Wednesday, July 19, 2006

Intra-racial "Hate" Crimes

Over at Blackprof, Shavar Jeffries poses an interesting question: if hate crimes laws are used to prostecute Latino gang-bangers for racially motivated attacks on Blacks, might the same laws be used to prosecute Blacks for Black-on-Black violence?:

Why not use hate-crimes laws to attack Black-on-Black crime? Much of Black-on-Black crime, I’d submit, reflects the extent to which Black folk have internalized stigma-informed signals about their capacity and worth. Stigma suggests to Black folk that their humanity is less valuable than that of Whites. To that extent, stigma cheapens the value of Black life — perhaps to the point that, when internalized, the self-constraint Black folk might otherwise exercise when contemplating deadly force is nullified.

Assuming stigma continues to represent a salient aspect of American society, the concept of Black-on-Black crime seems less a descriptive notion and more a normative one. To this extent, the racial identity of the victims of Black violence is a precipitating cause of the violence itself. That sounds precisely like the legal definition of a hate crime.

A more correct term, albeit less in popular use for such penalty-enhancing statutes is "bias crime." If guilty, you are already capable of being sentenced to the minimum for assault or murder, but if the prosecutor chooses to prosecute on the theory that the crime would not have been committed but for the victim's membership in some protected group, then the minimum sentence may be "enhanced" by a number of years. I myself frequently use the term "hate crime" out of reflexive laziness and imprecision, mainly because "hate crime" is more commonly used and thus understood. But we should distinguish hate from bias, because there is a certain degree of analytical slippage between the two terms. There are many different types of hate--the hate of one person against another who wronged him or her in some way (adultery, financial fraud, etc.), the hate you would feel against someone who wronged someone you love (a child molester, rapist, etc.)--there are a lot of hate-filled motivations behind almost every murder or assault. But in terms of distinguishing bias crimes from other animus-motivated violent crimes, (as opposed to random crimes of opportunity or collateral violence in the commission of some other felony, like armed bank robbing), bias crimes are those in which the individual identity of the victim is irrelevant. The perpetrator doesn't target the victim out of vengeance, for example. A bias crime is one in which the victim is selected not because of who he is, but rather because of the victim's membership in some racial or ethnic group. That is, it is hatred "plus" or rather hatred "distinguished," because it is not necessarily hatred towards the victim per se, but rather the perpetrator's bias or prejudice toward that victim. It is hatred connected to a general antipathy for a racial, ethnic, or national origin.

And for that reason, such crimes are distinguished from the more "general" variety of violent crime, and arguably more morally reprehensible. It is not a crime of opportunity. It is not a crime of passion, of vengeance. If we enlarge the conception of bias-motivated crime beyond that based on race, ethnicity, national origin, or religion (the standards adopted by most states), we can think of other contexts in which the crime is dependent on the membership of the victim to some marginalized group. All rape, sexual assault, sexual harassment, and domestic violence, for example, may be considered gender-motivated violence. All violence against homosexuals, transgenders, or those who exhibit opposing gender characteristics ("butch" women or "effeminate" men) may be considered sexual orientation motivated violence. It is violence "because of" the victim's apparent or presumed membership in some group to which the perpetrator feels antipathy. Thus, a bias-motivated crime is not dependent on the identity of the perpetrator, but rather the membership of the victim to some group. And if there is evidence that the crime was motivated at least in part by animus towards the victim's membership to some group (the perpetrator said "take that N--ger" or "go back to China, you Chink"), then the prosecutor may choose to prsoecute under a bias crime theory.

So to go back to Shavar's question, yes, I do think bias crime laws may be used to prosecute Black-on-Black crimes. If the perpetrator had the requisite mens rea for the crime, it doesn't matter the identity of the perpetrator, only his state of mind as being prejudiced against the members of a group to which the victim belongs. Frederick Lawrence, one of the preeminent scholars on the subject, has this definition of prejudice:

"Prejudice, in this context, is not strictly a personal predilection of the perpetrator. A prejudiced person usually exhibits antipathy toward members of a gorup based on false stereotypical views of that group. But in order for this to be the kind of of prejudice of which we speak here, this antipathy must exist in a social context, that is, it must be an animus that is shared by others within the culture."

To give examples of "antipathy within a social context," Lawrence suggests the following: anti-Semitism as a group antipathy that has a social context, because such antipathy is based on false stereotypical views of the victim's religous group. Antipathy towards people with blue eyes, however, lacks that social context and is not a good example of prejudice that may lend itself to fulfilling the definition of bias-motivated crime. Thus, if we think of prejudice in its social context, then why can't Black-on-Black crime be prosecuted as a bias crime? Shavar Jeffries' invocation of internalized stigma would appear to be in confluence with Lawrence's definition of social context prejudice.

Intra-racial hate crime is possible. If we get think outside the "hate" box, so that we do not focus solely on animus (which sounds merely emotional), or are not limited to ideas of external hate or internalized, or "self-hate," and concentrate on the definition of social context prejudice--then are we not all capable of that prejudice? Are we not all vulnerable to internalizing false stereotypes of others, and even false stereotypes of our own member groups? Are we not all capable of reducing in estimation and being prejudiced against people like ourselves, or who at least superficially resemble our member group, but whom we think do not represent the best characteristics of our group?

I'm Vietnamese, that is to say, Southeast Asian. There is no pan-Asian ethnic identity, as I learned in college and law school (at both schools there were large Asian student populations, even constituting a majority at my undergraduate institution). There is a bizarre hierarchy of Asian ethnicities, which tracks intra-Asian colonialism. North Asians, in particular the Chinese, Korean, and Japanese, have historically colonized and exploited for cheap labor their Southeast Asian neighbors. To this day, there are plenty of Vietnamese, Thai, and Filipino maids and laborers for the more affluent, urban Chinese and Japanese. I have actually been rejected by a guy as a serious long-term dating possibility because I would not be considered suitable girl to bring home to his Taiwanese parents. I was apparently of not the proper social or ethnic class. I have actually heard my Chinese law school friends say that being Filipino is "basically as close to Black as you can get." In doing some undergraduate research on pan-Asian ethnic identity (conclusion: there is none), I discovered that the long-settled, long assimilated 3rd or 4th generation Chinese and Japanese communities in California objected to the influx of Vietnamese in the 1970s-80s--it was that "there goes the neighborhood" mentality. The Chinese and Japanese "immigrants" (really, by the 3rd or 4th generation, why are we still called "immigrants"?) felt that the new immigrants (which also included Koreans) were "messing up" the hard-won acceptance and assimilation of the more established Asian community. I lived very close to the major Asian ethnic enclaves in California--it was very much the case where older immigrants resented the bad PR the newer immigrants (who were poorer and less educated, and whose children joined gangs, raising the crime rates) brought to the "Asian identity." So can I imagine intra-racial bias crime? You bet. No matter how low on the hierarchy of races you may imagine a certain racial group (and don't you disbelieve when I say that people actually say out loud "well, better that she marry a Filipino guy than some Mexican or Black guy"), there is always some other group "above" and "below."

If such stereotypes may be deployed by one racial or ethnic group against another, even within a large umbrella racial category ("Asian"--do you mean North, Southeast, or South Asian?, "Latino"--Mexican or South American?, "Black"--Carribean, West Indies, African, or African-American?), then I can definitely imagine internalized stereotypes about one's own racial group being a prejudicial motivation for violent crime.

It's just all very sad, no matter who the perpetrator or victim is.


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