Commentary
Legally, hate crimes are different
from derogatory name-calling
Guest commentary
During this past academic year,
there have been hundreds of “hate
related” incidents and hate crimes
on campuses nationwide. They
have ranged from physical beatings
of a student, to vandalism of student
property and school buildings.
About a month ago, campus police
at California Polytechnic University
at San Luis Obispo arrested several
students who had thrown eggs at stu
dents who were staffing a gay stu
dents’ club booth on campus. While
throwing eggs at someone ordinarily
would be a simple misdemeanor, be
cause it’s a hate crime, the attackers
face felony charges.
Two weeks ago, the National Gay
and Lesbian Task Force released a
comprehensive study, indicating
that one-third of lesbian, gay, trans
gender and bisexual students (in
their survey of 14 campuses) had
experienced harassment in the past
year, while 20 percent said they
feared for their safety.
A federal law, the Clery Act, re
quires all colleges to report each
year on the number of crimes on
campus for the previous year. For
2001, college campuses reported
more than 300 incidents on col
lege campuses, including arson,
aggravated assault, simple assault
and forcible sex offenses.
The Clery Act requires schools
to report crimes motivated be
cause of a person’s race, religion,
gender or sexual orientation.
While states define hate crimes
differently, they all involve some
underlying crime, such as a battery
(touching), assault, arson or van
dalism (property damage). If the
perpetrator’s motive in committing
the crime is the victim’s race, for
example, then the state may en
hance the penalty assessed.
Thus, a simple misdemeanor
battery (offensive touching) can
become a felony because of the
hate crime enhancement.
A hate incident is one where
someone is called a derogatory
name. While name-calling is not
itself a crime, the recipient may
rightfully feel intimidated and
possibly threatened with immi
nent violent attack. So it’s a re
portable incident.
Most states today do have some
type of hate crime statute, but the
coverage varies. Most states include
attacks because of a person’s race or
religion, and many cover sexual ori
entation, too.
For example, California and four
other states also include “gender
identity.” This latter provision cov
ers cases where a transgender per
son is attacked.
Some states, however, do not in
clude sexual orientation. Federal
law, for example, does not include
sexual orientation in its version of
hate crimes. Congress is consider
ing adding it to the federal law, but
it currently does not.
There are also some misconcep
tions about hate crimes that are im
portant to clarify:
1. Some attackers have argued
that they haven’t really committed
a hate crime because they really
didn’t know for sure that their vic
tim was, let’s say, gay or Muslim. It
doesn’t matter. As long as the perpe
trator “perceived” the victim to
have a certain characteristic, that’s
all that matters.
2. Some attackers contend that
it’s not a hate crime because their
motive was something other than
picking on the person because of
his or her race. And this does pres
ent a problem for prosecutors. Of
ten the attacker makes derogatory
comments about the victim’s race
and that provides the proof that
the crime was committed, in part,
because of the victim’s character
istics. Prosecutors don’t have to
prove that the crime was commit
ted solely because of a person’s
race, just that a motivating factor
was the person’s race.
3. An interesting situation arises
when one is attacked who is not,
let’s say, Muslim, but is a sympa
thizer. The victim is not Muslim,
nor perceived to be. Yet, the vic
tim is attacked because he or she
is defending the rights of the Mus
lim. The Illinois Supreme Court,
in such a case, held that the victim
is still a victim of a hate crime. In
essence, the attacker’s intent to
harm someone is transferred to a
different person.
4. Perhaps the biggest misconcep
tion about hate crimes is that most
hate crimes are property-related
crimes, usually involving vandalism.
Spraying a swastika on the wall of
the Jewish Student Union is a hate
crime because the vandalism is mo
tivated by the victims’ religion. Cal
ifornia courts have held that, even
spraying a swastika in an area
where Jewish students congregate,
is a hate crime. Tearing down ban
ners of the gay student union would
also be a hate crime. These are
property crimes motivated because
of the victims’ characteristics.
5. Another misconception is that
schools do not have to do anything
to respond to various hate crimes.
That’s really not the case. Federal
law requires schools to act reason
ably, not indifferently, to acts of
bias. In the Cal Poly case, the uni
versity police acted correctly by in
vestigating the matter and appre
hending suspects.
Some people argue that hate
crime laws limit free speech.
There’s never been a prosecution
for merely uttering derogatory
terms relating to race, religion or
sexual orientation. And campus
speech codes that make such pun
ishable offenses are likely to be con
strued as unconstitutional.
But when words are uttered in
connection with a physical as
sault and specific harm to the re
cipient, then it rises to a hate
crime and is punishable.
Robert DeKoven is a law professor
at California Western School of Law
in San Diego, California.
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