I think he would agree with you that some crimes are worse than others, but he denies that the attitude that a person has is what makes a crime worse or better. So, in your example, the physical characteristics of the victim would be a factor. He would probably agree with that, but then there are different laws that might apply for things like infanticide, etc.

His concern is that if the beliefs of the accused becomes a factor, then we are punishing the thoughts of a person as wrong. Could this create a precedent for punishing the thought itself? In Canada and on university campuses, merely saying something offensive can get your prosecuted, even if no actual damage was done. That is what has happened in Canada, for example.

Criminal law has always taken into account the thoughts attached to and
associated with the crime. The crime formula bears this out:

Actus Reus + Mens Rea = Crime - Defences
(Actus Reus is the act, Mens Rea is the state of mind)

Hate Crimes jurisprudence attempts to extend Mens Rea to include not just things like intent, the flash of awareness that your action could cause harm just before you committed the action which are standard already in criminal law but also one's values and beliefs about things like race and sex and religion and that is what makes it problematic.

Much like the debate around smacking going on over here, it is like proponents of these sorts of laws do not understand distinctions - the law prosecutes assault, it does not make exceptions along the lines they are talking about, it is illegal to beat someone about the head with a brick whether they are gay, straight, black, white, your own child or a complete stranger.

I am familiar with those terms, but I think that mens rea further breaks down into general and specific intent. So isn't the intention to act to cause harm the thing that is criminalized? An attitude or opinion or moral judgment on its own is not criminalized, is it?

Yes,  Exactly, intention to act to cause harm the that is criminalized not the moral judgement or opinion. Both involve a state of mind but they are importantly different. 

If hate crime laws help the self-righteous right to see their prejudice and hatred more clearly they are a good thing....

Assault and homicide etc are covered by criminal law and bills of rights ensure that these laws apply to all, so all hate crimes legislation achieves is policing thought.

Am I to take from your comments Max that freedom of conscience, the freedom others have to form and manifest their own opinions about morality, is not as important as your beliefs about these things?

A little arrogant and totalitarian don't you think?

The older I get, the more people I meet,the more I listen to tal back and read random blogs, the less faith I have in democracy and the ability of the average person to have enough rationality to think through and understand the issues they are supposed to vote on.

So yes.  I guess I am rather arrogant and totalitarian.  But you say this as though it is necessarily a bad thing.  As though to throw the word "democracy!" in the air is the same as having a reaoned belief.  But that is just my pet peeve....

To the question:

If someone's crime is motivated by a fanatical hatred of (lets say) black people - and the whole reason they killed was due to this prejudice, then they are far more likely to re-offend than someone who was motivated by a one off event (seeing their wife cheating say).  They are also more likely to incite other people to commit similar crimes.

I think there is a real difference between the KKK member and the over stressed husband who snaps.  To say mantras like "assault is assualt" an "murder is murder" just brushes the differencces under the carpet.

Hate crime laws are policing thought?  I guess so in a way.  Do you not think that thoughts can lead to violence and murder?  Do you think that we should (for instance) ban a Nazi party in this country or are you happy for them to have their say?  I would sy ban them.  Characterise me as totaitarian if you wil lbut - Here I stand.

Do I believe in punishing people for their beliefs?  I guess i do in some instanes.  Do I think *my* beliefs are better than other peoples?  Yes! Yes! Yes! I genuinly blieve that Nazism is NOT as good as what *I* believe... I think that the KKK do not have as good a grasp on principles of what it is to be human as *me*
You say this makes me arrogant?  So be it.  You say to try to shut these idiots up is totalitarian?  Again.  So be it.   I don't worship at the alter of Freedom until it becomes so important that I will allow attrocities to be committed in its name.

