Tagged: mens rea
Law 29: Demonetizing Bin Laden
Buddhism is the true religion of the Bharatiya Janata Party (BJP). Let me explain. Gautama opposed the caste system and was attacked – although not persecuted – by the Brahmins. Since then, Savarkar (1883-1966) and other proponents of Hindutva ideology have played down the caste system, to the point of presenting it as a deviation from true Hinduism or Hindutva. Therefore, as they oppose the caste system, they must be Buddhists, unless they are Westernized revisionist brains.
Demonetizing Bin Laden
“Center [Indian Government] had justified the decision of demonetization stating it was taken to crack down on fake currency, black money and terror financing.” (Hindustan Times, YouTube, Jan 2, 2023)
Some governments can’t take any action without justifying it by a necessity to fight terrorism. A potent justification as far as illiterate mobs are concerned, certainly. In 2019, EU stopped issuing its 500-euro banknotes, the highest euro note; these were called “Bin Ladens” because they were allegedly used in criminal transactions (and Western media know of no other criminal than Bin Laden, although mafias have been thriving all over the place for decades). 500 euros is about 45,000 Indian rupees, and one can understand that transactions that must remain cash (because they are unlawful) need high-value notes, but what proportion of “Bin Ladens” were used by Al-Qaeda compared to mafias? – India fighting terrorism with excavators (demolishing for encroachment the property of alleged terrorists running free [see Law 28: “Bulldozer Crackdown”]) and demonetization…
However, Modiji demonetized 1,000 INR notes to replace them with 2,000 notes†, that is, he replaces high-value notes by even higher-value notes. Criminals need cash for their high-value criminal transactions. You and I need cash for groceries; for more expensive purchases we usually make bank transfers. The 2,000 note is evidence that the demonetization has nothing to do with war against crime.
“People seeking to exchange their banknotes had to stand in lengthy queues, and several deaths were linked to the rush to exchange cash. … The move reduced the country’s industrial production and its GDP growth rate. It is estimated that 1.5 million jobs were lost.” (Wkpd: Indian banknote demonetization) Congratulations, Modiji!
†To be quite precise, demonetized 500 and 1,000 INR notes were replaced by new 500 and 2,000 notes.
The Delhi Car Drag Case
“Delhi erupts in rage after car drags woman for 7 kilometers; Murder or accident?” (Hindustan Times, YouTube, Jan 2023)
Some constitutional considerations
“Delhi chief minister demanded death penalty for the accused.” In all countries, it would be senseless for a member of the executive to tell courts what their decision should be, at any stage. But to demand death penalty is even more senseless in India, where, although death penalty exists, only eight executions have been carried out since 1996, that is, death penalty in India is a mockery.
Delhi CM’s demanding a death sentence for what has been said, so far, to be an accident, is senseless. But given Indian Supreme Court (SC)’s decision Bachan Singh v State of Punjab (1980), even if it is, in fact, a gruesome murder, the demand would still not be in line with actual law, that is, said decision, which limits death sentence to “rarest of rare crimes.” These include crimes involving the “security of the state” and I therefore disagree with SC’s ruling. There exists no reason to make a difference between crimes based on state security. Such a line simply cannot be drawn, unless it means that the life of a public official has more value than ordinary citizens’ lives, or something like that – an abhorrent idea.
Delhi CM talks in the present case of “rarest of rare crime” indeed, the condition for a death sentence. According to the Indian Supreme Court, there is a rarest of rare crime when, to begin with, a “murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.” This cannot be a valid definition. Murders committed in anger or fear are usually more brutal and violent and dastardly than premeditated murders committed in cold blood, and yet it is a well-established principle that premeditation makes a crime more heinous. By emphasizing the graphic element of a crime, the definition overlooks other major aspects, just like a mob reacting to a crime.
In fact, the attempt by SC to define “rarest of rare” contrives a definition that denies the very name “rarest of rare”: “[I]f the motive betrays depravity and meanness, or if a backward or minority community member is killed not for personal reasons but to arouse social wrath, the accused should get death. Other crimes which technically fall into the rarest of rare cases are bride burnings and dowry deaths, a child victim, the assassination of a public figure for political reasons [security of the state, discussed above], or killing a defenseless person because of old age or infirmity.” Hate crimes, political crimes, infanticides, etc. Such a large definition for rarest of rare?! – Given that among the only eight people executed since 1996 in India, we find rapists who later killed their victim, one is bound to think, unfortunately, that rarest or rare are the cases properly brought before a court.
