Semitic term (and yes, it is anti-Semitic, just as using the epithet "gay" in an insulting manner is homophobic). The comforting thing, though, is that the "gay as insult" phenomenon seems to be fairly age restricted. I have heard very few people over age twenty-five use it. I can only hope that that points to maturity and not a new trend on the rise.

Posted by: Sadie Morrison | June 15, 2008 8:03 PM

So why does everybody think that we need 'new' legislation to punish this? Why aren't existing laws good enough? Is it that everyone want crimes against 'their uniqueness' to be punished more? Beats me. I just think the existing laws should be enforced properly... I'd rather not have more stupid laws that are made to be bent all out of shape.

Posted by: RSM | June 15, 2008 8:37 PM

This is just fantastic, really. Because of these recent events, I now feel like those people who don't neccesarily agree with homosexuality have to be looked down on as bigots and bullies. I just think it should be put out there that just because there are people who don't neccesarily agree with the "morality" of homosexuality, doesn't mean we don't respect the opinions of those who support it. I wish everyone could understand that just because there's disagreements, doesn't mean there has to be hazing, bullying, or hatred of any sort. Though we have different views, the victim of all of this was my nearest friend and neighor for a long time.

Posted by: Kaiti | June 16, 2008 4:21 AM

Some of you need to sit down before you get the vapors. Is a 14-year old getting beaten up by other 14-year olds for being gay any worse than getting beaten up for being fat? For wearing glasses? For wearing the wrong kind of shoes? According to the report, the girl suffered extensive bruises but no broken bones; this wasn't a curb stomping American History X style. The girl got jumped and beat up. The fact that she is a vocal lesbian advocate should have little to do with the punishment; she could have caught the same beating for any of several dozen reasons, all trivial and nonsensical to a developed mind but perfectly rational to many 14-year olds (and paleolithic adults). News flash for those of you who may have forgotten: being 14, at least in American schools, is often a practice in suck. This kind of thing has been happening since enough kids existed in the same place for one to be different from the others. Sure, it's not right and the perpetrators should be punished appropriately, but a $2 million lawsuit? Honestly! If everyone who got unfairly bullied in school for being different was awarded a $2 million dollar lawsuit, ostensibly for lifetime therapy fees, then you would see the largest sustained fluctuation in wealth this nation has ever seen. The purpose of the punishment should be education and rehabilitation of the perpetrators, which it is not too late to do. Put them in alternative school for a semester; sentence them to a couple hundred hours of community service; get them counseling and anger management. But charge them with a hate crime and put them in the residential juvenile system? Why not just hand them a gun and point them at the nearest liquor store--it'll save you the time and expense of criminalizing them until they are young adults. Sue their parents for $2 million dollars because you'd "bet the parents of the two girls raised them to hate anything different from themselves"? Did the parents of my teenage bullies raise their kids to hate fat people? I know them, and I seriously doubt it, considering the father was fat himself. Bullies need to be isolated, treated and counseled, and parents of bullies usually need help raising their kids (who often have troubles that have little to do with poor parenting), but some people here want to charge them with very serious crimes and drive their families into the poor house. Who does that help?

Posted by: Shygetz | June 16, 2008 8:43 AM

Because most parents of bullies have $2 million their pocketbook?

Come on-- it's possible to hold bullies accountable for their actions without insanely over-stating the damage they caused. Perspective, it's a good thing.

Posted by: Gretchen | June 16, 2008 9:31 AM

Gretchen, of course the plaintiffs will never see any two million dollars out of these defendants no matter what the outcome of the case. that sum is not the point. the point is to impoverish the defendants for life, through slamming them with a damages verdict they can never hope to repay, and to do so with sufficient publicity that anybody else like them will hear of it and understand the message: don't be like those bigoted, bullying idiots, because you'll never stop regretting it.

Posted by: Nomen Nescio | June 16, 2008 10:41 AM

Shygetz,

All bullying is to be condemned and should be punished, according to the level of injuries--physical and psychological--incurred. However, there's a fact you just don't seem to get: homophobic attacks ARE different, in severity, in viciousness, in level of injury. Just ask Matthew Shepard's mother. There's a reason why hate crimes must be dealt with on a whole other level: because people DIE from them.

And when I said I was beaten into a "bloody mess"--I meant that literally. Not "some bruising" but serious injury and permanent scarring and disfigurement. I was a fat nerd in high school who was teased and bullied, so I KNOW the difference between that and a homophobic beating. It's not just gays who require "special rules" accorded to hate crimes, but all who are subject to such homophobically and/or racially motivated attacks.

So, get back to me after someone's gone after your skull with a baseball bat because you are (or are merely perceived to be) gay. Until then, you and your lack of empathy can bite me.

