Thursday, November 26, 2009

Mens Rea: Hate Crimes

A remarkable number of Republicans have voted against the bill to expand the federal definition of hate crimes to include those committed because of gender, sexual orientation, gender identity, or disability. Is this because they viscerally oppose anything the Democrats propose, or is there a legitimate policy difference?

In the House, the Republicans claimed that the legislation would create a new category of “thought crime” that would require problematic inquiries into the motivation of the attacker. Their leader, John Boehner of Ohio, said it this way: “The idea that we’re going to pass a law that's going to add further charges to someone based on what they may have been thinking, I think is wrong.”

Rep. Boehner’s statement borders on the nonsensical. Responding to violent crime is, and always has been, about weighing an offender’s motivation and mental state (mens rea). To be sure, this is not always easy. The crooked timber of humanity (as Kant put it) comes in many forms, and even psychologists don’t have all the answers. But making distinctions based on a factual inquiry into the offender’s mens rea is what our criminal justice system is set up to do.

Though I’m not privy to the deliberations of the Republican caucus, their use of the rhetorical term “thought crime” seems like a shameless and cynical attempt to invoke Orwell’s 1984. This isn’t about jackbooted agents of a faceless state arresting someone because brain scans have shown disloyalty to Big Brother. It’s about people who do things like torture and murder a young man just because that young man happens to be gay, as Matthew Shepherd was in Wyoming in 1998. Or people who tie a black man to a truck and drag him to death because he’s black, as James Byrd Jr. was in Texas that same year.

Hate crimes like these strike against human dignity in a way that other offenses do not. Instead of obsessing about Orwell, Republicans and others opposed to the expanded hate crimes bill would do well to consider the philosophy of Kant — specifically, the importance of showing respect for each person and the immutable characteristics that form identity.

The crooked timber of humanity will never be completely straightened in this life. But failing to recognize hate crimes for what they are leaves a rottenness at the core of society that threatens to infect the whole forest.

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