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Q: What do you do when you and two of your buddies, in a drunken haze, beat another acquaintance to death over a period of 24 hours or so, wrap his naked body in a tarpaulin and hide it in his garage, then get turned in to the police ten days later by a third friend to whom you boasted of the murder (and to whom you emailed camera-phone photos, at work, during the process)?
[1] He wasn't.
no subject
The crime itself is an unlawful act of force against someone else's person or property. The crime itself is a malum in se act--bad in and of itself.
Before George Orwell's parents were a twinkle in his grandfathers' eyes, before England was more than an island of a few savages and a couple of Roman bathtubs, justice systems considered it important what a criminal thought about the crime or the victim before, during, and after the act.
The very term "mens rea" is Latin for "guilty mind" and comes down to us from Roman jurisprudence as a fundamental element of a crime. Breach of the law plus mens rea equals a crime. If there is no mens rea, there is no crime.
Crime has always included thought as a component. Always.
Orwell's "thoughtcrime" was distinct because it was only thought, divorced from action, that was the crime.
Non-Orwellian crime has also always included action as a component. Always. Even the crime with the smallest action--conspiracy--requires at least one overt act. "Conspiracy to commit [blah]"--the required elements of the crime are a plot to do a crime plus at least one overt act in furtherance of that plot. I'm not going to go into all the good reasons we have for conspiracy laws, because I'm not interested in having that debate.
Crime has always been mens rea plus an unlawful act.
Making certain elements of mens rea matter more than others also has a long history. Say Jen and Mary both kill their mothers in law. Jen despised her mother in law's habit of always serving liver meatloaf every time they visited. Mary stood to inherit a million bucks when her mother in law died. Jen hacked off her mother in law's head with a meat cleaver in a sudden rage at being faced with yet another helping of liver meatloaf. Mary planned to have it look like a burglar hacked of her mother in law's head with a meat cleaver, while Mary had a false alibi two states away.
Jen goes to jail for manslaughter, Mary goes to jail for murder one.
Thought has always been an intrinsic element of crime.
Whether Mary is or isn't more vicious is beside the point--most people think cold-blooded killers are more dangerous, so our laws treat premeditation more harshly.
It's reasonable to consider hatred of a whole group an aggravating factor just like premeditation. Someone who hates a whole group of people is always going to have more people they want to harm--and they've demonstrated by their actions the intent and willingness to harm.
Hate crime is not "Orwellian" because it does not criminalize hate divorced from an actual act in violation of the law.
Hate crime laws are, in concept, old hat--just more of the same. What they are is a refinement on the concept of mens rea as it relates to a criminal's likelihood to reoffend, and the impact of his crime on the larger community, and the likelihood that he's done other crummy stuff we never caught him at.
We don't explicitly punish people as criminals for what they might someday do, or how bad they hurt people's feelings, or what they maybe did that we can't prove.
We do, however, implicitly or explicitly, take all of these things into account when we sentence convicted criminals for their crimes. We always have, and in any sane world we always will.
Idealism is pretty, but it's too easy to turn it into a functional suicide pact for society if you try to implement it. We should have already learned that from communism, fascism, islamism, and christendom. Any totalitarian, utopian ideology, when implemented, proves its folly in piled bones.
State of mind is important in crime. It's how we sort out the good or sort of okay people who did something bad from the conscienceless psychopaths. The first group, we need to have mercy for. The latter group, we need to protect our society from. State of mind is all we have to sort them out from each other.
Appealing to Orwell in an attempt to divorce state of mind from the bad act is revisionist history. Crime has always been a marriage of the two.
no subject
My problem with "hate crimes" as a form of legislation and especially sentence enhancement is that in practice, what you said is totally ignored in favor of the publicity of the crime, and the "protected status" of the victims.
As demonstrated by a certain response on this thread.
State of mind is important in crime.
Very true. In practice, the concept of "hate crime" becomes a checklist of what "group" the (alleged) perpetrator is judged to be in versus the group of the victim, and how politically correct the crime, perp, and victim are, rather than what the actual crime is.
Crime has always been a marriage of the two.
Very true. So then why is a "hate crime" different?
no subject
no subject
no subject
If you're not privileged, then say so. But everything you're saying is what continually gets spouted out of the mouths of those who are privileged. Again.. looks like a duck? Check. Quacks like a duck? Check.
Probably not a fucking goose.
no subject
Because that makes my stance, my voice, my experience, my ethos greater?
Because if I'm "not privileged", I'm worth listening to? But if I am, I'm not?
I thought I was "twisting your words" to point out that you presumed to label me (and others)?
Now you ask me to label myself so you can evaluate my arguments?
No, I'll stand my arguments as arguments. The labels that apply to me don't matter.
To wit: This case has nothing to do with "hate crime".
Your insistence that it does runs totally counter and opposed to your declaration of what hate crimes are.
You get angry at me, when you don't agree with yourself, and I point this out.
You don't know me, much less "very well".
So you have to project reasons to dismiss me, because your arguments are all based upon what "class" you belong to, and who's deemed to be allowed to have a relevant viewpoint.
Well, that kind of is my point about "Hate Crime Legislation", after all. I don't, err, really, need to argue with you, as you're... making my point for me.
no subject
And yes, this is a hate crime. As soon as those psychopaths claimed 'gay panic' as a defence, it became one.
no subject
There is zero evidence in this case thus far that the victim was gay, as his murderers claim. They picked "gay panic" as a defense because it was the only thing they could think of that they thought likely to keep them out of jail. It's not a hate crime. It's an excuse. Nothing more. It's on the level of "The dog ate my homework." Only nastier.