Posted by: gary l. day | June 16, 2008 11:33 AM

i'd prefer to try the bullies directly as adults, and lock them into adult prison with felony convictions. that being unlikely to happen, i'll settle for reducing them to economic privation instead --- would you prefer my alternative?

I'd prefer what I have now; that you remain part of a lunatic fringe who has neither the political nor social clout to forever ruin the lives of underdeveloped teens for actions that, while not acceptable, are nonetheless typical of children in that age group. How young can they be and still have you toss 'em in prison? My son is 3 and he pushed a boy down on the playground last week; wanna lock him up with Benny the rapist? Your hare-brained ideas would make the War on Drugs look like having to get your photo taken at the DMV.

All bullying is to be condemned and should be punished, according to the level of injuries--physical and psychological--incurred.

I agree with you on the physical. It is impossible to differentiate the psychological damage incurred by a single criminal action versus other factors. For example, let's take your situation. How much of your psychological damage was caused directly by this one attack, and how much was caused by homophobia from other facets of society, your family, friends, employers, etc., not to mention identity issues inherent in your struggle to find adapt to an atypical sexuality? And how does one untangle these factors to determine exactly how much your assaulters are culpable for? And then how does one adapt this to the fact that the attackers were underage? At what age is the attacker considered financially liable? Wanna go after the parents? Well, I assume that you are not one of those terrible people who think children are the wholly-owned property of their parents. Based on this assumption, can you financially ruin the parents if no significant fault can be found with their parenting based on typical societal norms, as you do not allow them free reign in controlling their children's actions? Believe it or not, many parents of bullies and other maladapted children are no more defective as parents than those of well-adapted children. Shall you ruin them financially too, just to prove a point or "send a message"? Careful of your answer; you may have children yourself one day if you don't already, and you will learn that while you can teach, guide, reward and punish, you cannot effectively dictate what s/he will and will not do when s/he is out of your immediate control.

However, there's a fact you just don't seem to get: homophobic attacks ARE different, in severity, in viciousness, in level of injury. Just ask Matthew Shepard's mother. There's a reason why hate crimes must be dealt with on a whole other level: because people DIE from them.

And when I said I was beaten into a "bloody mess"--I meant that literally. Not "some bruising" but serious injury and permanent scarring and disfigurement. I was a fat nerd in high school who was teased and bullied, so I KNOW the difference between that and a homophobic beating. It's not just gays who require "special rules" accorded to hate crimes, but all who are subject to such homophobically and/or racially motivated attacks.

You are demonstrably wrong; people get beaten to dangerous and deadly extents for reasons far more varied than racism and homophobia. One example that is easily approachable in the media is teen assault on the homeless, but there are others. Under your plan, the people who assaulted you would be less culpable if they had done it because you were homeless rather than because you were gay. However, in either case, you would be equally injured and they would be equally dangerous. Hate crime laws are not only unnecessary, they are wrong; if a guy kills me for being gay or kills me for my shoes, I am equally dead and he is equally dangerous to society. Punish the criminal for the injury they cause and the danger they pose, not for the thoughtcrime that motivated them.

So, get back to me after someone's gone after your skull with a baseball bat because you are (or are merely perceived to be) gay. Until then, you and your lack of empathy can bite me.

If you will re-read my argument, I was pointing out that your attackers A) probably weren't 14, and B) did not merely give you bruises with no lacerations, punctures, broken bones, broken teeth, etc. I was not minimizing your suffering, I was contrasting the extent of your suffering with the relatively minimal extent of the victim's suffering in this case, and indicating that your comparison of this case to your assault was comparing apples to hand grenades, and useless in determining just punishment. If the victim in this case had been beaten as severely, then it becomes a case of having to isolate the perpetrators from society for the danger they pose, and I would be all for throwing them into residential facilities. However, this was a case of simple bullying, made remarkable only by the fact that A) the perpetrators recorded it (something that, in this age of cell phone cameras, is becoming more and more common), and B) the victim was a gay rights advocate. No one died a la Matthew Shepard or caught a disfiguring beating like you. A girl was bruised. While one bruise is one too many, it is no more nor less than 14-year olds have been catching since the dawn of man. The fact that she caught it because she was gay makes her no more nor less injured than when I caught it for being a fat nerd, nor her attackers any more or less dangerous. Had she caught something like what you or Matthew Shepard did, it would be a different story, but she didn't. So perhaps you should redirect your indignation at a more deserving target. I will not defer to you or anyone on all matters of bullying because you were horribly treated, and I will not cop to accusations of insufficient empathy because I refuse to honor an absurd equivalence between the heinous treatment of you and the regrettable but not atypical treatment of the girl mentioned in the article.

Posted by: Shygetz | June 16, 2008 1:10 PM

I'd prefer what I have now

...that kids can get beat up for no good reason, with impunity for the assailants, and without recourse for the victims. you think i'm lunatic fringe? fair enough, because you sound antisocial to me. your kind of live-and-let-the-freaks-suffer attitude positively invites more youth violence. where exactly do you think that road leads?

