Opportunistic Hate Crimes Targeting Symbolic Property: When Free Speech Is Not Free

Author:Rebecca Davis
Position:J.D. Candidate, The University of Iowa College of Law, 2007; M.F.A.

I. Introduction II. Background A. An Overview of Hate CrimesB. Legislative Responses to Bias-Motivated Crimes C. The Constitutional IssuesIII. Analysis A. Integrating Opportunistic Hate Crimes into Current Legislation B. Applying the Principle of Felony Murder to Opportunistic Hate Crimes C. The Proposed Approach Is Consistent with Current Hate Crime Legislation D. The Proposal Is Constitutional... (see full summary)


    Rebecca Davis, J.D. Candidate, The University of Iowa College of Law, 2007; M.F.A., The University of Iowa Writers' Workshop, 1996; B.A., Vassar College, 1992. I wish to thank my family and especially my husband, Dan, for their unlimited belief in me. Thank you also to members of The Journal of Gender Race & Justice for their help with this piece. All remaining errors and omissions are mine.

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I Introduction

Imagine a situation in which a burglar enters a home and robs it for the purpose of obtaining material possessions. He or she has selected the home simply because it was an easy target; he or she knows nothing about the inhabitants of the home, including their race, gender, or religious preference. During the commission of the robbery, however, the burglar spots a religious symbol-a menorah, for example-and sees an opportunity to express his or her hatred for Jews, the presumed owners of the home he or she is robbing. The burglar seizes the menorah and smashes it on the ground with such force that the metal of the menorah is twisted and the wooden floor is significantly gouged. After destroying the menorah, he or she completes the robbery and departs the house with his or her cachÈ. When the investigating police officer comes to the house, the home owners point out the damaged menorah as they detail missing items, but the officer declines to make a note. Because the burglar entered the home with the intent to rob and the primary purpose of the act was to commit a robbery, the anti-Semitic incident is "lost" in the "rational" act of the robbery. As a result, the bias element disappears and with it the hate crime. 1

The vandalism of the menorah is a hate crime of opportunity, a "crime within a crime." For purposes of this Note, the discussion of opportunistic hate crimes will be limited to those illegal acts that are accompanied by destruction or manipulation of a symbol holding special meaning to the Page 94 victim¥s group. As demonstrated in the example, purposeful destruction of a menorah at a robbery scene would constitute a hate crime of opportunity. Burning a cross on someone¥s lawn after robbing his or her home, inflicting bodily injury to the inhabitants, or damaging their property based on bias would also constitute a hate crime of opportunity. In these scenarios, the perpetrator has not selected the victim on the basis of bias.2 Consequently, should a hate crime be reported at all? If so, should it be reported as a robbery or vandalism? Should the punishment escalate from the punishment of the primary crime or the secondary crime? These questions become particularly compelling when one considers other potential scenarios: what if the primary crime were a rape or homicide, and the perpetrator found the religious symbol and chose to express his or her bias in conjunction with the rape or murder?

One perspective would be that the secondary crime was simply an expression of free speech and that to condemn it would be an unconstitutional restriction on First Amendment rights.3 An alternative perspective, which this Note discusses, is that an expression of hate manifested through a secondary crime manipulating symbolic property4should be reported and prosecuted as part of the primary crime and that the primary crime should be elevated to a bias crime.5 This Note will not attempt to explore the boundaries of precisely which symbols constitute symbolic property that can be the target of a hate crime. Generally, property that plays a role in shaping and affirming group identity should warrant special protection.

Including hate crimes of opportunity, in which the perpetrator manipulates symbols as a form of coercive speech, into hate crime Page 95 legislation raises several issues. First, the Anti-Defamation League6 (ADL) model legislation for bias crimes states that in order for a court to elevate the penalty for a crime on the basis of bias, the perpetrator must have committed the criminal act "by reason of the actual or perceived race, color, religion, national origin, sexual orientation, or gender of another individual or group of individuals."7 This legislation is consistent with the Supreme Court¥s ruling in Wisconsin v. Mitchell.8 A crime that was not initiated with the intent to target a protected class would not necessarily warrant an enhanced penalty and would not fall into the model definition or the Court¥s ruling in Mitchell. Second, declaring negative manipulation of symbols as a hate crime implicates First Amendment and free speech issues.9 This Note explains why defining an opportunistic hate crime as a bias-motivated crime is consistent with the intent of current hate crime legislation, and why, although such a definition circumscribes what is arguably free speech, it does not impinge on First Amendment rights.

