There goes the neighborhood: What counts as a hate crime?

David Brax, CERGU

Among the first questions you should ask when being introduced to a new category-concept is this: what does it cover? What qualifies as an ”X”? When given a fairly informative definition, you turn to fringe cases, and ask whether they qualify as X or not. This technique will make you seem polemic and lacking in seriousness. If you’re a decent philosopher, that’s at least partly true. But we need fringe cases in order to lure out the differences between theoretical models, and also to test the plausibility of these models.

Hate crimes involve a combination of factors. Mainly: a crime, a prejudice and the small but very significant and problematic notion of ”because of” which connects them. A crime is a hate one when it is committed because of a prejudice against a certain group (membership in which is based on some to-be-determined characteristic important to the victims’s, or somebody’s, identity).

Now, it’s important to note that committing a crime because of a prejudice against a group, is more narrow than committing a crime because of group membership. I may believe (rightly) that the elderly are less able to catch me running from the scene of the crime, and therefore target them. According to the so called ”victim selection model” for hate crimes, this case may qualify as a hate crime simply because group membership was part of the reason why I picked this particular victim. According to the animus-model, it wouldn’t count unless I also held some negative and unfounded views about the elderly, and that was part of the motivation for the crime.

The victim selection model allows for cases where the perpetrator has no prejudice, and prejudices in general do not enter the explanation of why the crime took place. Semantically, this puts the label ”hate (and bias) crime” in question, and many commentators believe this account misses the point. But consider a further case:

A person assaults a group of immigrants that have recently moved in to the neighborhood. The reason is that he/she (rightly) thinks that the arrival of immigrants have lowered the economic value of his/her house, and thus intend to scare them into moving away. Let’s imagine this is the sole reason, and the perpetrator can plausibly deny any prejudice by saying that he/she would’ve assaulted anyone whose presence in the neighborhood had that effect. The category ”property value diminishers” does not denote a protected group. What does the animus model say? Well, no animus is present, so this seem not to be a hate crime. The victim selection model, on the other hand, would presumably rule it in.

However: the peculiar feature of this case is that the crime is still committed because of prejudice. It’s just not the prejudice of the perpetrator, but that of the potential buyers of property. On one interpretation of the ”because of” clause in the hate crime definition, then, these sorts of crimes would count as hate crimes. In many respects, these crimes seem to be at least as shady, and in some sense particularly blameworthy because cowardly, as crimes committed on the basis of a prejudice that you have yourself. They presumably do as much damage. But should they count as hate crimes?

That depends on the proper analysis of because of – an analysis that in itself depends on the plausibility of what’s included, i.e. determined on the basis of fringe cases like those considered above. That, in turn, depends on the moral foundations that determine the seriousness of hate crime. A question that, alas, is still far from settled.