Posted by: Nomen Nescio | June 16, 2008 1:36 PM

s a 14-year old getting beaten up by other 14-year olds for being gay any worse than getting beaten up for being fat? For wearing glasses? For wearing the wrong kind of shoes?

Yes, because the former scenario is reflective of society-wide bigotries whereas the latter scenarios, by and large, are seen primarily among adolescents. Our society does not contain a fairly large percentage of people who wish to see the basic rights of fat, bespectacled, fashion-impaired people stripped away. There are no constitutional amendments forbidding fat people from marrying or adopting kids. Sex between people who wear glasses was never illegal.

That said, I don't agree that the solution to homophobic bullying is impoverishing the families of the bullies.

Posted by: Sadie Morrison | June 16, 2008 2:14 PM

I'm (mostly) with shygetz on this one. There's a lot a family, a school administration, and society in general can, and should, do to let kids know that bullying is just plain WRONG; but no matter how enlightened an environment may be, kids will still be kids, and one thing kids tend to do, because they're immature and don't yet know better, is pick on other kids for being different; and sometimes this bullying gets WAY out of hand. I went to the best schools I could imagine -- tough but fair teachers, consistently enforced rules, real punishment for verbal and physical bullying, no established religion, flat rejection of bigotry, etc. -- and even then there was still a bit of bullying. One kid had to have elective surgery because we all made fun of his ears. We were KIDS, ferfucksake, that's why were still in school in the first place. (Would a kid who had come out as gay have been treated worse than the kid whose ears stuck out? I don't know, since none came out until after they'd moved on. There was a lot of "fag" talk, mostly (but not exclusively) from the more redneck-ish kids, but there were also a lot of kids who at least pretended to be enlightened and accepting.)

I'm all in favor of punishing parents who clearly do nothing (or worse) to keep their kids in line. But not all bullies have that kind of parents; and we should avoid punishing parents who have kids who -- surprise -- act like kids. I suspect most bullies come from families that are already beset with problems; and adding criminal or civil litigation to those problems won't improve either the environment or the kid.

I do disagree with shygetz on the need for hate-crime laws: yes, there are already laws against violent assault and intimidation; but we've passed hate-crimes laws precisely because the original laws weren't consistently enforced. If states and counties start enforcing their original basic laws consistently, without regard to the identities of victims and perps, THEN we can get rid of the hate-crime laws. (Besides, AFAIK, the hate-crimes laws only tend to be invoked when local authorities are seen not to play their parts.)

Posted by: Raging Bee | June 16, 2008 2:31 PM

Yes, because the former scenario is reflective of society-wide bigotries whereas the latter scenarios, by and large, are seen primarily among adolescents.

Um...not quite. Kids tend to respond to the opinions and prejudices of the adults in their lives; and whoever the adults condemn or ridicule (gays, fat people, rednecks, Muslims, Democrats, Republicans, whatever) will be reflected in the kids' choice of victims, whether or not the adults explicitly condone any acts of bullying. IF kids beat up on a fat kid, it's because they got a signal from someone that fat people were "bad" or "inferior" or had transgressed some norm.

Another thing: it would probably help to teach kids both the skills and the ethics of self-defense, something many parents shortsightedly refuse to do. If it's understood that kids have a right to fight back, then the bullies may feel less confident of getting away with their actions.

Posted by: Raging Bee | June 16, 2008 2:41 PM

Okay, shygetz is now equating hate-crime laws with "criminalizing thoughts," and thus leaving the realm of ratinal discourse altogether. Auf wiedershen, dude, you can come back any time...

Posted by: Raging Bee | June 16, 2008 2:46 PM

Gary,

I was not willfully conflating your opinion with Nomen's; I simply thought that by preceding my argument with the appropriate quote from the appropriate source, my correspondents would be able to differentiate who I was addressing in each section. To clarify, the parts following your quotes are addressed to you, and the parts following Nomen's quotes are addressed to him. At no time did I mean to call you lunatic fringe.

To sadie:

Yes, because the former scenario is reflective of society-wide bigotries whereas the latter scenarios, by and large, are seen primarily among adolescents.

Adults are robbed constantly; should we crucify teens who bully for lunch money? Also, as I directed at becca, punishing someone more harshly because someone else wholly unrelated did something (in this case, punishing the bullies because wholly unrelated people performed crimes motivated by homophobia) is a form of scapegoating, and is inherently unjust. You cannot hold the perpatrators culpable for the actions of another unrelated person, much less for something as nebulous as "society".

To raging bee:

I do disagree with shygetz on the need for hate-crime laws: yes, there are already laws against violent assault and intimidation; but we've passed hate-crimes laws precisely because the original laws weren't consistently enforced. If states and counties start enforcing their original basic laws consistently, without regard to the identities of victims and perps, THEN we can get rid of the hate-crime laws.