Two female friends, Anjali and Nidhi, left a hotel at 1:30 am on a scooter. Later, street cameras show Anjali’s body dragged by a car. Crowds rioted in anger when they learnt police reported the incident as an accident.
It looks like an accident, but even so the men in the car would be culpable of hit-and-run and manslaughter.
Had the men stopped the car after the accident, the car would not have dragged the body. It remains to be seen if a car can drag a body with the occupants not noticing at once; experts will tell.
a-a) Passengers’ v. driver’s responsibility
There is 1) the accident but also 2) the hit-and-run. The other occupants of the car beside the driver would have to convince a court they did their best to prevent the hit-and-run, otherwise they are accomplices in it. If they failed to report the incident, in all likelihood complicity will be retained.
If a car passenger does not report to police after the incident (without good reason), he will be presumed to have supported the hit-and-run. What if they are all caught while still in the car? Obviously, a passenger cannot stop the driver without risking an accident, so if one passenger urges the driver to stop and the driver won’t listen, there is probably not much else the passenger could do; in this case, I think the passengers should not be presumed accomplices. Passengers can stop a driver but there is always a risk of accident, as the driver is in control of the car.
If all passengers were stoned from alcohol or otherwise, and didn’t even realize there was an accident, then again, they are not accomplices.
When actor Salman Khan’s chauffeur was found guilty of a hit-and-run while Salman, as passenger, got away with it, I assume the court had good reasons for a decision I find counterintuitive, because Salman was the boss, and the chauffeur his employee, so at first I would assume Salman gave his chauffeur the order to keep driving rather than the chauffeur took Salman “hostage.” But perhaps the chauffeur was so afraid of the consequences of the accident that he did not listen to his boss urging him to stop the car. Possibly.
This is not only an accident but also a hit-and-run, and not only a hit-and-run but also manslaughter. The difference with murder is that the driver and passengers probably didn’t intend to kill Anjali by dragging her, they had rather hoped the body would detach, alive, from under the car so they could drive away, released from this “burden.” However, the drag was an act of violence causing injuries that resulted in death: the definition of manslaughter.
Someone (a YouTube user) said “[accused] having knowledge” is enough in Indian law to characterize murder, “not only mens rea” (a legal term for “intent”). Knowledge of what, he did not tell, but I think I can connect the dots, and that puzzles me because it means Indian law has no proper distinction between murder and manslaughter, which, if true, would be a shortcoming. In the present case, for instance, the men probably knew they were committing a violent, potentially lethal act, but death was not their intent (mens rea); their intent was more likely to have the body released from the car or the car released from the body, although, in their recklessness, they were certainly aware this could provoke death.
Delhi CM, who demands a death sentence for them, seems to have another appreciation of the facts; he may think they dragged a person unknown to them with the purpose of taking her life, that they had a design to choose a random prey to torture and kill her or took the opportunity of an unexpected traffic accident to satisfy murderous instincts and they enjoyed it. But neither the chief minister nor I is a judge of the facts. The jury will settle it. In the meantime, as the chief minister talks his mind, I assume I can talk my mind too.
The facts of the case as known so far from reports by Indian media seem to point to manslaughter rather than murder, unless the men knew the victim, a point the police said they are investigating. If the men knew the victim, the police may find biographical elements in their relationships that could constitute a plausible mens rea for murder, for instance if they bore her a grudge for some reason or other. Absent a previous relationship, there seems to be no other possible mens rea other than, for instance, a murderous mindset oriented toward random gruesome acts (but if the men don’t have a criminal record, this will hardly obtain, unless a psychiatric report points to the same) or a hatred for women that would make the case a femicide, a hate crime (which the Commission for Women has hastily presumed without, in my opinion, good reason, if not the assumption that Indian males, or all males, are prone to roaming streets for killing women – but is this assumption or prejudice? To be sure, Anjali’s clothes were torn by the long drag, and this could make think of rape.)
