Civil Union and Anti-Discrimination Laws Pass
I know we have a well-educated readership, and that most of you probably know by now that Governor Kulongoski signed two gay rights bills into effect yesterday, but I thought I’d provide an opportunity to discuss the measures. These bills are a great victory for the cause of individual liberty, and I heartily commend the Oregon legislature for finding the courage to extend basic rights to Oregon citizens. Volokh Conspiracy does bring up the question of our 2004 constitutional amendment which defines marriage as being between one man and one woman, raising the possibility of a legal challenge to the new law. Here’s hoping it fails, and makes Lon Mabon a little more depressed as a result.
“How are we to decide what counts as provocation then? … Wouldn
I’m a P+C commercial lines underwriter –
The cause of death is inconsequential to payment of claim unless the death wasn’t a random event. (e.g., if a gay lover kills the other, vs a murder motivated by a hated of homosexuals.)
/not quick
Chris: I’ve been too verbose today, so I’ll keep this quick. As to your last point: I guess I’d rather attack hate crimes as terrorism, regardless of viewpoint, than target viewpoints to get at terrorism. If you follow me. But then we’re begging the questions of what is terrorism and what is a hate crime?
To your first point: I was trying to avoid saying mens rea, but that’s the crucial element, rather than “intent.” It’s the mental state that accompanies the act. For murder, it is the intent to kill or the knowledge that death will happen. For manslaughter, it’s a reckless or extreme indifference to whether the person dies. For negligent homicide, it’s that you should have known the person would die.
I think what you’re doing is looking at “taking a life” as one crime, and then assigning manslaughter and murder different levels. More accurately, each level is its own crime with its own mental state.
The major point here is that these crimes are never distinguished by motive.
“I
Oh good lord, look what the gay started. I’ll begin generally, and then move on to specifics.
Re: the government enforcing societal norms. This isn’t what’s happening with anti-discrimination laws, and this certainly isn’t what happened with, say, racial desegregation. The government was specifically going against societal normals because various of their rights were being violated.
Re: hate crime and hate speech. Slippery slope arguments are never valid. It’s not an argument to say (in Falwell’s voice, if you please) “if we do this, terrible stuff might happen later!” We have a history of hate crimes legislation in this country, and people speak out, even in very liberal Eugene, against interracial marriage to this day, without legal ramifications (although not without being called a douchebag). I mean, hell, we might as well make sure that everything is legal, otherwise, some day, everything will be illegal!
olly: “The reason why someone kills someone else is legally relevant insofar as it can lessen the severity of the charge: self-defense, provocation, etc. (The reason the
Catching up a bit on the discussion:
I have no problem with motive playing a role in sentencing, or even being an element in some crimes, as with aggravated murder.
But it gets risky when a motive that’s no more than an opinion or a viewpoint, however reprehensible, becomes an element of a crime. We’d start to endanger freedom of thought and conscience. The Supreme Court has, er, roundly rejected claims that a crime is protected speech if you commit it for expressive purposes. You can’t burn up somebody’s car just to make some half-baked point about anarchy. It should go both ways. Crimes should neither be protected because they are viewpoint-motivated, nor be singled out as especially bad because they are viewpoint-motivated. Crimes and opinions need to be kept separate.
This is why allusions to existing crimes that have a motive element are unavailing.
Take, for instance, aggravated murder. In Oregon, it’s murder committed either (a) pursuant to a contract; (b) committed by an already-convicted murderer, (c) committed during a killing spree; (d) in association with intentional maiming or torture, or (e) upon a child.
Only one of these clearly concerns the defendant’s motive — (a), killing for money. And what distinguishes that motive from a hate crimes motive is that the motive itself is illegal. You can’t enter into a contract to kill; it’s a crime to do so.
Terrorism, likewise, can be conceived of as a crime where the motive itself is illegal, if it is the terrorist’s goal to “attack the fabric of society, and people’s perceptions of safety and community.” There are a host of ways to target that motivation as a crime in itself, without singling out a motivating opinion. And certainly, if you look at lynchings and the like, many crimes that are in part based on the perpetrator’s opinion are also motivated by a desire to disrupt society violently, and these can be seen as terrorism and criminalized for that reason.
Whereas it is no crime to hate a particular group of people. It’s stupid, and you should be censured by your fellow citizens, but it’s your right to do so.
So I think we need to be careful about not allowing an opinion or a viewpoint to become an element of certain crimes, such that if the prosecutor proves you hold those views and acted because of them, your act of assault, murder or terrorism is worse than another’s.
“The current system has a range of crimes, from attempted murder to manslaughter to murder, each complete with a handful of numbered subcategories which are based on the motivations and planning behind the crime. If you
“Disclaiming cultural influences doesn
It leaves us in the uncomfortable position of admitting that a problem doesn’t have a solution. Even taken for granted that there is 1) such a thing as society and 2) the government should deal in cultural norms leaves us in pretty difficult territory. How do you limit government’s purview in that arena sufficiently to prevent creeping statism? How do you shield people from persecution for ideas rather than harmful actions? Who decides which cultural norms the state enforces? How are those people chosen? What voting system…
And there’s not an easy way to decide or answer those questions, unfortunately, and none of that is very comforting to people who’re being shat on by some group of bigots. The unfortunate truth, though, is that it 1) isn’t the government’s job to comfort people and 2) even supposing that they should, it’s likely as not they’ll suck at it.