The answer to an injustly enforced law is not an injust law. If you enact a state or local hate crime statute, there is nothing preventing someone from declining to charge on both the original assault statute AND the new hate crime statute. If you invoke Federal hate crime laws with Federal prosecution, hate crime laws are still unnecessary. You could institute Federal assault laws that could be prosecuted by Federal authorities when local authorities fail to do so, independent of the motivation for the crime or the "protected class" of the victim.

Posted by: Shygetz | June 16, 2008 2:53 PM

I AM talking about an added level of punishment response as an indication of societal disapproval of acting out on hate in general terms. I know you probably feel that increasing punishments for hate crimes in some way diminishes or insults the victims of other types of violent crime--but I don't see it that way. My perspective is that these additional levels of punishment merely redress the historical LACK of punishment for such crimes in the past.

Gary, I take your point, but...you just can't do that. These are individuals you're punishing. You're not punishing their predecessors, or their possible successors; you're punishing them. There are untold horrendous crimes of the past for which the perpetrators will never receive justice. You can't make up for that by increasing the punishment of people who commit similar crimes today. It used to be perfectly legal for husbands to rape their wives-- I would never argue that we should increase the penalty for spousal abuse today in order to make up for that. Simply having appropriate penalties is what we need to do. The fact that we punish homophobia-related crimes means we're doing the right thing-- we're not making an exception; suggesting that it's not really a crime if it's committed against a homosexual. I think that increasing the penalty above and beyond what it would be for a crime committed with some other kind of motivation is taking good intentions a step too far.

Posted by: Gretchen | June 16, 2008 3:04 PM

...how exactly am I to avoid the conclusion that this renders thoughts criminally actionable?

Um...Because it's still the ACTION that's actionable?

Besides, there are plenty of long-standing examples of crimes being differently punished based on what courts know of the perp's motives. What's the difference between first and second degree murder? The perp's intent and motives as demonstrated by the evidence. Ever heard of such things as "assault with intent to..." or "posession with intent to..."?

(Is burning a cross on a black person's property just an act of vandalism or fire-code violation? Don't make me laugh.)

The answer to an injustly enforced law is not an injust law.

Actually, sometimes a flawed or unjust law is the ONLY answer to an unjust law or societal attitude. Sometimes, in this less-than-ideal world, you have to choose between two forms of unfairness.

Posted by: Raging Bee | June 16, 2008 3:19 PM

I generally agree with Shygetz and Gretchen, though I differ on some nit-picky points. But agree the general idea that Hate Crime legislation is wrong. It is punishing people for their thoughts and feelings. It's legal to hate someone or a group. It's legal to be a racist. So why should these motives make an actual crime more of a crime?

Nomen Nescio, I've been on the receiving end of bullying for being gay, for being a geek, and for many other reasons. I related in an earlier thread that the story of my friend, who was beaten and raped to the point he needed emergency surgery to save his life, perpetrated because he is gay. But I don't think that crime would have been any less heinous if the attackers had done it to a straight kid just for fun. The bullying I endured was no less painful when it was because I'd blown the curve than it was because of who's ass I'd been seen checking out.

To Raging Bee's point about the need for hate-crime laws due to uneven enforcement, I think stiffer penalties for dereliction would be a better solution. Perhaps even charges of aiding and abetting or accessory after the fact. That, or something similar, seems a better solution too me.

The example given where motive is taken into account, "assault with intent to..." or "possession with intent to..." are examples where the government is attempting to prove that another crime was also either being attempted or was about to. For example, with assault with intent to kill or rape or any other application, the thing they were intending to do is also a crime. Not so in the case of Hate Crime. It's not a crime to hate and I don't ever want it to be.

Posted by: Abby Normal | June 16, 2008 3:54 PM

and, FWIW, i don't much believe in letting the punishment fit the crime. i believe in using punishment to achieve some social good. in this case, i'm trying to argue for a level of punishment that would, hopefully, help prevent other instances of similar crimes in the future.

Nomen, this has been argued before by libertarians. The person I remember making the argument was Heinlein, in fiction and I'm sure in jest. The argument goes that the purpose of laws is to proscribe socially destructive behavior, and the purpose of punishment is to maximally discourage future violations of law. The logical conclusion, as Heinlein pointed out, was to have a codex of laws that only include socially destructive actions with one and only one penalty for breaking any of them--death.

Perhaps you should rethink your position.

Posted by: Shygetz | June 16, 2008 4:06 PM

Nope; the action is murder and you introduce two different crimes based on what the perp was thinking when he murdered, independent of justification...

Right -- in other words, what you call "criminalizing thought."

The example given where motive is taken into account, "assault with intent to..." or "possession with intent to..." are examples where the government is attempting to prove that another crime was also either being attempted or was about to.

