GUEST COLUMN: Two good ways to oppose bad hate-crime bills

The Journal Gazette recently printed a map showing states with hate-crime laws deemed “fully inclusive.” Why are they “fully inclusive”? Because their short lists of protected classes include “sexual orientation” and “gender identity.”

Period.

Do these “fully inclusive” laws mention that “constitutionally protected expression or conduct” might give rise to hate crimes, committed by those who hate the expression or conduct? There’s no indication that they do.

Do they mention that “association with any recognizable group or affiliation” might give rise to hate crimes, no matter what the group is or who hates it? They do not, so far as can be discerned.

What a bizarre, highly selective sort of “fully inclusive” laws these are. Hoosiers will do well, as the Indiana State Senate already has done well, to oppose deficient “fully inclusive” bills of this kind. But there are two good ways to oppose such bills.

One is to point out that Indiana already has a hate-crime law, though not an explicit one. Indiana law already allows judges to consider any and every possible hate-crime motive as an aggravating factor, because the listed aggravators do not limit the matters a court may consider in sentencing. An explicit hate-crime law, if enacted, would do no more than this, and should do no less.

The great strong point of this approach is its simplicity — if it works. (If it doesn’t work, you run the risk of getting an explicit hate-crime law framed entirely by the pushers of short, selective lists, with no input from those who favor a law that really is fully inclusive.) No doubt it would take a lot of effort to try to educate those who ignore existing Indiana law–but the effort could be worth it, if this really were the best way to go.

The big weak point of this approach (in addition to the risk that it might not work) is that it ignores the notable difference between hate-crime motives and other motives for crime. Hate-crime motives are evoked by disfavored characteristics typically shared by many people, without regard to any personal relationship with the victims. This makes them more far-reaching and more dangerous–to individuals, groups, and society–than the average motive for crime. For this reason, they deserve explicit mention as aggravators.

The second good way to oppose bad hate-crime bills is to propose an explicit hate-crime bill that really is “fully inclusive,” so far as reasonably possible. It’s not that difficult, using the following two-step process.

Step one, give the proponents of a deficient, so-called “fully inclusive” short list everything they want–say, “race, religion, personal appearance, sex, gender identity, sexual orientation, disability, national origin, ancestry, age.” This should be no problem, because judges can already consider all of those traits anyway if they evoke crimes.

Step two, also insist on at least two really big things they may not want: “constitutionally protected expression or conduct” (or some such all-encompassing expression covering freedom of speech and related action) and “association with any recognizable group or affiliation” (which is already in Indiana’s existing definition of a “bias crime”). Then watch them squirm, and lose any credibility they may still possess, while they try to explain why they think a fully inclusive law that names those possible hate-crime motives is unacceptable — unless they prefer to admit they’ve been wrong about that.

Hoosiers need a true “fully inclusive” hate-crime law, not a bogus one. We already have one, though it’s not explicit; we could have one just as inclusive, but explicit. Opponents of bad hate-crime bills need to recognize that both of these options, not only one, are worthy of approval.

David McClamrock is a Fort Wayne attorney.

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