Abstract
There is a divide within political and legal theory concerning the justification of hate-crime legislation in liberal states. Opponents of Hate-Crime Legislation have recently argued that enhanced punishment for hate-motivated crimes cannot be justified within political liberal states. More specifically, Heidi Hurd argues that criminal sanction which target character dispositions unfairly target individuals for characteristics not readily under their control. She further argues that a ‘character’ based approach in criminal law is necessarily illiberal and violates the state’s commitment to political neutrality. In the current paper, I attempt to show the difficulties and absurdity that follows from Hurd’s characterization of hate- rimes. I aim to show that punishment for undesirable character traits is consistent with western conceptions of criminal law. Upon doing so, I then go on to construct a positive argument for the justifiability of punishing for character traits as well as for the enhanced punishment associated with hate-motivated crimes.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
R. v. Sandouga (2002 Alberta Court of Appeal, 196), hereafter Sandouga.
This position has been adopted by Fredrick Lawrence, for more on this see Lawrence (1999).
For an argument of this kind, see Wellman (2006).
This has been argued for by Altman (2001).
One of the strongest advocates of this position is Susan Gellman; see Gellman (1992).
Hurd (2001).
For a complete list of states which include/exclude sexual orientation and gender identity, see Human Rights Watch, http://www.hrc.org/documents/hate_crime_laws.pdf (April 2010).
The description that follows is not meant to be a full account of hate crimes. My intention is to provide a brief explanation of how hate crimes are generally understood. For more on direct criticisms regarding the characterization of hate crimes, see Jacobs and Potter (1998).
One way of trying to answer the question of whether a crime was motivated by bias is to ask the “but for” question, that is, we can ask the question “but for the ethnicity of the victim, would this crime have been committed?” If one answers this question in the affirmative then we have reason to believe that the act was not motivated by bias. For more on this see Lawrence (1999).
Blake (2001). This helps to effectively rule out acts that might be committed against individuals for trivial characteristics. For example, an individual who is attacked for having brown coloured eyes, in a world where brown coloured eyes are not deemed as socially significant for identity, will face difficulty in characterizing the act as a hate crime. The identity feature must be thought central to the victim’s identity.
For example in R v Palmer (Supreme Court of Victoria, Court of Appeal, Wineke ACJ, Charles and Callaway JJA, 13 September 1996) the court had found the defendant guilty of a hate motivated crime despite mistakenly thinking the victim belonged to the Samoan tribe. The offence was nonetheless found to be motivated by bias or prejudice against an identifiable Aboriginal group.
While the initial motivation of a hate crime need not be aimed at any particular individual within the targeted community, the choice of victim may well make a difference. For example, some one may specifically target a prominent leading figure from the community in order to send a stronger message or attempt to harm the community more than had he selected another relatively unknown member.
Report can be found online at http://www.humanrightsfirst.org/discrimination/index.aspx# (January 2010).
Canadian Hate Crime Statistics. This statistic is collected from the Hate Crime Supplemental Survey and the Uniform Crime Reporting Survey by the Canadian Centre for Justice Statistics (CCJS). For further comparison between statistics reported in 2006 and earlier years, see Canadian Hate Crime Statistics.
Britain has recently reported a sharp increase in hate crimes against gay/lesbian members. It is said that gay and lesbian group members face daily incidents of verbal and physical violence yet are less likely to report such incidents to police. For more on this, see Johnson (2009).
The Attorney-General of Australia has recently (July 2009) sought advice from the Sentencing Advisory Council as to whether their current Sentencing Act 1991 (the ‘Victoria Act’) could be amended so as to include a section dealing with offences motivated by hate or prejudice against particular groups. For more on this, see http://www.sentencingcouncil.vic.gov.au (January 2010).
Canadian Criminal Code, Part XXII, Section 718.2, subsection a(i).
To symbolize the difference between regular crimes and hate crimes, it may be best to simplify Hurd’s stated difference in the following way: In regular crimes we punish for [actus reus + mens rea]; in hate crimes [actus reus + mens rea] + [standing character traits]. Hurd’s claim is that the enhanced punishment for hate motivated crimes provides an increased punishment for the standing character traits and not for either the actus reus or mens rea.
By ‘indirectly and imperfectly’ Hurd entails that the individual cannot change their character by ‘act of will alone’ (directly) or with ‘perfect success’ (perfectly). Rather, individual can with mixed success (imperfectly) and through, say, therapy or character-building experiences (indirectly) have an influence on their character traits.
I will leave aside, for purposes of this paper, the question of whether racist doctrines are unreasonable. Presumably they are, yet I do not want to build my response to Hurd on grounds of Rawls’ political project. For more on this, see Rawls (1999).
In keeping consistent with Hurd’s targeted liberals, I discuss Rawls’s specific definition of ‘conceptions of the good’ which is generally thought to have features such as being revisable, internally consistent and coherent, and as relating to beliefs about what one considers to be valuable in life and worthy of pursuit.
Susan Wolf has a nice entry on the importance of a sane deep self view for the structure of responsibility. See Wolf (1987).
Volitional control has been a subject of recent debate. There are critics who question whether volitional control is a precondition for responsibility. For a general outline of the debate see Smith (2008).