Right -- the state tries to prove the perp's intent (i.e., what he was thinking) based on his actions. In other words, what shygetz called "criminalizing thought." This is the sme as what hate-crimes laws do: punish a crime based on the intent and likely result, as well as the act itself.

How does a local/state hate crime law address the issue of inconsistent enforcement?

IN the case of Federal hate-crimes laws, the Feds can see what the state does in relation to the state laws, and if it's not satisfactory, prosecute under the hate-crimes statute. IIRC, that's what they did in the Rodney King case, after the CA jury acquitted the cops.

Does it matter if they were trying to intimidate you because you were black, Catholic, Jewish, gay (protected classes) or a carpetbagger (non-protected class)?

It matters that a) the act was clearly intended to cause fear; and b) a reasonable adult would expect it to cause fear, based on a longstanding pattern of well-documented historical fact.

Besides, shygetz, you and other narrow-minded "libertarians" are ignoring an obvious fact: even without "intent" clauses stated in law, juries tend to make jusgements, not only on acts themselves, but on what the perp was understood to be thinking. And they give harsher sentences when they think the perp had more evil motives.

Posted by: Raging Bee | June 16, 2008 4:27 PM

it's one thing to call me a hare-brain, Shygetz, but calling me a libertarian is just going too darn far. let's try to maintain at least some semblance of civility, here! Heinlein's slippery slope argument is flawed because he was thinking like a libertarian; that sort of logic does not work in actual societies. that's why i did not, in fact, actually propose such a "solution", and tarring me with that brush is fallacious.

Posted by: Nomen Nescio | June 16, 2008 4:46 PM

But rather that in the case [of] Hate Crimes the government is punishing people for things that are perfectly legal, feeling prejudice and hate.

What specific hate-crimes law can "punish people for things that are perfectly legal" without their having committed a crime first?

"Criminalizing thought" means punishing people SOLELY for their thoughts, and not their actions. The phrase is not at all applicable to hate-crimes laws, which, like most other laws, address actions first and foremost. The current misuse of this phrase by so-called libertarians is just plain dishonest.

Posted by: Raging Bee | June 16, 2008 4:54 PM

Let me also add that I don't think society-wide homophobia and theft are really comparable. One involves prejudice and bigotry aimed at people for no other reason than that they possess a specific trait; the other is usually an impersonal matter of opportunity.

Posted by: Sadie Morrison | June 16, 2008 5:01 PM

>> You asked whether or not homophobic bullying is more pernicious than the other cases of bullying, and in my opinion it is. >>

Why is it more pernicious? Why shouldn't all bullying be dealt with harshly? Why is it that gays that get bullied should get more justice than somebody else who gets bullied? I think everybody that bullies should be punished equally.

Posted by: mroberts | June 16, 2008 5:01 PM

Mroberts, I also would agree that all bullying is wrong. There are degrees of bullying, of course, and more severe cases should be punished in kind. I happen to think that homophobic bullying is more pernicious than, say, bullying fat people or D&D fans (and here's where you and I are going to disagree, and that's fine), because gays experience society-wide bigotry that fat people or RPG fans generally do not. Both forms are pernicious, and both are wrong, but the one often extends into people's lives beyond high school. Again, on the topic of how to punish individual cases of bullying, I would say that it depends on the circumstances of each case, and it does not matter why the bullying occurred in the first place.

Posted by: Sadie Morrison | June 16, 2008 5:11 PM

The problem of Hate Crime laws is not that we are criminalizing a thought -- almost all crimes have an intent element, and there are inchoate crimes in which no action at all may be required. Rather, I object on the grounds that the additional punishment seldom furthers any of the goals of the criminal justice system other than the physical incarceration of the Defendant.

It also makes the trial much more difficult for everyone involved. If the Defendant did not call the victim some name before the assault, how is the state to prove the intent? By introducing witnesses from the Defendant's past who had seen heard racist/homophobic/etc language or conduct. So the Defendant's lawyer has to defend not just the conduct in question, but every part of the Defendant's life. The risk of a Defendant being convicted for being a bad person goes way up, with little or no gain to preventing further crimes.

Posted by: kehrsam | June 16, 2008 5:16 PM

I forget who said it, but the thing about many teens and young adults calling things "gay," is that they don't make the connection between casual homophobia and things like this.

Holy crap, there's a lot I want to respond to here, but watching you guys debate is much more informative.

Posted by: Bachalon | June 16, 2008 5:42 PM

kehrsam said:

By introducing witnesses from the Defendant's past who had seen heard racist/homophobic/etc language or conduct. So the Defendant's lawyer has to defend not just the conduct in question, but every part of the Defendant's life. The risk of a Defendant being convicted for being a bad person goes way up, with little or no gain to preventing further crimes.

That's about the best concise objection on this matter I've heard.