Tim: I agree wholeheartedly with your point on deterrence, which is where most arguments about law and order break down for me. I think the issue of culture/society/norms really is the issue here.If you want to jettison to a position that says “society doesn’t exist” or “government shouldn’t deal in cultural norms” you begin dealing in ideals, not reality. Disclaiming cultural influences doesn’t get rid of them, so if there are widely shared cultural norms regarding the social impact of certain crimes, a legislature should be able to act accordingly. Take your example of burning a cross: yes, it is “just” the crimes you list, but it is also an undeniable cultural symbol of intimidation. It evokes an era and mentality that took immense cultural/societal effort to overcome, and that progress shouldn’t just be taken for granted… it should be protected.
That having been said, your “slippery slope” argument is valid. Defining the line between a hate crime and protected speech isn’t easy, and I daresay that very few of our elected officials have the wisdom to draw it fairly and sensibly. I suppose this is a reason to ignore my arguments above, but try telling that to someone who has had a cross burnt in their yard. Ultimately though, deterrence is what makes me question this, and almost every law on the books. Is it even possible to deter a crime committed out of hate? Does deterrence itself work well enough to justify its position as a cornerstone of our legal system? My gut says no, but then where does that leave us?
“Also, murder
Well, Ted, that’s where we part ways because I really don’t believe there is such a thing as society. I agree that Chris is making some interesting points to think on. Let’s take the most obvious example short of assault: a cross burning.
Burning a cross in somebody’s yard is rightly viewed as a few different crimes that require no additional legislation.
1) Vandalism
2) Criminal trespassing
3) Arson (if it catches the house on fire)
4) Threatening bodily harm to the home’s occupants
Doing any of those things, for any reason, is a crime and I think that the fact you’re doing it to try to intimidate a whole group of people makes you an asshole, but doesn’t change the actual act. I have other thoughts on the deterrent effect of criminal punishment (I don’t think it really works that well*, and I think deterrence is kind of antithetical to the role of the judicial system) but that’s kind of for another time. I also don’t think it’s the government’s job to attempt to enforce what might be considered positive cultural norms (or any cultural norms for that matter).
As to “well, they’re trying to intimidate more than just the owners, they’re trying to send a message to the entire community” argument, well, I’ll grant that there’s something there intuitively, but I don’t think you can measure anything like that enough to make it a basis for assigning laws. Rather than try to address that issue through legal channels, it might be better to stigmatize folks who would do that kind of crap. My main concern is that it’s really not that far from “hate crime” to “hate speech” and then you run into real problems.
*Mainly because the justice system is not the only set of incentives at work in the life of a criminal and in many cases may not even be the strongest one.
I actually find Chris’s argument pretty damn compelling, but only because I have previously been firmly in Tim’s camp on this issue. I think aggravated murder is the one that really strikes a blow against the “motivation doesn’t matter” argument. Murder is murder, except when it is committed in order to have an effect beyond the victim and his/her family. Aggravated murder, “terrorism” and hate crimes are unique in the sense that they do not seek to simply end a life, but they attack the fabric of society, and peoples perceptions of safety and community. Because of the potential for disruption of the social order, particularly among groups who have a tenuous relationship with the larger society, it makes a certain amount of sense to give harsher sentences.
Take 9/11: If those were simply 3,000 counts of murder, nobody would be in Guantanamo, having the waterboard special right now. I’m not trying to justify the state taking unprecedented power into it’s hands so much as I’m trying to explain the difference between killing a person, and attacking a society, in terms of how the state/justice system perceives it.
Well, the gay panic defense is complete crap, I think we can all agree there. “Oh man, like, them there queers made me, like afraid because they might like infect me with teh gayx0rz!” shouldn’t work on juries, it’s a sad damn commentary that it has.
As for Attempted Murder specifically, it’s definitely a form of assault. And I think it’s perfectly legitimate to have gradations regarding the severity of the assault in question, maybe it’s bad nomenclature. Manslaughter, far as understand it, is more about negligence than intent to kill. It makes sense that there is such a thing as criminal negligence that’s differentiated from criminal intent: If you set out to kill somebody, I don’t think it much matters why you want to kill the guy, so much as whether you acted with intent to kill…but at the same time we don’t want to punish people for negligence to the same degree that we punish willful acts of malice. I think questions like did the defendant act with willful intent, did the defendant plan the attack, did the defendant conspire with others to commit this attack, etc, are perfectly legitimate questions of fact relevant to the type and severity of crime committed. I don’t think, “is the defendant a bigot?” has much to do with the facts of any case at hand, although it could probably be used to show motive, which is pretty useful from a prosecutor’s standpoint.