Duff gives a short list of capacities, citing “the relevant empirical aspects of his action and its circumstances, and of foreseeing its consequences; he must also have the kind of “instrumental rationality” which enables him to determine which actions will serve whatever ends he has.” See Duff (1993, p. 364).
I should note that even though actions are not the only kind of evidence needed to show character, actions are certainly still good evidence it would seem. For practical reasons (e.g. we cannot peer into people’s minds or souls), it makes sense for the criminal law to pay special attention to action even though it is not the only source.
For a detailed account of the basics and complexity of exculpatory defenses, see Morse (1998).
For more on this see, Manitoba Department of Justice [Canada], Guideline; Policy Directive: ‘Hate Motivated Crime’ (2008).
For example, Human Rights First organization developed a ten-point plan to help governments strengthen their response to hate crimes. The top three points include: (1) acknowledge and condemn violent hate crimes whenever they occur, (2) enact laws that expressly addresses hate crimes, and (3) strengthen enforcement and prosecute offenders. For more, see http://www.humanrightsfirst.org/discrimination/pages.aspx?id=152 (January 2010).
References
Altman, A. (2001). The democratic legitimacy of bias crime laws: Public reason and the political process. Law and Philosophy, 20(2), 141–173.
Australian Sentencing Board. Available at http://dsp-psd.pwgsc.gc.ca/Collection-R/Statcan/85-551-XIE/0009985-551-XIE.pdf.
Bayles, M. (1982). Character, purpose, and criminal responsibility. Law and Philosophy, 1, 1–40.
Blake, M. (2001). Geeks and monsters: Bias crimes and social identity. Law and Philosophy, 20(2), 121–140.
Canadian Criminal Code. Available at http://laws.justice.gc.ca/en/C-46/.
Court-Case Reference: R v. Sandouga (2002 Alberta Court of Appeal, 196).
Canadian Hate Crime Statistics (2010). Available at http://dsp-psd.pwgsc.gc.ca/Collection-R/Statcan/85-551-XIE/0009985-551-XIE.pdf.
Duff, A. (1993). Choice, character, and criminal liability. Law and Philosophy, 12, 345–383.
Duff, A. (1998). Law, language, and community: Some preconditions of criminal liability. Oxford Journal of Legal Studies, 18, 189–206.
Gardner, J. (1998). The gist of excuses. Buffalo Criminal Law Review, 1(575), 575–598.
Gellman, S. (1992). Brother, you can’t go to jail for what you’re thinking. Criminal Justice Ethics, 11(2), 24–29.
Human Rights Watch (2010). Available at http://www.hrc.org/documents/hate_crime_laws.pdf (April 2010).
Hurd, H. (2001). Why liberals should hate ‘hate crime legislation. Law and Philosophy, 20(2), 215–232.
Jacobs, J., & Potter, K. (1998). Hate crimes: Criminal law and identity politics. New York: Oxford University Press.
Johnson, A. (2009). Homophobia: The forgotten hate crime. The Independent Newspaper available at http://www.independent.co.uk/news/uk/crime/homophobia-the-forgotten-hate-crime-1651326.html (accessed 20 Jan 2010).
Lawrence, F. (1999). Punishing hate. Cambridge: Harvard University Press.
Manitoba Department of Justice [Canada] (2008). Guideline; Policy directive: Hate motivated crime.
Morse, S. (1998). Excusing and the new excuse defenses: A legal and conceptual review. Crime and Justice, 23, 329–406.
Pillsbury, S. (1992). The meaning of deserved punishment: An essay on choice, character, and responsibility. Indiana Law Journal, 67, 719–752.
Rawls, J. (1999). The idea of public reason revisited. In The law of peoples (pp. 131–180). Cambridge: Harvard University Press.
Rawls, J. (2001). Justice as fairness: A restatement. In E. Kelly (Ed.), Part 1: Fundamental Ideas (pp. 18–24). London: The Belknap Press of Harvard University Press.
Sher, G. (2001). Blame for traits. Nous, 35(1), 146–161.
Sher, G. (2002). Blameworthy action and character. Philosophy and Phenomenological Research, 64(2), 181–192.
Smith, A. (2008). Control, responsibility, and moral assessment. Philosophical Studies, 138, 367–392.
Tadros, V. (2005). Criminal responsibility. New York: Oxford University Press.
Wellman, C. (2006). A defense of stiffer penalties for hate crimes. Hypatia, 21(2), 62–80.
Wolf, S. (1987). Sanity and the metaphysics of responsibility. In F. Schoeman (Ed.), Responsibility, character, and the emotions: New essays in moral psychology (pp. 46–62). New York: Cambridge University Press.
Acknowledgments
I am grateful to Michael Giudice, Susan Dimock, Antony Duff, Nathan Brett, Nicole Vincent, Wilfrid Waluchow, Jessica Loughridge, Manhal Younes and the two anonymous referees at Criminal Law and Philosophy for all their helpful comments and criticisms on earlier drafts. Thanks also to the participants at the CS-IVR (Ottawa) 2009 and the international conference on responsibility at Delft University of Technology (Netherlands).
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Al-Hakim, M. Making Room for Hate Crime Legislation in Liberal Societies. Criminal Law, Philosophy 4, 341–358 (2010). https://doi.org/10.1007/s11572-010-9095-4
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11572-010-9095-4