Posted by: Gretchen | June 16, 2008 5:46 PM

>> Humiliation can lead to other things. >>

slpage, if you are implying that the anti-Democrat attitudes expressed toward that child are going to lead to violence, I think you are making a major leap. Considering how much political bickering and hostility in this country there is, I think violence would be a much higher levels if could actually connect verbal attacks with physical attacks. Are you advocating that we somehow regulate what people say to prevent some possibility that it may lead to violent action later? It seems that way based on what you posted, but I wasn't sure.

Posted by: mroberts | June 16, 2008 6:10 PM

Actually, I'm pretty darn sure the perpetrators don't think they did anything wrong, and deserve no punishment at all-- unlike Shygetz and myself, who recommend what we think is an appropriate punishment. You might as well say that anyone who advocates anything less than drawing and quartering the perpetrators is agreeing with them

Shygetz pretty much invited it with his first post. He got to the semi-reasonable stuff after spending a couple paragraphs telling people who were very angry for a very good reason that they were being silly:

Some of you need to sit down before you get the vapors.

If Shygetz hadn't wanted a blast of flames in his face like a character from "Backflash", he shouldn't have started out by insulting folk and saying, essentially, "this is just kids being kids". Anything sensible he said after that was not going to be heard.

You just made the mistake of hitching your wagon to him.

These little thugs probably are not going to receive an appropriate punishment, if they receive any at all. This fills us, who have seen far too many such thugs move on and casually forget about their crimes while the victims are left to deal with the scars, with terrible fury. We don't want to educate or rehabilitate, we don't want to help - we want them to suffer as much as they have made their victim suffer.

But that's not going to happen. Nor is your "appropriate punishment". Because some people think that it's OK to beat up gays, and far, far more think that this is just kids being kids.

Posted by: Seraph | June 16, 2008 8:18 PM

News flash: ALL thoughts are "perfectly legal," including the mere desire to sell drugs or shag a different 15-year-old girl each day. This talk about punishing people for "thinking legal thoughts" is pure horseshit.

Possession with intent to sell carries a greater sentence because selling drugs is itself illegal.

And burning a cross in a black person's front yard carries a greater sentence than most other acts of vandalism because depriving people of their rights by means of intimidation is itself illegal. Why is this basic concept suddenly so hard for you to understand?

If the Defendant did not call the victim some name before the assault, how is the state to prove the intent? By introducing witnesses from the Defendant's past who had seen heard racist/homophobic/etc language or conduct. So the Defendant's lawyer has to defend not just the conduct in question, but every part of the Defendant's life. The risk of a Defendant being convicted for being a bad person goes way up, with little or no gain to preventing further crimes.

Oh please -- this happens in ALL criminal litigation: the defendant's past actions get called into question to demonstrate a pattern that the court uses to determine, for example, whether the defendant is likely to repeat the crime, or whether rehab might work better than a long jail term, or whether his intent might be strong enough, or irrational enough, to override the deterrent effect of a light sentence. Now the exact same thing is being done under a new label, and you're acting like it's a new and alien development? Grow up, folks!

As for whether it does any good, I'd say it does about as much good as anything else a society does to indicate what behavior it will or will not tolerate. If a state thinks it might be embarrassed by Federal intervention in its local crimes, it may be more willing to punish its own good-ol-boys than otherwise.

slpage wrote:

I pretty much agree. However, my daughter has had a kid point at her and yell "Democrat, Democrat, Democrat" when the kid found out my daughter - who is 10, by the way - doesn't like George W. Bush. I am unaware of similar incidents in which Bush-loving kids (and there are many - my daughter has told me that several kids in her class have made statements such as "Bush is great" and "If you don't like Bush, you must hate America" - clearly, they hear this crap from their -parents) were humiliated by theor peers.

When I was in junior-high (which pretty much coincided with the whole Watergate-to-impeachment track), the few kids who liked Nixon and didn't support the canonization of JFK learned very early on to keep their mouths shut. It was, of course, good that we were that politically aware, but we were still kids, and our manners and debating skills were still weak. In my case, I remember absolutely ZERO adult encouragement of actual bullying of political minorities. And sometimes, the adults managed to channel all that energy into more structured forms of expression, such as a debate on the merits of slavery, and another debate on world-government. In your estimation, do you think there was adult complicity in the bullying of anti-Bush kids? I'd certainly agree that the Republicans' "with us or with the terrists" rhetoric could easily be taken by kids (the normal as well as the overgrown kind) as a licence to attack "the enemy."

To a certain extent, this sort of thing is an inevitable consequence of the development of political awareness among kids. At the very least, taunting other kids because of their (or their parents') political views makes more sense than taunting them because of their skin color.

Posted by: Raging Bee | June 17, 2008 9:47 AM

And burning a cross in a black person's front yard carries a greater sentence than most other acts of vandalism because depriving people of their rights by means of intimidation is itself illegal. Why is this basic concept suddenly so hard for you to understand?

