Hate crime laws were the topic of discussion at a Law School forum held March 30 as part of Penn’s annual Lesbian, Gay, Bisexual Awareness Days. We asked Professor of Communications Larry Gross for his views on the subject.

Hate crimes laws rest on the notion that there are criminal acts whose victims are entire communities or groups of people, not just the specific individual who is the target of a particular act, and that these acts are aimed at terrorizing or intimidating into silence entire groups of people.

The argument against hate-crime laws is a question of whether they chill freedom of speech and whether they punish thought rather than action, and that is a real concern.

First you must commit a crime

However, it’s important to note that our existing criminal laws already calibrate judgment and sentencing in many cases based on the intent of the criminal. A person who kills another person, for example, may be convicted of first-degree murder at one extreme and accidental manslaughter at the other, and the criterion for making the determination in favor of the lesser or the greater charge is often precisely the state of mind of the killer.

As far as I know, there is no hate crime law that does not augment an existing crime. You cannot be convicted of a hate crime without first committing a crime that is already punishable by law. Hate-crime laws ratchet up the punishment based on intent, which already happens in many cases, including homicide.

Much of our confusion over hate-crimes laws stems from a misleading focus on homicide. The killings of Matthew Shepard, James Byrne and Billy Jack Gaither, to name three, are clearly cases where the victims were chosen because of their status as blacks or gay men, but the killers facing first-degree murder charges in these cases are already in serious enough trouble.

Powelton Village incidents

But there are other acts of intimidation, including assault, that are prosecuted at a much lower level. For example, it should be clear that the people who keep tearing down rainbow flags in Powelton Village are acting out of hostility to gay people and not merely collegiate high spirits, just as the harassment of African-American families in Grays Ferry was not just a case of intra-community friction. In cases such as these, hate crimes laws can send appropriate messages of society’s determination of what constitutes unacceptable behavior.

We should, however, be wary of extending the concept of hate crimes to the area of speech, or what might loosely be termed verbal assault. Applying the logic of hate crime to verbal insults or harassment carries with it the risk of chilling free speech in the public sphere, and this is a real concern. But I have seen enough instances of physical harassment and assault against people based solely on their belonging to a particular group to believe that group status can be a reasonable ground for punishing certain types of criminal behavior more severely.

However, to the extent that hate-crimes laws are justifiable, there is no excuse for excluding a group of people who are disproportionately the victims of the acts these laws target. Sexual minorities are such a group, and their exclusion from the protection of such laws is itself bigoted. Unfortunately, the state of Pennsylvania currently engages in such bigotry, and the prospects for change are remote. It would probably take an event on the scale of the Matthew Shepard murder to produce a just hate-crimes law in this state. But then again, Shepard’s murder had no effect on the law in Wyoming.

Larry Gross, Ph.D., is professor of communication in the Annenberg School and the chair of the Faculty Senate.

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