I’ve had this conversation with a few of the OC folks now, who’ve all had a similar argument about murder: namely, murder is murder, and whether I get killed by a jealous spouse or a bigot, the crime is the same.
The thing is, if you don’t think that the motivations behind a crime should be part of the legal system, that’s fine, but realize that you’re calling for a complete overhaul of the system as we know it. The current system has a range of crimes, from attempted murder to manslaughter to murder, each complete with a handful of numbered subcategories which are based on the motivations and planning behind the crime. If you’re taking motive out for killing gays, you have to take motive out everywhere. Get rid of attempted murder; no such thing. Get rid of manslaughter; either it was an accident or it was murder.
Surely if motivations are this entrenched in the system, gays and lesbians ought to get the same protections as other minority groups, as least pending the overhaul of the system to strip out motivation as a factor in criminal proceedings.
There is also a second issue, which is that the punishments for crimes are not only about punishment, but also in some sense deterrents. Without hate crimes laws, if you go out fag-bashing, it wouldn’t be unheard of to get charged for assault, claim “gay panic” or some nonsense, and get off with a slap on the wrist. Hate crimes/anti-discrimination laws help make it clear that society, despite finding all violence reprehensible, finds violence which exists solely to intimidate and harm an entire group of people far worse than the occasional fights which happen outside of bars.
The killing part, yeah, that’s a crime. Unarguably so. Should it matter more if the murderer is a bigoted asshole rather than just your run of the mill murderous sociopath? I don’t really think so. It’s not more of a murder because it was motivated by an irrational hatred of gays any more than serial killers are worse than random mass murderers because serial killers look for a certain profile of victim.
If the city comes after you, that’s the state, and total bullshit, and that was my point about enshrining bigotry into law: the ability of political and state actors to fuck you is way worse than the ability of private groups to do the same. If the mortgage company “loses” the paperwork, they’re likely violating the terms of the contract, especially considering you have a copy. Failure to uphold terms of a contract is a completely legitimate beef, but again, I don’t see how it’s worse if they do it because you’re gay or because they’re just plain fuckwitted assholes *cough* Pulte Mortgage *cough* It’s when private bigotry becomes encoded in law that we have a real problem, which was the point I was inelegantly making about Jim Crow.
The anti-gay parking tickets, well, you’re not alone. Meter maids issue more anti-human parking tickets than anything else. It’s likely they’re ticketing you because you have a car, brah.
T: Is it a rainbow in the dark?
T: Go for it. Hell, my Spanish teacher (also a Rennie’s regular) has taken to talking me “Mister D” as if I have a tab open with her or something (please ignore the potential innuendo).
Timothy: But what if it’s my house and the city comes by to toss me out cause I’m gay? What if the mortgage company suddenly “loses” my paperwork and says I have to get out? What if a meter reader starts giving me tickets even when I have money on the meter? What about the anti-gay parking tickets, I ask!?
Also, murder’s a crime. Targeting someone and killing them because they are gay is not.
If it’s their house, sure.
If they’re violating the terms of a contract, well, that’s another matter. But if the contract says, “No gay dudes because I, the landlord, am a total fuckface bigot asshat” well, it’s their property.
As to jobs, little trickier, but the same in principle.
Deprivation of life, well, murder’s already a crime.
Hurrah for the Constitution Party; keep reaching for that rainbow, fellas.
Also, from now on I will start calling you “brah” at Rennie’s, Chris. You put the idea in my mind, after all.
Well, that didn’t take long…
Maybe I’m missing something, Timothy, but what the hell does freedom of association have to do with discriminating against entire groups of people???
I’m not asking that it be required that all people everywhere be obligated to hang out with me chez Rennie and call be ‘brah’, and, like, totally talk about banging chicks. I’m asking that it be illegal for me to lose my job/apartment/life because someone sees me holding hands with another dude.
I am willing to deal with people being bigoted assholes in the social realm, but surely their bigotry shouldn’t be an actual, legal argument for putting me out of house & home/job/life. Innit?
For the record, Jim Crow was mostly a construction of the state (hence Jim Crow laws) and that kind of thing is also complete bullshit (see also, Apartheid and the like). In short, I’m against the state telling people with whom they may or may not associate and for what reasons, or with whom they must associate. Mandated integration is in many ways (at least from an outcomes standpoint) superior to mandated segregation, but neither is the legitimate purview of the government.
ChisD: They infringe upon the freedom of association.
I’m also against people being bigoted jackasses, but I don’t think it’s the state’s job to try to force them to not be so. I also think a lot of anti-discrimination laws, while well intentioned, go too far. You have a right to be a bigoted asshat, regardless of whether the rest of us like it or not.
I’m against anything that promotes monogamy and strangely feel sympathetic towards beastiality. Fat ewes need lovin too!
Wow, stunning discussion. Why are you against anti-discrimination laws, Timothy?
This story just warms the cockles my heart. Civil Unions for everyone.
I’m against anti-discrimination laws, but huzzah for same-sex unions. I mean, state marriage and the like should go the way of the dodo, but at least allowing people to engage in with whom they wish is more equitable.