by Abdul-Hakim Shabazz
(I originally wrote this last year for the Indianapolis Star in the wake of events in Charlottesville, however, in the wake of what seems pretty clear to be religiously motivated vandalism in Carmel, it’s probably time to dust it off and republish it.)
I have to admit, I am torn on the issue of hate and bias crimes. Whether I am hit in the head with a bat by a white person who calls me the n-word or a fellow black person who does the same thing, I still win a free trip to the emergency room. With that said, in the wake of what we’ve seen these past few days in Charlottesville, I have decided that maybe a little re-evaluation of my position is in order. After all, the last I checked, Indiana was only one of five states without a hate or bias crime law. And that can’t be good for Indiana’s image, especially since the Vice-President is from here. The challenge for me has always been not to want to criminalize thought. And in America, you have a God-given right to be a complete idiot, and we don’t put you behind bars unless you act out on that idiocy.
So after some careful thought, here’s what I’ve come up with. I can support “hate/bias” crimes legislation protecting not only race, ethnicity, sex, age, gender, and disability, but also sexual orientation, gender identity, and religion. I don’t think anyone who is attacked because they are or are perceived to be a member of the LGBT community deserves any more or less protection than someone who is Christian, Jewish, Muslim or worships the Flying Spaghetti Monster.
Secondly, because I don’t want to criminalize thought, the hate or bias element must go to intent. In other words, to prove a hate crime, the burden is on the prosecution to show that the defendant either knew or believed the individual they were attacking or threatening was a member of that protected class and that was one of the underlying reasons for the assault. I say this because when we met in 1987, did not like or trust each other, it had nothing to do with race, but ironically because we were too cut from the same cloth.
Third, the hate or bias crime is not treated as a separate offense, but as an aggravating factor when it comes to sentencing. In other words, if a defendant is convicted of hitting someone with a bat because they are black and Catholic, they would have to be convicted of the underlying assault and battery charge and then the fact they attacked the other person because of race and religion can be considered aggravating factors when it comes time for sentencing. We already have enhanced penalties based on things like the age of the victim, whether a weapon was used, whether the injury occurred in the commission of another crime, i.e., robbery.
And while we are on the subject, it couldn’t hurt to have law enforcement to categorize these crimes as part of their data gathering. One of the significant problems with hate and bias crimes is a lack of reporting. According to the FBI, approximately 350 hate or bias crimes were committed in Indiana between 2008 and 2014. Many experts believed that number would be higher if there were actually some kind of mandatory reporting mechanism.
I think will go a long way to satisfy those who are worried that we are criminalizing speech and thought. There must have been an act with the intent to do harm to another individual, and that intent must have been based on one of those factors that I mentioned above. And if proven, if the intention to do harm did involve race, religion, sexual orientation, etc. then that can be taken into account as an aggravating factor, and the sentence can be enhanced if the defendant is found guilty.
I’ve never believed in hating someone unless you really get to know them because that provides you with a substantive reason to not stand them. But if you’re going to attack and harm someone for no other reason than race, religion or sexual orientation then you need to be put behind bars for a while and away from civilized people.