After all, the only thing that differentiates the two cases is the intent of the perpetrator. And we can't measure intent, can we? Or can we?
Intent is part of the law and action of a crime. I specifically added the self-defense part to my first post to illustrate that. Belief of the person is only important as view from the action and circumstances of the crime (eg. did this person knife the person because they were being attacked). It is generically applied to all people regardless of their own attributes (race, creed, etc.). The law is blind and we are all equal. Intent in the commission of a crime is a separate idea and has nothing to do with "hate crimes".
To quote David Neiwert yet again:
Lawrence points to the distinction between bias crimes and their
underlying parallel crimes, which in effect create two tiers of
evidence for any kind of hate-crime prosecution to succeed. At both
tiers, the criminal's mens rea is an essential component. In the first
tier of a crime -- say, an assault -- the intent to commit the crime
still must be established; at the second tier, both the first-level
intent and the second-tier bias motivation must be proven. For a
bias-crime prosecution to succeed, it must establish both tiers of
mens rea.
Thus someone who merely partakes of hate speech, with no intent to
intimidate, is guiltless of a hate crime, because the first tier of
motivation is absent, and thus no free-speech rights have been
infringed upon. But because menacing and intimidation, all of which in
fact take the form of words alone, are punishable crimes in every
state, anyone using hate speech to terrorize his neighbors has
partaken of a bias crime.
Consider, for instance, the example of cross burning. A white
supremacist who burns a cross at a private rally is undoubtedly
voicing a kind of racial hate, but there has been no attempt to
intimidate or menace anyone, and no crime has been committed.
Likewise, someone who, say, dumped garbage on a black neighbor's lawn
would only be guilty of harassment or intimidation, not a bias crime
(unless, of course, evidence existed he had done so because of the
neighbor's race). But someone who burns a cross on his neighbor's lawn
has clearly committed a hate crime, because he has both the intent to
intimidate and racial bias as his motivation.
In this sense, hate-crime laws avoid running afoul of the First
Amendment in the same fashion as any other of the myriad
sentence-enhancement laws, including anti-terrorism statutes, because
they all reflect the differences in mens rea among acts that are
already established crimes. More to the point, there are limits to
free-speech rights; threats and intimidation are already illegal, as
are incitement to riot, incitement to murder, and other kinds of
speech.
And indeed the Supreme Court recently has moved in this direction in
upholding the constitutionality of hate-crime laws. The recent
cross-burning case, Virginia v. Black, produced a March 2003 ruling
(authored by Sandra Day O'Connor) that followed this logic closely.
The state of Virginia, the Court said, was well within its rights to
outlaw cross-burnings meant to intimidate:
The protections the First Amendment affords speech and expressive
conduct are not absolute. This Court has long recognized that the
government may regulate certain categories of expression consistent
with the Constitution. … For example, the First Amendment permits a
State to ban "true threats," … which encompass those statements
where the speaker means to communicate a serious expression of an
intent to commit an act of unlawful violence to a particular
individual or group of individuals. … The speaker need not actually
intend to carry out the threat. Rather, a prohibition on true
threats protects individuals from the fear of violence and the
disruption that fear engenders, as well as from the possibility
that the threatened violence will occur. … Intimidation in the
constitutionally proscribable sense of the word is a type of true
threat, where a speaker directs a threat to a person or group of
persons with the intent of placing the victim in fear of bodily
harm or death."But someone who burns a cross on his neighbor's lawn has clearly committed a hate crime"
No, they are guilty of harassment, property damage, and possibly assault depending on the legal definition in the jurisdiction.
The last paragraph does not support "hate crimes" legislation, it points out what a threat is.
Well, according to the hate crime legislation Neiwert is referring to, they are guilty of commiting a hate crime.
Whether they should be guilty of commiting a hate crime (depending on your opinion of the worth of hate crime legislation) or whether that hate crime legislation itself should exist is debatable, and you can argue one way or the other. But it is clear that a violation of the existing hate crime legislation has occurred in the example given by Neiwert above, for the reasons he gives.
As for your implication that the underlying crimes of harrassment, property damager, and assault are enough, I refer you to the second half of an earlier Niewert quote I posted above.[1]
"The last paragraph does not support "hate crimes" legislation, it points out what a threat is."
A threat to whom exactly? To people who single out others based on their race, color, creed, sexual orientation, ethnicity, national origin, religion or gender and commit harrassment, property damage, and assault "with the intent of placing the victim in fear of bodily harm or death"?
I sure hope they feel threatened. Because they need to realize that our society will not tolerate these sorts of actions, just as society has less tolerance for deliberate, premeditated killing than it does for unintentional, accidental killing.
Intent does matter, and that's what hate crime legislation is a recognition of.
Hate crime legislation does not protect people based on "the classification of the victim". It protects everyone equally.
Maybe you missed it, but David Neiwert pointed this out in one of the quotes I pasted above.[1]
None of these laws specify the race or ethnicity or religion
of the victims -- rather, they are focused solely on the
motivations of the perpetrator. A person need not be actually
gay to be the victim of a gay-bashing hate crime; he need only
have been perceived as gay by someone who specifically set out
to assault homosexuals. This is only logical, since the
terroristic motivation of the assault is present in either
case.
Moreover, the laws protect everyone equally. Majority whites
are victims of bias crimes too, and every year there are over
a thousand prosecutions for such cases. (Indeed, the
definitive Supreme Court case, Wisconsin v. Mitchell, involved
a black man accused of fomenting a hate crime against a couple
of white teens.) Check the FBI statistics for yourself.
Nope, actions are what we can measure and put on the wall. Everything else is opinion.