Weren't you sickened by the recent death of Tyler Clementi, the Rutgers University freshman whose roommate secretly turned a webcam on him while he was having a sexual encounter with another male, streamed the images onto the Internet and thus apparently drove him to throw himself off the George Washington Bridge?
Couldn't you just die at the notion that in the year 2010, a gay man could be lured to a house, then beaten, tortured, and sodomized by a gang that had already assaulted two gay teens — one of whom was forced to participate in the second attack — as happened last week in the Bronx?
So aren't you glad to know that New York authorities have already declared the Bronx case an instance of "hate crime," thus exposing the accused to stronger penalties than they would face otherwise? And don't you hope that the ongoing investigation in the Clementi case leads New Jersey officials to the same conclusion?
I'm not, and I don't.
Then again, I don't want anyone, anywhere ever to be charged with a "hate crime." If I could, I would wipe the entire category off all state and federal lawbooks, starting with the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009.
For any non-bigot, this law is awkward to protest. It is named respectively for the gay college student who was tortured, tied to a fence, and left to die by two deranged homophobes near Laramie, Wyo., and the African-American hitchhiker who was picked up by white supremacists, chained to their truck, and dragged to his death. It expands the categories that are protected under previous hate-crimes legislation (basically race, religion, national origin) to include real or perceived gender, gender identity, sexual orientation, and disability. It also removes the requirement that victims be attempting to engage in certain federally protected activities, such as voting, at the time of the crime. It's the kind of law that people like me — who generally support the enhancement of minority rights in America, including such gay rights as marriage and open military service — are supposed to greet with tears of joy. But even as I mourn the likes of Shepard, Byrd, and Clementi, I detest the legislative wool that has been spun in their names.
Opponents of hate-crimes laws often start and finish with the practical argument that such laws are simply unnecessary. True enough, the murderers of Matthew Shepard are serving life in prison, and if not for the amazing mercy of Shepard's parents, might well have received the death penalty. As for the killers of Byrd, two received death sentences and the third a life sentence under plain old laws that forbid murdering anyone.
My own objection, though, is moral. I believe that the law should value one human life as much as any other human life, and I am appalled to find myself increasingly alone in this.
Don't I live in the real world? Don't I know that every day, innocent people suffer harassment, discrimination, and violence for no reason other than their membership in one of these groups? Of course I do. I would, however, challenge anyone to name an instance in which equal enforcement of general laws, based on the premise that those laws apply to everyone, would not address this problem at least as effectively as any of the "hate"-specific provisions. And it would achieve this without treating certain minorities as an altogether separate species of human – an approach that is as wrongheaded when it comes from kindness as when it comes from cruelty.
What's more, to build a legal framework on the fact that some crimes are motivated by prejudice is to ignore the much more pervasive reality. Unspeakable acts are committed all the time for horrendous but apparently bias-free reasons, and also for no reason at all. Consider the Chesire, Conn., home invasion for which one defendant was recently found guilty. One night in 2007, two men broke into the house of Dr. William Petit and beat him senseless, before raping and murdering his wife and two daughters, around whose beds they poured gasoline and then ignited it. Apparently, hate, as enshrined in federal law, played no role in this atrocity. But honestly, could that designation possibly have made it any worse? How about the 91-year-old Bronx woman who was bound to a chair, had wine forced down her throat, and was suffocated with a plastic bag? Must the hate-crimes definition expand to include the extremely elderly — or the victim be ruled to have been disabled — before the book can be thrown at her tormentors?
Most hate-crimes advocacy rests on the concept of disproportionate harm: the idea that when individuals of certain groups are violated, everyone else in those groups is intimidated. This is obvious — but it's not as if the singled-out communities are the only ones to feel the ripple effects of crime. On the contrary, entire inner-city neighborhoods live in fear of encountering the same violence as all too many people they know, just by walking down the street.
Then there is the whole goal of deterrence: Perhaps if those who tend to be targeted get to wear an additional layer of legislative protection, they might cease to be targeted so much. By that logic, though, there should definitely be a separate class of crime protecting the subsequent partners of women who have escaped brutally violent previous relationships, and indeed, for anyone who has helped such women move on. That's a murder-magnet of a group if ever there was one. But wouldn't such a distinction denigrate the folks who were just going about their business at Columbine, Virginia Tech, or Fort Hood? If nothing else, the shooters in these massacres were equal-opportunity killers. Does that shave a single point off their depravity?
In hate crimes, as with all crimes, most of the action falls far short of murder. But here, too, the victim-vetting seems more problem than solution. Fifteen-year-old Phoebe Prince, who famously hanged herself last January, was white, heterosexual, and able-bodied. Nonetheless, prosecutors contend that she was bullied to death. That case, like Clementi's, raises the compelling issue of whether it is possible to establish that a person can be emotionally attacked to the point where the attackers are legally responsible for that person's self-inflicted death. But it is all too easy to establish that if so, potential victims come in all kinds of packages into which hate crimes don't fit.
Revise, ever so slightly, the Rutgers scenario. Imagine it was not a shy, apparently gay freshman who had drawn a roommate with a webcam and a sick sense of humor. Imagine it was a self-loathing bulimic who was caught on camera — and then on the Internet — secretly (she thought) binge eating. Or a young man having relations with a young woman who happens to come from a very conservative religious background, and once exposed, would rather die than shame the family. Is it so hard to envision such kids feeling the same anguish that Clementi did, albeit from a different root? If so, would the catalyst be less cruel, the act of self-murder less final, the devastation of loved ones less complete?
The answer, clearly, is "no." And no matter how entrenched the concept of hate crimes has become, it is wrong for the law to raise the question.