II Background

In response to escalating levels of bias-motivated crimes, states have drafted legislation defining hate crimes10 and the federal government has stepped in to establish reporting mechanisms for such hate crimes.11Proponents of the legislation support it as a means to counter the destructive effect of hate crimes on society, while detractors challenge it on grounds of both effectiveness and constitutionality.12

A An Overview of Hate Crimes

Under current state and federal hate crime laws, a crime is not eligible for an enhanced penalty unless it is a bias-motivated crime in which the perpetrator selects his or her victim on the basis of the victim¥s status as a Page 96 member of some protected class.13 Typical hate crimes include cross burnings directed at the homes of African Americans, paintings of anti- Semitic graffiti on Jewish synagogues, and "gay bashings," which are physical assaults on gay men and lesbians.14

The number of reported hate crimes has increased every year since 1988, a fact which is attributed to "rapid demographic change, growing intergroup tensions, entrenched bigotry, and worsening economic conditions."15 Such crimes are perceived as an indicator of the state of relations between various social groups.16 As such, hate crimes are viewed as particularly insidious to society; the damage that results cannot be reduced to monetary value, and the emotional and psychic harm that results cannot be ignored.17 Hate crimes "emphasize[] the differences among our people, not as the strengths they are in this diverse country, but as a means of dividing American from American."18 Not only do hate crimes harm individual victims but their effects reverberate beyond the victim, extending deep into the victim¥s group and causing feelings of unease, fear, and devaluation.19

The damage inflicted by hate crimes is "distinct from and greater than the harm" caused by other crimes and injures to both individuals and groups alike.20 Experts have cited a number of reasons why hate crimes create such distinct harm. First, criminals are more culpable, and their criminal act is more reprehensible when it is motivated by bias.21 Second, hate crimes have a disproportionately severe impact on individuals than other types of Page 97 crime.22 Victims who realize that the hate crime was directed at them based on their status "will experience a sense of ¥unique vulnerability,¥ which can result in depression, anxiety, isolation, and guilt."23 Third, hate crimes inflict greater psychological injury on their victims.24 Fourth, hate crimes affect not just an individual victim, they also harm third parties.25 Fifth, hate crimes are likely to generate conflict as the injured group retaliates against the perpetrator¥s group, whether that response be revenge, insecurity or some other defensive action.26 Sixth, the increased punishment afforded hate crimes serves as a greater deterrent than the punishment afforded traditional crimes.27 Finally, labeling hate crimes as such helps educate society and sends a clear message about the evils of prejudice.28 As Peter Finn eloquently summarizes, "bias crimes tear at the very fabric of our society," threatening deeply held beliefs in principles of individual liberty.29

Hate crime legislation and society as a whole would benefit from defining crimes of opportunity as hate crimes, rather than limiting hate crimes to those initiated by reason of bias. Although the purpose of the "primary crime," the robbery in the example, is to obtain material gain, the purpose of the secondary crime does not support that intent. Instead, the secondary crime is intended solely to commit injury or instill fear.30Consequently, it makes sense to target those actions which the perpetrator enacts for that very purpose, regardless of when he or she made the decision to inflict the hateful act.

Hate crime statutes are necessary because society¥s failure to recognize and effectively address "this unique type of crime could cause an isolated incident to explode into widespread community tension."31 Accurately defining hate crimes in the statutes to include crimes of opportunity would help prevent crimes that uniquely harm individuals and groups on the basis Page 98 of their status. Criminals would be deterred from escalating their crimes into acts of intimidation; crime reporting statistics would more accurately reflect the volume of hate crimes; and society would send a clear message to perpetrators that such intimidation will not be tolerated.32 Modifying hate crime statutes would...

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