Guest post: The difference between nuisance and threat

Originally a comment by Freemage on Will they cover mild distaste?

Generally, US Hate Crime laws work very well, to the extent that they’re applied as written. It can be easily understood that, for instance, vandalism is one thing (a nuisance property crime), but a swastika on the side of a Jewish cultural center is another (an active threat, meant to cause fear to a segment of the community). Similarly, a violent attack to gain the victim’s wallet, and an equally violent attack against a person solely because of his skin color are different beasts–again, the latter is deliberately meant to terrorize not only the victim, but also any others sharing his skin color in that neighborhood. More victims = bigger crime. (Elliot Rodger was a clear-cut example of a hate crime against women, as another example. He wasn’t shooting just to express social frustration, but to actively create a fear-response in women who say no to sex with men.)

So in the US, hate crime laws seek to regard bias as a modifier to the punishment criteria of an actual crime. No actual crime, no ‘hate crime’.

There’s two main issues that come up.

First off, women are notoriously under-represented in hate-crime legislation, and even in places where the law does recognize them as a protected class, prosecutors are unwilling to pursue crimes against women-for-being-women as hate crimes. There are plenty of cases of rape, in particular, where the perpetrator is clearly acting out of not merely a desire to sexually dominate a single woman, but rather to ‘put women in their place’. Serial rapists should almost always get hate-crime kickers, for instance.

The second issue (again, in the US) isn’t so much with law, as with law-like codes (such as university policies) that seek to treat the opinion and the deed as not merely morally/ethically equivalent, but also as ‘legally’ equivalent. This is vastly more shaky ground, and prone to both abuse (targeting someone whose speech isn’t anywhere near actual attempts to provoke violence) and lopsided approaches (look at social media policies that punish anti-trans-idology speech with rabid fervor, but look the other way at straight-up rape threats against women).

Germany has a historical/cultural reason for wanting to keep the lid on speech, and other European nations often seem to want to follow suit. But it’s still a huge risk to civil liberties to cross that line.

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