Examining the boundaries of hate crime law: disabilities and the "dilemma of difference".

• Author: Grattet, Ryken

INTRODUCTION

Although anyone is potentially a victim of crime, some groups are particularly susceptible to victimization because of their vulnerability, social marginality, or invisibility. Some criminals use a victim's minority group membership as a means of gauging the victim's level of guardianship and the degree to which society cares about what happens to the victim. They often expect--with good reason--that the criminal justice system will share the view that such victims are unworthy of vigorous enforcement of the law. The stereotypes and biases upon which these views are based are, in turn, residues of historical relations of subordination, inequality, and discrimination, which criminals capitalize upon and reinforce. Moreover, like the schoolyard bully who preys upon the small, the weak, and the outcast, crimes against the disadvantaged are increasingly understood to possess a distinct moral status and evoke particular policy implications.

For students of public policy, advocacy groups, and legislators alike, questions about how law can best respond to the criminal victimization of minorities and others who are systematically disadvantaged presents a pressing, yet familiar, problem. This problem is often stated as a question: should those interested in enhancing the status and welfare of minority groups pursue policies that provide "special" treatment for minorities; or, alternatively, should they pursue policies that ignore the unique social location, special qualities, and socially structured obstacles faced by minorities and work solely towards improving the social and legal resources available to all victims of crime, regardless of their social characteristics or group membership? Stated more succinctly, should all victims of crime be treated the same or should some victims of crime, namely people who face unique barriers when accessing the criminal justice system and pursuing justice, be distinguished and treated differently? Historically and in the current era, policymakers, especially lawmakers, and advocates for minorities have had to respond to this question. And, how they have responded and continue to respond to this question is consequential for the making of criminal law and the delivery of social justice in the United States. This article addresses this concern by examining the contours of and justifications for status provisions, especially "disabilities," in American hate crime law.

There are costs and benefits associated with both choices to policymaking. Policies that emphasize the "special" needs of minorities, such as affirmative action policies and anti-discrimination laws, can reinforce cultural distinctions between "minorities" and "normals." (1) Such policies can render minorities different from normals, underscore their "incapacities" and special needs as the defining feature of their identities and, ultimately, place them in subordinate positions within both the public and privates spheres of social life. Arguably, one of the unintended consequences of social policies that single out subpopulations for "special" protections and treatment is the reinforcement of the idea that people of color, women, gays and lesbians, the poor, immigrants, those with disabilities, and non-Christians, for example, are more vulnerable members of society, less capable of responding to real and perceived vulnerabilities, and ultimately less credible participants in an array of social activities, especially those interfacing with the criminal justice system.

In contrast, policies that ignore differences between types of victims risk being insensitive to the increasingly well-documented institutional, organizational, and interactional disadvantages faced by minorities, including those who find themselves confronting a criminal justice system with ideologies and structures that were enacted without them in mind. (2) Treating minorities the same as other crime victims does little to challenge the biases and stereotypes with which criminal justice officials often operate. A sizeable body of evidence suggests that ignoring social difference seldom is enough to produce equality, especially in the criminal justice system. (3) Indeed, as many advocates for people of color, Jews, women, gays, lesbians, and persons with disabilities have recently pointed out, crimes against minorities are often unrecognized or ignored by law enforcement. (4) Failing to acknowledge the differences around which systematic injustices revolve, the argument goes, allows state officials to continue to do business as usual and does little to remedy systematic inequality.

The choice between whether or not to emphasize and delineate social difference in social policy, especially law, has been astutely characterized by Harvard Law Professor Martha Minow as the "dilemma of difference." (5) As Minow details in her book Making All the Difference: Inclusion, Exclusion, and American Law, the dilemma of difference is a philosophical, legal, and strategic issue that has implications for an array of social issues ranging from affirmative action to maternal leave policies to gay marriage to discrimination in the workplace against persons with disabilities. (6) As Minow writes:

The stigma of difference may be recreated both by ignoring and by focusing on it. Decisions about education, employment, benefits, and other opportunities in society should not turn on an individual's ethnicity, disability, race, gender, religion, or membership in any other group about which some have deprecating or hostile attitudes. Yet refusing to acknowledge these differences may make them continue to matter in a world constructed with some groups, but not others, in mind. These problems of inequality can be exacerbated both by treating members of minority groups the same as members of the majority and by treating the two groups differently. (7) Often summarized as a tension between "same" versus "different" treatment policies, the dilemma of difference is routinely confronted by advocates for minority constituencies, most notably those supporting or opposing the agendas of the contemporary civil rights movement to enhance the status and welfare of people of color, the modern women's movement to enhance the status and welfare of girls and women, the gay and lesbian movement to enhance the status of nonnormative sexualities, and the disabilities rights movement to enhance the status and welfare of persons with disabilities. Regardless of the vast differences among these groups, their constituencies, and the issues they confront, the value of considering the dilemma of difference is that it forces activists, policymakers, and members of the morally concerned citizenry to 1) anticipate the negative consequences of reforms based upon creating "special" treatment where such treatment directly or indirectly reproduces stereotypes about minorities and 2) acknowledge the drawbacks of ignoring the differences that define minorities of all sorts. Of course, being cognizant of the dilemma of difference does not necessarily ensure that it is resolved; rather, it only sensitizes advocates and policymakers to the costs associated with pursuing one kind of policy approach over another.

With the dilemma of difference in mind, this paper addresses a core question in the study of contemporary public policy in general and lawmaking in particular: when, how, and why should minority status be emphasized in public policy, especially criminal law? To address this broad question, we direct specific attention to the making of hate crime law in the United States, with a particular focus on the place and viability of "disabilities" within this body of law. First, we describe the history of state and federal hate crime lawmaking as a recent, innovative, and distinct policy response to age-old human behavior: violence motivated by bigotry and manifest as discrimination. Then, we argue that an empirical focus on the inclusion/exclusion of "disabilities" provisions in this body of law provides a useful, if not ideal, window through which we can examine a legal basis for including some status provisions (i.e., race, religion, ethnicity, sexual orientation, etc.) and not others (i.e., age, gender, marital status, class, occupation, etc.) in hate crime law. Once our analytic focus on disabilities is indicated, we discuss the parameters of "disabilities" provisions in hate crime law as a precursor to identifying a set of social and legal criteria for resolving the dilemma of difference relative to hate crime law. (8) Consistent with the original motivation for writing this paper, (9) this is the first article to systematically consider the legal basis and policy implications of treating crime victims with disabilities as victims and survivors of hate crime. This paper uses sociological data and research to consider the degree to which the deployment of hate crime law is a viable venue through which the status and welfare of minority groups--in particular persons with disabilities--can be enhanced.

1. HATE CRIME LAW: AN INNOVATIVE RESPONSE TO "BIAS-VIOLENCE"

   The National Law Journal recently noted that the 1990s may go down in history as "the decade of hate--or at least of hate crime." (10) Although it remains questionable whether the United States is actually experiencing greater levels of hate-motivated conduct than in the past, (11) it is beyond dispute that the ascendance of the concept of "hate crime" in policy discourse has focused attention on violence motivated by bigotry and manifest as discrimination in a new way. As we have argued elsewhere, what is now commonly understood as "bias" or "hate" crime is an age-old problem approached with a new conceptual lens and sense of urgency. (12) Despite a well-documented history of violence directed at minorities, during the 1980s and 1990s multiple social movements began to identify and address the problem of discriminatory violence...