c/ Police conduct
As for police conduct, which has been questioned, we heard that a first police report talked of an accident, and this triggered street demonstrations or riots. If there was only “accident” in this report, then truly the report seems light, as a hit-and-run was also obvious. But a hit-and-run is not yet, per se, a murder/manslaughter either. Assuming the report was about accident and hit-and-run, one could still be puzzled and ask: How did the men not notice there was a body under their car? I have been watching Indian channels on YouTube these last days, and since the Anjali case surfaced, already two other car drag incidents occurred in India, as in Hardoi (Uttar Pradesh) yesterday, Jan 6, when a cyclist was dragged by a car over one kilometer before the driver stopped. On videos, we see pedestrians rushing toward the vehicle to alert the driver that he was dragging somebody; apparently, the driver had not noticed it at once. In the Delhi case, I read some people say a “decent” driver’s not noticing is impossible, but is it so certain? For one, it probably depends on the condition of the roads: where a car ceaselessly bounces up and down due to the road’s unevenness, it probably takes longer to notice the presence of a dragged burden under one’s car. Nevertheless, in case police did sloppy work, this is not evidence of coverup yet rather than incompetence or neglect. Even if police try to protect a politician among the car passengers (or is he the driver? – One of the accused is a local BJP politician), Nidhi’s interview in front of cameras can be of no help in that regard, as far as I can see, contrary to what is said by some: Nidhi’s testimony as we know it (see iii) can’t cast the least shadow of a doubt on the main facts, unless something escapes me. If the testimony can’t change nothing in that respect, I fail to see why police would have staged it.
Assuming police are trying to protect the BJP politician, their best asset for this at the present stage would be Nidhi, that is, they would shift attention from the men to Nidhi. She would be the one responsible for the accident and the men would have noticed nothing, neither the accident nor the drag, they’re cleared. If police staged Nidhi’s interview, as some suggest, they would have knowingly induced her to tell lies, such as “Anjali was drunk and I wasn’t, and yet she insisted to drive” which would, unanticipated by her, later be dispelled by forensic expertise (no alcohol found by the postmortem) and cast serious doubts on her personality. Therefore, if the claim is police interference, insistence on charging Nidhi is not quite consistent, because Nidhi’s words may have been staged: apparently an attempt to clear herself but in fact a trap diabolically laid for her by police.
The victim’s friend
Nidhi was witness to a hit-and-run that would likely result in homicide, seeing Anjali dragged away under a car. She probably ran for her life, thinking: “If these monsters notice me, a witness to their crime, they’ll want to kill me too, so indifferent are they to strangers’ life.” Then she went back home. Why not to the police? At 2 am in the morning, the safest was straight home. Perhaps she didn’t even know where the police station is, nor was there anybody around to tell her, or she didn’t dare ask, for that would have shown she was helpless and men could have raped her. And she didn’t have police number on her phone: who cares about that at 20 something? So, Hindustan Times says she went home, probably thinking of asking for advice. She then did nothing for the next two days: if this means she reported on her own initiative after three days, then she finally reported. Why so long? Perhaps the first day she was completely out of her mind, then the second day she thought it was already too late and she hoped she would escape investigation, and the third day she had remorse and reported.
But Nidhi’s behavior is a secondary and minor question, just as the accident is secondary in importance to the possible crimes, hit-and-run and manslaughter. Absent further elements that may surface later, in the previous paragraph I attempt an explanation. Some added in the meantime elements about her criminal record (drugs), and the hypothesis that she hid for two days to allow time to erase traces of alcohol or drugs in her blood (she would have been the one intoxicated and not, as she said, Anjali). But all in all, it is not clear how her behavior could be of great relevance to the main issue, unless one nurtures the idea of a premeditated murder of Anjali in which Nidhi would be implicated. Even if Nidhi were found liable for not reporting and/or the accident (cf. the allegation that cameras show she had her hands on the handle a few moments before the accident), that wouldn’t change the elements regarding hit-and-run and manslaughter.
The Commissions for Women
Does the National Commission for Women make a statement each time a woman dies a violent death in India or is there something special here?
The Commissions for Women, national commission and Delhi commission, add fuel to the fire; I now suspect one or the other instigated or incited the riots, or at least provoked them by making provocative statements. Who first claimed it was a femicide, with rape and what not, in defiance of the police report? (Anjali’s clothes were torn due to, according to expertise, the drag, but as the body was half-naked people at the CW thought it likely was a case of rape and murder.)
