12 July 2009

On Paglia On Hate Crimes

The debate, such as it is

Camille Paglia's latest assault on the senses (scroll down) stems from a reader's letter expressing the same old shopworn confusion about hate crimes: why do we not just punish people the same for the same net result? "If I am murdered, is that less heinous than a member of a protected class being murdered?" asks Steve Larson of Conejo Valley, California.

This question misses the entire point of hate crimes legislation by reducing the issue to "one dead black/gay/Muslim person > one dead white male." Hate crime legislation is not predicated solely on the identity of the victim, but on the motivation of the individual committing the crime: the victim must be targeted based upon a protected characteristic. Of course, the characteristics are all in fact race/gender/religion/sexual orientation neutral, but let's face it: people don't usually target white straight male Christians because of those particular characteristics, so the popular image of the law is that it protects African-Americans, Jews, gays, women to a greater degree and thus by implication lowers the relative value of everyone else.

The alternative image problem of hate crime legislation is the one Paglia addresses and embraces:
I have been on the record since the 1990s as strongly opposing hate crimes legislation. I think it is a totalitarian intrusion into citizens' thought processes. Government functionaries should not be ceded the dangerous authority to make decisions about motivation. They aren't novelists, psychologists or sibyls! Furthermore, there should be no special privileged class of protected groups in a democracy. A crime is a crime -- period.
Of course, crime is a crime – period. Murder is a crime. So is terrorism. If a person commits an act of terrorism that kills five people – plants a bomb at a shopping mall, say – and another kills his entire family in the confines of their home, also five people, are those equivalent crimes? Based on the raw loss of human life, you might say yes. Of course, terrorism is called terrorism for a reason: it's meant to instill fear in a targeted population, to extend far beyond the tangible consequences of the individual act and to disrupt society at large. The man who murders his family, on the other hand, though he may be a monster, is unlikely to have caused the same systemic shock as the terrorist. While each has taken the same number of lives, we instinctively feel that the terrorist is worthy of greater punishment, and by and large our laws presently reflect that judgment.

Terrorism is an instructive example, because hate criminals are basically terrorists. They target people based on a protected characteristic and then victimize them. The immediate victim suffers, but the broader audience for the act, intended or not, is all members of that protected group, and beyond that, society at large. When Emmett Till was beaten to death for addressing a white woman, it was an act of political violence reinforcing the deeply illegitimate regime of Jim Crow by demonstrating the impunity with which whites could victimize blacks. When Matthew Shepard was beaten and left to die, tied to a fence post, it was an act of political violence reinforcing heterosexual dominance by demonstrating the worthlessness of homosexuals.

I bring up Shepard because Mr. Larson and Ms. Paglia do. Curiously, Paglia, who considers inquiring into the motivations of Shepard's killers by the government "totalitarian," professes to give them the benefit of the doubt as to those same motives:
Although I am a supporter of the death penalty in extreme cases, I think there were ambiguities here: The aimless hooligans who beat Shepard and tied him to a fence perhaps didn't necessarily mean to kill him.
But "a crime is a crime -- period," right? Who cares if these "aimless hooligans...didn't necessarily mean to kill" Matthew Shepard – they did, didn't they? Yet Paglia believes, based on her perception of the observable indicia surrounding the case, that the killers – whom she reduces to "hooligans," as though they'd bashed in a couple of mailboxes instead of another human being – are worthy of some measure of clemency.

Hate crimes legislation is not thought policing. People are just as free to be bigots as they ever were, provided that they do not translate their poisonous beliefs into violent actions. By adopting hate crimes legislation, society recognizes this political violence for what it is – an attempt by private actors to demonstrate that the full rights and privileges of American citizenship do not apply to all Americans. Much like President Bush opined that terrorists "hate us for our freedom," hate criminals target their victims because they presume to be equal. When this fundamental equality is denied, it is only proper that a democratic society should demonstrate the legitimacy of its political order by raising the cost of that denial.

It's not entirely clear why Paglia considers such a system to be totalitarian. Hate criminals commit an underlying crime – they are not being punished solely for their motivations. What makes a hate crime a hate crime is still very much oriented around the result: the terror the act inspires in the target population. Obviously, motive goes to establishing that a hate crime has occurred, but inquiring about a defendant's motivation is hardly thought policing; it is just plain old policing. Indeed, motive is, in large part, what separates a broken window from being vandalism or an attempted burglary. Surely Paglia would not suggest that we just have a "broken window" crime and leave it at that.

Perhaps it's the notion that hate crimes legislation suggests a correct, government-endorsed alternative political position. This train, however, has left the station. The federal government, to varying degrees over the past half-century, has been committed to full political equality for most minority groups (not counting the odious omission of gays). As the near-century of segregation following the abolition of slavery demonstrated, the equality guaranteed by the Thirteen, Fourteenth, and Fifteenth Amendments to the Constitution is not self-enforcing; robust governmental action was, and remains, at least insofar as Congress is concerned, required to make those rights a reality. People have the right to hold and express contrary opinions, but they do not have the right to hold them unopposed, even by the federal government. Thus Paglia's contrariness does not even hold up as a full-throated libertarian defense of the First Amendment, which is in no way impinged by hate crimes legislation unless you think it your constitutional prerogative to brutalize categories of people you don't like.

A crime is a crime – period. And our response to crime should reflect the true nature of the crime, not merely a mechanical reaction to quantity. To assert that hate crime legislation is unnecessary because, as the trope goes, "all crime is hate" is a profound misreading of what happens every time someone is victimized because of their race, religion, nationality, gender, or sexual orientation. To ignore that reality because we aspire to live in a "colorblind" society – indeed, if something so simplistic is what we aspire to – is to deny the direct challenge that hate criminals pose to our constitutional system. It is the epitome of wishful thinking.

* * * * *

It's not salient to my main point, so I didn't address it above, but special opprobrium should be reserved for Paglia's treatment of Matthew Shepard, which follows here:
Despite my abhorrence of the crime, I was a dissenter about the sanctification of Shepard, a charming young man with a troubled family background who had faced many difficulties in life because of his frailty and lack of conventional masculinity.

Only a week before, Shepard had expressed fears about being killed. Given that apprehension, it is still inexplicable -- if the case is examined only through a political lens -- why Shepard would leave a public place in the company of such blatant thugs. A hate crimes law that claims to be able to penetrate the mind of the perpetrator should be equally open to questions about the victim. If, out of fairness or pity, one avenue of inquiry is shut down, then the other must be too.

I'm not certain how to read this except to say that Paglia is open to the possibility that Shepard might have gotten what was coming to him. After all, I fail to see what "questions about the victim" might alter the moral calculus of what was done to him. Yes, it's possible that Shepard, a marginalized 21 year old kid, might have exercised poor judgment the night he was killed, if that's what Paglia is implying (and if it's not, than she ought to be more forthright about what she is implying). But implicating Shepard in his own murder is an act of moral bankruptcy that is emblematic of Paglia's misplaced intellectual vanity. Only she can see the truth, even when the truth is just her own opinion marinated in an unhealthy measure of self-regard. After all darling, don't you know she was a "dissenter" back when they were sanctifying that "charming young man with a troubled family background?"