Dialogue: Proposed law will punish felons for their thoughts

BRUCE LOGAN argues that legislating against 'hate crime' will create inequities and burden judges with the need to assess criminals' motives.

The majority of Parliament's Justice and Electoral Select Committee has recommended, without any public input whatsoever, the addition of "hate crime" to the Government's Sentencing and Parole Reform Bill.

Hate crimes - crimes committed against individuals belonging to a particular "class" of person (race, religion and sexual orientation are the principal ones to be specified) - could soon be treated under the law as an "additional aggravating factor" to be taken into account by judges at sentencing.

An offender is to suffer greater punishment because of the way he/she thinks.

Consider this scenario: a woman is killed during a burglary. Another woman, a lesbian, is killed by an office clerk because he hates lesbians. The outcome is the same in both cases: the women are equally dead.

If we are to take the category of hate crime seriously, the burglar would not be guilty of a hate crime but the office worker would. They would receive different sentences on the basis of what they thought.

Why is it less serious to kill an individual than a member of a group? Why is hate for a group worse than hate for a person?

Proponents of hate crime legislation argue that the killing of a member of one of the groups they have specified indicates hostility towards the group and harms the whole group. When crimes are committed because of our differences, the consequences reverberate beyond the person to the entire group. Because hate crimes have this larger impact, punishment must be more severe.

Oh, really!

All crimes have an impact on the community in which they are committed, and with media exposure the impact can spread much further. If there is a burglary next door, you worry that you might be next. My neighbour might not be the same race, religion or sexuality as me but I worry anyway, for obvious reasons.

Crime does not discriminate. But the proponents of hate-crime legislation would have us discriminate.

If we accept their arguments we must accept, for example, that Maori, homosexuals, transgender, bisexual or religious people (some strange bedfellows here) are unusually neurotic, to the point that crime affects them much more than it does anyone else.

Not only is that absurd, it's an insult. It puts some people into groups that need special protection; in so doing it reinforces the stereotypes we have allegedly been trying to move away from.

The idea of preferred classes will be a new feature of our criminal law. Judges applying their common sense have always had the ability to ensure that a sentence has a deterrent effect if there is clear evidence that someone has been singled out because of his or her characteristics. It is a discretion that judges are trusted with, and express provision to that effect will be in the proposed law.

But for the law to specifically identify hate crimes goes further. It will create special categories of people, and consequently distort the whole notion of equality before the law.

The dirty little secret is that hate crime legislation has nothing to do with stamping out hate or with reducing the number of murders or rapes in New Zealand. If a man/woman beats up his wife/husband for adultery or idleness, does this create special classes of adulterers and idle spouses?

Hate-crime legislation does not turn actions that were previously legal into crimes. Murder, rape, assault and vandalism have always been crimes and are punished accordingly. Hate crime legislation is enacted to give special protection to select people, therefore making them more valuable in the eyes of the law.

But, who is pushing for this? It is not a grassroots movement. It has come about on the basis of only one submission to the Justice and Electoral Select Committee. Some groups, homosexuals for example, are presumed to be a victim group, who require special protection. Therefore we must be re-educated about the way we think about them by fear of special punishment. This law is not just about the crimes people commit - it is more about what the majority of the select committee members call prejudice. They say prejudice presents a long-term threat.

Let's go back to the burglary/office-clerk scenario. Let's assume that both victims are lesbian. The office worker, as before, kills his victim because he hates lesbians. In the case of the burglary, the burglar wants the woman's possessions; she is in the way, so he kills her. The office worker is guilty of hate crime but the burglar is not, despite both killing lesbians. The only difference is what the two killers were thinking when they committed the crime.

Pity the poor judge who will have to decide what a criminal was thinking at the crime scene.

Hate-crime legislation is a euphemism for thought-crime. It is asking us to let the Government prosecute people for what they think in addition to what they do.

This legislation is an underhand way of making sure that people learn to think the way the Government wants them to think. It is an exercise in intimidation.

Even more important, it undermines our equality before the law by introducing special types of victims. It is impossible not to recall a line from Orwell's 1984 - "The Party is not interested in the overt act: the thought is all we care about."

* Bruce Logan is a director of the Maxim Institute, a social policy and research organisation in Christchurch and Auckland.

* mail@maxim.org.nz