<span style="color: black;"><span style=""><span style="">Max, here is the problem. </span></span></span>
<span style="color: black;"><span style=""><span style=""> </span></span></span>
<span style="color: black;"><span style=""><span style="">Suppose a John believes Bob is a thief, John on this basis beats bob to death.<span style="mso-spacerun: yes;">  </span></span></span></span>
<span style="color: black;"><span style=""><span style="">This would be a crime, justly punished but not a hate crime.</span></span></span>
<span style="color: black;"><span style=" "> </span></span>
<span style="color: black;"><span style=""><span style="">Now lets suppose a John beleives Bob engages in homosexual conduct, John on this basis beats Bob to death again clearly a crime and clearly justly punished. This however <span style="mso-spacerun: yes;"> </span>is considered a hate crime and punished more harshly. </span></span></span>
<span style="color: black;"><span style=" "> </span></span>
<span style="color: black;"><span style=""><span style="">Whats the difference? In both cases the person had a moral judgment that an action was wrong and in both cases the person acted unjustly. The only difference is that the content of the moral judgment made <span style="mso-spacerun: yes;"> </span>in the former case it was a judgment about theft in the latter a judgment about same sex-sex. The person in the latter case is incarcerated for longer solely because he believes homosexual conduct is wrong. </span></span></span>
<span style="color: black;"><span style=" "> </span></span>
<p style="margin: 0cm 0cm 0pt;"><span style="color: black;"><span style=" ">Now should people be discriminated against and have their liberty revoked because of their moral opinions about homosexual sex? I think the answer is clearly no that violates the persons civil rights. I have no problem with people being incarerated or even executed for murdering others, but I do not think that in addition to this they should be punished for not accepting a liberal view of sexuality.  </span></span>
<p style="margin: 0cm 0cm 0pt;"><span><span style=" "> </span></span>

I suspected that the objection to these laws might be somehow related to the fact that they put the homophobic person on the same level as the racist person.  Thanks for confirming my intuition.

I have already answered your objections above I believe.  The person who kills someone because they think they are gay is more likely to re-offend, is more likely to convince others to commit similar crimes - just like the racist.

They are not being punished for hating gays - they are being punished for putting this hatred into action.  Personally I would be in favour of a preventative system in this instance which would stop the murder in the first place.

Just try to remember this Matt:  The people walking around inthe USA with "God hates Fags!" placards are not as sophisticated nor as tolerant nor as forgiving as you are.  Your arguments while having a coffee in a nice cafe inAuckland translate to a broken beaten body and a grieving mother in less intellectual atmospheres.  Always worth bearing in mind.

By the way... another hint about how ddifferent the situation are is this... no one walks arounf with "God hates burgalar!" signs.... or even "God hates murderers!" signs.  Odd that - but indicates the difference between a crime and a hate-crime quite well somehow.

"<span style="color: black;"><span>I have no problem with people being incarerated or even executed for murdering others, but I do not think that in addition to this they should be punished for not accepting a liberal view of sexuality."</span></span>

In addition to being executed??

Matt, is your view the same in this case?:

<span style="color: black;"><span><span>Now lets suppose a John (a European) beleives Bob is a Maori who lives in his neighbourhood, John on this basis beats Bob to death again clearly a crime and clearly justly punished. This however <span> </span>is considered a hate crime and punished more harshly. </span></span></span>  
<span style="color: black;"><span> </span></span>  
<span style="color: black;"><span><span>Whats the difference? In both cases the person had a moral judgment that an action was wrong and in both cases the person acted unjustly. The only difference is that the content of the moral judgment made <span> </span>in the former case it was a judgment about theft in the latter a judgment about race. The person in the latter case is incarcerated for longer solely because he believes Maori living in the same neighbourhood as Europeans is wrong. </span></span></span>  
<span style="color: black;"><span> </span></span>  
<span style="color: black;"><span>Now should people be discriminated against and have their liberty revoked because of their moral opinions about Maori living in the same neighbourhood as Europeans? I think the answer is clearly no that violates the persons civil rights. I have no problem with people being incarerated or even executed for murdering others, but I do not think that in addition to this they should be punished for not accepting a liberal view of race relations. </span></span>

Same deal?

