GUEST COLUMN: Yes, it really is possible to pass an unbiased hate-crimes law

You may not care if Indiana is on anyone’s “naughty list” for not having a hate-crime law. Frankly, I don’t either. But I do care, and so should you, about motives for crime that may arise from many different kinds of hatred or animosity, especially in our bitterly divided political and cultural climate.

It’s just common sense that a person who hates a whole lot of people, for some fixed ideological reason, may have a serious and dangerous motive for crimes that otherwise wouldn’t be committed. It’s also common sense that people should, and easily can, express their views on controversial topics without committing crimes. Indiana now has an opportunity to pass an unbiased hate-crime law that will recognize these common-sense principles but will not have the fatal flaw of hate-crime laws in too many other places. That fatal flaw is the creation of invidious distinctions between those who are members of “protected classes” and those who are not.

Example: Mr. Gay and Mr. Antigay commit battery and intimidation against each other because Mr. Gay hates anti-gays and Mr. Antigay hates gays. Gays are a protected class; anti-gays are not (or, technically, “sexual orientation” is a recognized basis for “hate,” while “disapproval of sexual orientation” is not). Mr. Antigay therefore is guilty of a hate crime and receives a more serious penalty, while Mr. Gay is not guilty of a hate crime and receives a less serious penalty for similar or identical hate-motivated conduct.

On the other hand, pro-gay advocates are not a protected class, so Mr. Antigay can argue that he isn’t guilty of a hate crime because he really hates Mr. Gay only as a pro-gay advocate, not a gay. This is all absurd, or worse.

There are no special protected classes, and no special hate crimes, in the legislation presently proposed as Senate Bill 12 . As to punishment for existing crimes, within the existing sentencing ranges, that bill simply makes clear that a judge may consider the following aggravating factor (see the language in bold type toward the bottom of the bill): “The person committed the offense, including an offense involving an individual’s or a group of individuals’ property, with the intent to harm or intimidate an individual or a group of individuals because of the individual’s or group of individuals’ perceived or actual: (A) race; (B) religion; (C) color; (D) sex; (E) gender identity; (F) disability; (G) national origin; (H) ancestry; (I) sexual orientation; (J) political affiliation; (K) status as a public safety official; (L) status as a relative of a public safety official; (M) service in the armed forces of the United States (as defined in IC 5-9-4-3); or (N) association with any recognizable group or affiliation; whether or not the person’s belief or perception was correct.”

We don’t need pointless posturing and hot-air-filled disputes about whether to kick out “gender identity” or “sexual orientation,” alone among all possible hate-crime motives, from this very broad language. To make this bill as useful and as unbiased as possible, we only need to make the language even broader by adding something like this: “(O) opinion, advocacy, or action regarding any of the factors specified above.”

Example: if somebody thinks you’re a racist, sexist, anti-gay, or an opponent of unusual self-determined gender identities (whether you really are or not), and therefore commits a crime against you, this should be a possible aggravating factor for sentencing. It shouldn’t matter whether the person also thinks you’re associated with a “group or affiliation” holding the same views.

You can hold any opinion you see fit on any controversial topic, but your opinions shouldn’t make you either a perpetrator or a victim of crimes. If your opinions do lead to crimes that otherwise wouldn’t have been committed, it’s just common sense to say this may be an aggravating factor for sentencing — just as if someone intends to harm or intimidate you because of your race, sex, disability or some other factor beyond your control.

No special protected classes, no biased treatment of people with opposing views, and yet no silence about the many kinds of hatred or animosity that may lead to an increase in crime — this hate-crime law actually should not be controversial. Let’s get it done.

Please write your legislators and ask that Senate Bill 12 be passed, with the addition of this language to the proposed aggravating factor: “opinion, advocacy, or action regarding any of the factors specified above.”

David McClamrock is a Fort Wayne attorney.

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