That is exactly my point. The extenuating circumstance in your example is itself illegal, criminal intimidation. I'm asking why the particular circumstance of hate should justify greater punishment when hate is not illegal. You keep answering by saying that it's okay to look at circumstances. But I don't dispute that. I'm just saying that the specific circumstance of hate is not a valid basis for greater punishment.

I'll try asking my question in a new way. What is it about a crime being perpetrated because of bigotry that makes it more of a crime than that same act being perpetrated for say greed or pure sadistic pleasure? Are you arguing that assaulting someone because they're gay, as opposed to assaulting someone because they think it's fun to hurt people, is a greater crime because the former includes a component of criminal intimidation that the latter lacks?

Posted by: Abby Normal | June 17, 2008 11:19 AM

Raging Bee said:

No one here ever said it was "more of a crime;" we said that the severity of ANY crime, and thus the appropriate punishment, is judged by, among other things, the intent, to the extent that intent can be proven or verified. My point has always been that hate-crimes laws, good or bad, are just another means of doing the same thing. If "assault with intent to kill/maim/rape" is a crime, separate from "simple assault," why not "assault with intent to intimidate a certain targeted group of people into giving up their legal rights?"

What about "assault with intent to beat the crap out of somebody you irrationally hate"? Do you really think that most hate crimes are perpetuated in order to make a political statement, rather than simply bigotry manifesting as violence? I wouldn't credit most violent bigots with having that high a degree of intellect and deliberateness.

Posted by: Gretchen | June 17, 2008 12:35 PM

Sorry if I was being obtuse. It was not intentional. Funny, that you would view my questions as an attempt to dodge your answers. I'd read your previous replies as an attempt to dodge my questions. But your definition of hate crime as crime with intent to intimidate is now clear to me. Intimidation is then additional crime, which might justify greater punishment. Hopefully we can move this discussion forward.

If that's all that hate crime laws did I don't think I'd have a problem with them. But they do more than that. To be prosecuted for hate crime the government need only prove that the crime was motivated by bigotry against a protected class. It also constitutes a felony.

Intimidation on the other hand is generally a misdemeanor. Different jurisdictions have different laws governing it. But for the most part the government would need to prove that the act created fear of future harm either in the victim or the community. I think that could be successfully prosecuted in most cases. So I say let that be the charge instead.

To your point about there being precedent for considering intent and likely outcomes, I still agree that it is good and right for them to do so. Judges should be allowed to weigh the individual circumstances of a case when sentencing. But hate crime laws generally force minimum sentences and thereby tie the judge's hands, regardless of whether or not the specifics of the case warrant the additional penalty.

I'd be curious to hear your opinion on R.A.V. v. City of St. Paul, where the Supreme Court struck down, rightly in my opinion, an ordinance which proscribed greater punishment for a burning cross on a black persons lawn or painting a swastika on a Jewish person's door. The court ruled that it could not consider content in those cases, as it was an unconstitutional infringement on the First Amendment. As you've used cross burning a couple time to support your argument, can you cite an example where cross burning has been upheld as greater crime since that decision in 1992? I'd be interested to see the justification.

Posted by: Abby Normal | June 17, 2008 1:38 PM

Seraph said:

Why is it absurd? An adult in this situation might very well sue for pain and suffering. Demanding payment for medical treatment and therapy after a beating that the perpetrators posted on youtube so they could broadcast and boast about their victim's humiliation is hardly a frivolous lawsuit.

Sure. Asking for $2 million for it, however, is. Probably more kids get beaten up by other kids at some point between the ages of 3-18 than not. Should they all get $2 million for pain and suffering too?

One person made a half-serious suggestion that the victim should sue for her therapy costs as a way to get at least some justice given that the criminal justice system isn't liable to do as much about this as it should.

Shygetz responded that some of us need to sit down before we get the vapors, that the victim's beating wasn't really that bad, and that this was just kids being kids.

Productive discourse became impossible at that point.

Ah, yes...I sure know that when I hear someone use the word "vapors," vital systems in my brain shut down and I'm not longer capable of having anything resembling rational discussion.

When people are this mad, agreeing with someone is taking their side, whether you meant to our not. Irrational, I know.

If people are that mad, they should probably refrain from posting at all until their head clears a bit.

Responding to vented rage as if it was a serious policy suggestion is pointless at best; responding as Shygetz did guarantees a fight.

I'm quite sure that Nomen and gary, at least, are deadly serious about their proposed "policy suggestions," and in any case you're blaming the victim.

If a good suggestion is unlikely to be implemented, then it's a bad suggestion.

Ah, okay-- so it's better to go with the bad suggestion from the start, then.

Civil trials have a lower standard of evidence than criminal trials; if bullies get let off at criminal trials but victims can win lawsuits, then lawsuits are the way to go.