<p style="margin: 0cm 0cm 0pt;"><span style="color: black; mso-bidi-language: AR-SA;"><span style=""></span></span>
<p style="margin: 0cm 0cm 0pt;"><span style="color: black; mso-bidi-language: AR-SA;"><span style=""><span style="">Guest, even if believing that homosexual conduct is wrong is analogous to racism ( which its not). </span></span></span><span style="color: black; mso-bidi-language: AR-SA;"><span style=""><span style="">My view is that no one should be given a harsher sentence for an identical crime because of their political beliefs. </span></span></span>
<p style="margin: 0cm 0cm 0pt;"><span style="color: black; mso-bidi-language: AR-SA;"><span style=" "> </span></span>
<p style="margin: 0cm 0cm 0pt;"><span style="color: black; mso-bidi-language: AR-SA;"><span style=""><span style="">While I despise racism, I actually think its dangerous to have laws which prosecute people for holding or expressing racist beliefs. One obvious reason is that while many people have quite broad concepts of racism, its not uncommon for example for people to claim that opposing affirmative action is racism, or disagreeing with the Maori party is racist, etc etc another is that it means the state is in a position of ruling which political beliefs are orthodox and which are heterodox. I think bad ideas like racism should be fought with the rigorous propagation of good ideas not legislation. </span></span></span>
<p style="margin: 0cm 0cm 0pt;"><span style="color: black; mso-bidi-language: AR-SA;"><span style=""></span></span>
<p style="margin: 0cm 0cm 0pt;"><span style="color: black; mso-bidi-language: AR-SA;"><span style=""><span style="">In fact your argument shows precisely why we should not do this, some people think that believing homosexual conduct is wrong is the same as racism, this would entail that Islam, Catholicism, Evangelical Protestantism, Jehovahs Witnesses, Mormons, Orthodox Jews, Pentecostals and numerous other religious groups should be criminalised. </span></span></span><span style="color: black; mso-bidi-language: AR-SA;"></span>

"<span style="color: black;"><span><span>this would entail that Islam, Catholicism, Evangelical Protestantism, Jehovahs Witnesses, Mormons, Orthodox Jews, Pentecostals and numerous other religious groups should be criminalised."</span></span></span>

No Matt...  It would mean that the idiots who belong to these groups who go around with their "God hates fags!" signs bashing men who they suspect are gay should be criminalised.  And who would be against that.  It is NOT a matter of "<span style="color: black;"><span><span>believing that homosexual conduct is wrong" The thugs who beat the life out of (ie. murder or try to murder) someone for being gay are NOT noble philosophers merely expressing their well thought out beliefs - or saints upholding their spiritual beliefs.  They are akin to Nazi gangs on Kristalnacht.  </span></span></span>

Any YES! "<span style="color: black;"><span><span>the state is in a position of ruling which political beliefs are orthodox and which are heterodox."... thats why we don't have slavery... why women can vote... and why you are free to practice your religion... because the Big Bad State passed rulings on which political beliefs are orthodox (freedom, equality, etc.) and which ones are hetrodox (beliefs supporting racism, slavery, etc)</span></span></span>

<span style="color: black;"><span><span>Bad ideas like racism ARE fought with the rigorous propagation of good ideas that is why thet BECOME legislation.  I believe we are seeing this great tradition continue in our own lives.</span></span></span>

There's just one thing that I am not sure that I believe. You commented in your blog entry that "<span style="font-family: Trebuchet; color: #0a0809; line-height: 21px;">I also contest his notion that determining the severity of the crime does not depend on the status of the victim; surely a person beats to death a little child has done something worse than a person who beats to death a person of equal strength in a pub brawl?" </span>

It is surely a very gruesome and unfathomable thing to beat to death a little child, sometimes more than beating a person to death in a club brawl. Although the thought of a little child getting beaten to death is as you say, "something worse", i believe that in the end, it is still killing a living person. That's just my opinion. I think what is important is the motive behind the killing. Your statement might be more acceptable to me if both parties in the pub brawl had a hand in starting the actual brawl. but what if the killer or the victim is just defending himself?

anyway, that's my opinion. great blog sir. i shall be subscribing to this