Delhi Commission then sharply criticized Nidhi’s interview and threatened her with legal action for her “character assassination” of Anjali (who Nidhi said was drunk and yet insisted on driving the scooter). Is it character assassination when Delhi chief minister demands death penalty for the men in the car, who are still presumed innocent (like all accused before a judgment)? Is it character assassination when one or the other Commission for Women spins a femicide yarn out of thin air? Bureaucrats would be the only ones allowed to talk? – I think the Commission for Women is embarrassed by their femicide spin in defiance of the preliminary police report. So-called “character assassination” is allowed in a trial and then (in a trial) it is no slander: when you are accused of something, you are allowed to defend yourself, and that may mean to shift responsibility onto others’ shoulders. (Of course, if you are found to be lying, your defense will be disregarded.)
“Rave Parties in Saudi Arabia: Crown Prince MBS Stuns the Old Guard with Modernization Push.” (Hindustan Times, YouTube, Jan 2023)
At the same time, Italy criminalizes rave parties. In Italy now, organizing a rave party will owe you up to six years imprisonment. The law has just been passed. Italians have had enough and know better than MBS.
Rave party means hundreds or thousands of people gathered in the dark with loud music covering everything. Alcohol and drugs will circulate uncontrolled in Saudi raves because tourists are now welcome in the Kingdom, which delivered no tourist visa until a couple of years ago. But the main concern is probably the opening of the land of Islamic holy sites to cultural forms that are increasingly considered, in the very West where they originated, as repellent and degenerate, even if rave parties did not imply invasion of property and noise pollution on several square kilometers, so much so that it’s just got banned in Italy.
I don’t know the rules about alcohol and tourists in KSA; I only know the United Arab Emirates (UAE), where tourists can get alcohol at hotels and private homes. I am told the rules are not the same. However, KSA, the new tourist destination, will likely follow UAE’s example, for you can’t invite a drunkard to your place and deprive them of their booze.
P.S. “Woman Who Went Topless After Argentina’s World Cup Win Escapes Arrest in Qatar. An Argentine woman, seen flashing in videos from the stadium, has appeared to have escaped any action.” (News18, Dec 22, 2022)
One of the strange things about the moon is that, while you need launch pad and rocket to escape Earth’s atmosphere, it only takes a little aluminum foil bug to escape the moon’s. I know gravity is not the same but you’d almost believe a man will get lost in the lunar skies instead of remaining on the lunar surface, so easy it is to escape the satellite’s atmosphere.
“China Restarts ‘Mission Nepal’ Against India. A purported China dove has been made Prime Minister.” (Firstpost, YouTube, Jan 2023)
A combined invasion of India by China and Nepal would be dramatic for India.
A medical use of cannabis was contrived as a wedge for recreational use. At Woodstock, no one said a word about medical use but they had a lot to say about recreational or existential or philosophical or whatever use. Medical use was contrived by people who had smoked weed at Woodstock and were looking for a way to make their new pastime accepted by society. That is, they perjure the Hippocratic Oath. From recreational and illegal to medical to recreational and legal.
The Air India Flight’s
Urinating and Indecent Exposure Case
“Drunk man on Air India’s New York-Delhi flight urinates on woman co-passenger.” (HT, YouTube, Jan 2023)
The regulator wants sanctions against the “negligent” cabin crew, but pay attention that the crew is also a victim of the indecent exposure (“After urinating, the man continued to stand there, exposing himself”), even if they were not urinated upon (this a crime I am unable to define legally at this stage, having no example in mind). Air hostesses and even stewards were in a state of shock, as victims themselves, and could not properly handle the passenger who was shamelessly exposing his parts to them. All in all, I think the National Commission for Women should make a statement.
The indecent exposure dimension of the incident has been completely played down so far and this is shocking in its own right. Crew hostesses have a right to damages, just like the lady who was urinated upon in addition to damages for being urinated upon. Indecent exposure is in the Indian criminal code (sadhus being outside the purview of the considered section). Therefore, you can’t sanction the crew as if they had not endured something foul themselves.
“Indian criminal code is not applicable in aircraft flying over foreign airspace. Also, if the man is a foreign citizen and he urinated when the aircraft was flying over foreign air space, then India does not have any jurisdiction. It is the country in whose airspace the aircraft was when the crime was committed, that has the right of jurisdiction and the right to conduct investigation and trial in that country’s court and punishment in that country’s jail.” (B.) – It is the Indian national regulator wants sanctions against the “negligent” crew; therefore, I assume the sanctions must be taken with due consideration to Indian legislation.