Public schools already have every necessary tool at their disposal to punish bullies as much as is warranted. Turning bullies into criminals does not solve anyone's problem.

Posted by: Gretchen | June 17, 2008 4:47 PM

Do you really think that most hate crimes are perpetuated in order to make a political statement, rather than simply bigotry manifesting as violence?

That depends. Seems there's a fair amount of overlap between the two, at least to me. Where does "__________ get out! You're not welcome in this town!" fit?

Posted by: Seraph | June 17, 2008 5:30 PM

Well fighting words, as established by Chaplinsky v. New Hampshire in 1942, is an instance where I think the SCOTUS ruled wrongly. Luckily since that ruling the court has consistently narrowed the scope where it can be applied and chipped away at it's meaning. In R.A.V. v. City of St. Paul they ruled that the government cannot consider the content of the message, that in law, burning a cross is the same as burning a rhombus. It may be a violation of fire code, vandalism, or whatever. But the fact a burning cross could be considered particularly offensive to African Americans could not be considered.

They did state that such a law could be constitutional if it applied equally without regard to content. Which is why I was asking about the source for your repeated claims of cross burning carrying a stiffer penalty. I'm not aware of any recent cases where that has held up. So if one exists I'd be very interested to learn more about it.

(This is why local governments can, IMO at least, ban hostile symbols in certain public places -- they're tantamount to "fighting words," just like a huge banner saying "Fuck you, get out of town!" cannot be displayed in a community center.)

Here you're talking about government speech, not private speech. This is a completely different category than hate-crime.

My original objective was a) to point out that there was a reason why hate-crimes laws were passed in the first place; and b) to cut through all the crap about "criminalizing thought." As long as we're past that sort of blithering, I'm satisfied.

I'm afraid I will blither a bit more. Regarding point "a" I agree there is good cause for action. I just don't think the hate-crime laws as they were enacted are the right solution. Similar to how I think education needs help but dispute NCLB is the answer.

As to "b" my reason for pointing out the difference between intimidation and hate-crime was because I wanted to demonstrate that in law they are two very different things, with different proofs required and different penalties. Hate-crime as it exists today is not crime with intent to intimidate. It's a wholly different animal. The law does not do what you seem to think it does. If it did I'd be behind it.

What it does is proscribe greater penalty for crimes motivated by bigotry or perceived bigotry, rather than intent to intimidate. I agree with the Wisconsin Supreme Court in Wisconsin v. Mitchell that such laws criminalize, "bigoted thought with which it disagrees" and punish a "subjective mental process." Further, as kehrsam points out, to prove bigotry the prosecution often needs to go deeply into the defendants past. This potentially has a chilling effect on free speech, where a person needs to hide their bigotry in order to avoid having hate-crime charges tacked on to any offence.

Hate-crime is fundamentally different from the historical applications of intent and motive you've cited in that it punishes subjective thought instead of objective action. Other laws, such as criminal intimidation, non-discrimination, and harassment could achieve similar ends as the stated goal of hate-crime laws without the necessity to define protected classes, tying the judge's hands at sentencing, or the dangerous implications to freedom of thought and expression.

Posted by: Abby Normal | June 18, 2008 12:35 PM

This is an utterly nonsensical ruling. That's a bit like saying it doesn't matter what words I shout in your ear, I have to be punished the same whether it's baby-talk, slander, potty-humor, or hateful epithets that clearly apply to people like you.

Now we've departed from hate-crime and are into the realm of hate-speech. I think the government should treat hateful epithets the same a baby-talk. That is the essence of free speech. The government doesn't get to choose what we are and are not allowed to say (with a few exceptions that have been gone over ad nauseum on this site). The fact that this discussion has so easily drifted from hate-crime to hate-speech just goes to show how thin the line is and how slippery the slope. The same thinking that justifies the former also justifies the latter.

No, I'm talking about individual speech in public places.

Sorry, your Civic Center example threw me, as those usually have municaple funding. I see what you're getting at now. Here again we're skating along the border between hate-crime and hate-speech. I see this as a serious threat to liberty.

there has to be an objective action before ANY law gets invoked in the first place. No one cares if you're racist unless and until you commit a criminal act that looks racist.

There are two components here, the action and the motive. The motive being racism in your above statement. When two people commit the same crime and one gets a federally mandated additional penalty purely because it appears to be racially motivated then that additional penalty is punishing the racism. The fact that the person must first commit a crime before the government can invoke the additional penalty does not change that. But being racist is and should be legal.

Imagine if the government institued greed-crime legislation. Anyone found guilty of commiting a crime motivated by greed automatically had the duration of their sentence doubled. Would that be acceptable? How about lust-crime? Do you see the danger this precident?

Posted by: Abby Normal | June 19, 2008 10:05 AM