FIRST GENDER-BASED HATE CRIME CONVICTION
maule at LAW.VILLANOVA.EDU
Thu Mar 9 12:53:43 PST 2000
>>> Leslie Goldstein <lesl at UDEL.EDU> 03/09/00 07:30AM >>> writes
Replying to Jim Maule's latest post:
Do you really not see the significance between a group-based motive for a crime, which I would suggest is pretty darn rare , and individual antagonism or individual circumstances as the motive? (or are you just being argumentative?) Robbing rich people is not robbing them becasue they are rich but because they happen to be carrying money--a non-rich person who just left an ATM machine is a better target than a rich guy carrying just credit cards. Not only do hate crimes present the potential to intimidate (and thereby cut down on the liberty of) a sizable number of group members, but also, especially in an ethnic and racial context, they present the additional disruptive potential of gang war, group based retaliation, etc. This is much less likely when crimes are matters of individual antagonism or particular circumstances opportunism.
I think we're on different channels. I don't dispute that certain speech can foster violence toward members of a typed group, or that certain speech can make a person intimidated or can make a group of persons feel threatened.
What I am saying is that if there is a crime of "societal disruptive speech" (of which "hate speech" would be a category) it must stand on its own and not be swept into the crime of assault, the crime of murder, the crime of theft, the crime of embezzlement, etc. That is, it ought not be presumed from another crime (though the other crime would be a FACTOR in proving its existence). It ought not be limited to instances where there is another crime. It ought to stand on its own, namely, the speech is a crime REGARDLESS of the existence of another crime. (In the original fact situation, suppose the defendant did not physically assault the victim. IT ought make no difference to the commission of the speech crime, OTHER THAN to serve as a FACTOR in evaluating the mens rea of the defendant. Else, the "hate speech" crime ends up protecting only those who are also victims of another crime. Similarly, it would require the modification of all sorts of crimes, because assault is not the only crime that might arise from a "hatred" situation).
If two or more crimes arise from the same event, that can affect sentencing, and it ought make no difference whether one of those crimes is criminalized speech. The problem I have with the California statute is that it morphs the crime of assault into two types of assault based on the existence of independently criminalized speech. That raises a double jeopardy issue. Suppose the defendant is acquitted of "hate speech assault" felony. Can the state now independently seek prosecution for the crime of "hate speech" arising from the same event? (The question is not rhetorical... I'm asking, for if the answer is "yes" that would add to the troubling reaction I have to the California approach to dealing with the problem).
I hope that clarifies my previous post (which was intended as a specific reaction to a different aspect of the issue as raised by the post to which it responded).
Professor of Law
Villanova University School of Law
Villanova, PA 19085
maule at law.villanova.edu
"Vision is the ability to see what is possible before it is obvious."
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