On a private list I posted the following:
I’m looking for a couple of good libertarian articles that oppose hate-crime legislation on grounds that the motive behind a particular intentional crime do not make the particular act of crime better or worse from the victim’s point of view, or similar criticism.
I received a few private replies to my post. Let me clarify and answer them generally here. First, my post was not an attempt to argue any point; I was just asking for an article that makes this argument, so I can use it in a footnote. But let me mention my views briefly here on this. I am not implying that intention does not matter when assessing criminal action. But I distinguish between the intentionality of the crime, and its motivation or purpose.
A human action (such as a crime) is necessarily intentional, or purposeful. But it is intentional regardless of *what* the specific purpose is. I would view a racist attack on someone as an intentional act, with a racist purpose. A non-racist attack on someone is still intentional, and thus still a crime; it still has a purpose, but the purpose is something other than a racist one, e.g. it might be to further a robbery or sheer sadism. (For further discussion of these issues, see my articles: Causation and Aggression (distinguishing between mere behavior, and action, which is intentional); )
For example, if I am playing basketball with you and my fist accidentally hits you in the face, as we are jostling; or if I have an epileptic fit and my arm strikes you; or if I am joking with you, trying to tease you, and swing at you, intending to miss, but you move unpredictably and I strike you--all these are cases of a non-intentional, at worst negligent, action. I believe mens rea, or intent, is indeed an important element of a crime. THe crime has to be intentional. To me, the *motive* is the *reason why* you (do intentionally) commit a crime.
If I intend to univitedly punch you in the face, this is a crime--battery. I might intend to do so because I want to frighten you; or I get a weird pleasure out of it; or I can’t control my temper; or as part of a robbery; or because you are gay or black, say. A rape of a woman is an intentional crime. The motive may be to punish her (say, she broke up with you) or her husband; to have sex; to commit violence; or because she is the wrong race. I can see motive being taken into account when determining punishment, once it is established *that it is* an intentional crime and thus that some punishment or response is justified.
For example, if I break into your house (intentional--crime) for the purpose if robbing you (motive), that migth receive a harsher punishment than if I break into your house (intentional--crime) for the purpose of surviving from a freak blizzard (motive). Likewise, if I steal a loaf of bread b/c I am desperate and need to save my baby who is starving, it is still an intentional crime but the purpose or motive is to save my baby’s life. If I steal your money to buy drugs or buy a Gamestation, the motive is different.
In my view, an out and out intentional criminal act, such as battery, rape, or murder, is not made worse if it is done for racist motivations than some other vile motivations. The more PC jurors might feel otherwise, I realize.
