Legal Affairs May 2007

'Hate Crimes' and Double Standards

The House-passed hate crimes bill is an example of feel-good legislation likely to do more harm than good.

Consider three criminal cases.

No. 1: Christopher Newsom and his girlfriend, Channon Christian, both students at the University of Tennessee in Knoxville, were carjacked while on a dinner date in January, repeatedly raped (both of them), tortured, and killed. His burned body was found near a railroad track. Hers was stuffed into a trash can. Five suspects have been charged. The crimes were interracial.

No. 2: Three white Duke lacrosse players were accused in March 2006 of beating, kicking, choking, and gang-raping an African-American stripper, while pelting her with racial epithets, during a team party.

No. 3: Sam Hays bumped against Mike Martin in a crowded bar, spilling beer on Martin's "gay pride" sweatshirt. Martin yelled, "You stupid bastard, I should kick your ass." Hays muttered, "You damned queer" and threw a punch, bloodying Martin's lip.

Now the quiz.

Which of these would qualify as a federal case under a House-passed bill—widely acclaimed by editorial writers, liberal interest groups, law enforcement officials, and many others—expanding federal jurisdiction to prosecute "hate crimes"?

Bonus question: Why have the interracial rape-torture-murders in Knoxville been completely ignored by the same national media that clamor for more laws to stop hate crimes—the same media that erupted in a guilt-presuming feeding frenzy for months over the far less serious Duke lacrosse charges, which were full of glaring holes from the start and turned out to be fraudulent?

The answers.

The interracial Knoxville rape-murders would probably not qualify as hate crimes. The reason is that although the murderers were obviously full of hate, it cannot be proven that they hated their victims because of race. (Or so say police.)

Both the Duke lacrosse case and the (fictional) barroom scuffle, on the other hand, would probably be federally prosecutable under the bill that the House passed on May 3 by 237-180. This is because the angry words attributed to the accused could prove racist and homophobic motivations, respectively.

Do such distinctions make any sense? Not much, in my view.

The proposed Local Law Enforcement Hate Crimes Prevention Act would for the first time make it a federal crime to "willfully cause bodily injury" because of the victim's "actual or perceived" sexual orientation, gender identity, gender, or disability. The bill would also expand federal jurisdiction over crimes motivated by race, color, national origin, or religion.

Sounds nice. But the pending bill—like most efforts to impose special penalties for bias-motivated crimes—strikes me as feel-good legislation likely to do more harm than good. The bill reaches only conduct that is already criminal under state law and thus serves no very important purpose; such proliferation of unnecessary new federal criminal laws diverts scarce resources from core federal functions such as fighting jihadist terrorism; and hate crime laws may even aggravate the biases that they are designed to counter by spreading the poison of identity politics. In addition, nothing in the Constitution empowers the federal government to prosecute many of the crimes that the bill is designed to cover.

As for the bonus question: The reason that the national media have ignored the Knoxville case is that the defendants are black and the victims were white. The media would also be uninterested if both the victims and the defendants were black. But had the victims been black and the accused white, the media would have erupted into the same politically correct sensationalism that characterized the Duke case. And many would have cited the case as proof that we need more hate crime laws.

The broader pattern is that the media, and many of the interest groups and academics who drive media coverage, habitually hype white-on-black crimes—and also gay-bashing violence—in keeping with their politically correct myth that straight white males are always victimizing racial minorities, women, and gays.

They also do their best to divert attention from horrible crimes involving African-American and gay defendants, and from the fact that "African-Americans—and particularly young black men—commit a dramatically disproportionate share of street crime in the United States," as Harvard law professor Randall Kennedy wrote in a 1999 New Republic article.

Presented by

Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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