The crew evidently reported the incident to their management, and it is the managers who didn’t report. One must not confuse two different things: 1) the handling in the cabin of a crazy man who was a danger to everybody. If you think that intentionally urinating on people is common and does not betray an altered, potentially dangerous state of mind, just let us know. Then, 2) the report to authorities, and it is the management or direction’s duty, because clearly this kind of decision is deferred to the latter. I am therefore confident the company’s management or direction will be sanctioned for not reporting the dreadful incident to authorities and the cabin crew will get damages for being harassed by a sex freak.
Had a steward knocked the freak out, he would be the one prosecuted, for assault and battery. And the crew are not pledged to protect from piss a passenger’s body with their own bodies. “Preventing this [a crime] from happening,” as a YouTube user wants it, by “pinning him [the freak] down” is no more the crew’s than the passengers’ responsibility, it’s called a citizen’s arrest. If their employment contracts include arrest power, like contracts of bouncers in nightclubs, then all right, the cabin crew may be sanctioned, but I doubt the contract of an Air India hostess includes such things.
Insult To a Foreign Head of State
and French Hypocrisy
“Iran threatens France over Charlie Hebdo’s ‘offensive’ cartoons of Khamenei.” (HT, YouTube, Jan 2023)
“U.S. backs France on freedom of expression.” Why did U.S. not stand up for freedom of expression when French President Macron filed a complaint against a poster depicting him as Hitler? (See Law 27) Was there no concern about freedom of expression then? Let’s wait and see French government’s response to Iran, but if their answer is that freedom of expression is guaranteed in France, I urge the media to ask them why Macron lodged a complaint when he saw a picture of him as Hitler, and several other instances of executive attempts at stifling speech.
As far as hate speech is concerned, it tends to be permitted in France to abuse Islam, but not other communities. This is the problem, which in fact makes Iran’s overall position not contrary to freedom of speech as far as France is concerned, since their demand amounts to asking the same legal protection from hate speech for Islam as other communities have in France, that is, to stop discrimination against Islam. If France is a free-speech country, then Iran’s demand is that France be a nondiscriminatory free-speech country.
French law represses speech, make no mistake about it. As to the present controversy, there was in France a crime of insult to heads of foreign states (like Ayatollah Khamenei) until 2004, after France was condemned for this legislation by the European Court of Human Rights. But as with the specific crime of insult against the national President, which was cancelled in 2013, again after a condemnation of France by the ECHR, and replaced by the more common crime of public insult, a foreign head of state is still allowed to sue people in France for insulting them. This is to let Ayatollah Khamenei know that French laws unreservedly support his concern, and he is welcome to sue Charlie Hebdo and ask for damages.
The saffron bikini in Pathaan movie, which has aroused anger among Hindus, is a useless provocation. Artists must pay heed. The ire was certainly anticipated by all in the business and yet they did not refrain. An excuse such as “We thought the color was nice for the dance scene” would be frivolous; another color, less charged with sensitive symbolism, would have been as fine. So why?
Saffron bikini v. national flag bikini
Excerpts from All India Roundup, Aug 13, 2015: “10 celebrities who insulted the Indian national flag.”
“[Tennis player] Sania Mirza was pictured sitting with her bare feet that appeared to rest on a table next to an Indian flag. Isn’t [it] shameful!”
“[Cricket player] Sachin Tendulkar was accused of insulting the Indian flag, when pictures of Tendulkar celebrating his birthday on March 2010 by cutting a tricolour cake went viral.”
“Back in 2000, designer Malini Ramani also landed herself in trouble when she wore a flag dress.”
“Bollywood’s bold actress Mallika Sherawat got embroiled in legal trouble when she draped herself with the tricolour.” [She was nude but draped in the flag.]
“King [Shahrukh] Khan was booked by Pune police for allegedly insulting the national flag. He was booked on the Compliant of LJP national secretary Ravi Brahme that SRK allegedly insulted the tricolour in a video uploaded on youtube.”
“However small-time actress and model Gehna Vashisht must be severely condemned for her indecent act and was rightly taught a lesson by the people by wearing a tricolour like a bikini.” [She was assaulted by an angry mob and then arrested by police.]
“A case was filed against Bollywood star Amitabh Bachchan for covering his body with the national flag in a manner insulting the national flag.”
“Narendra Modi…has been accused of insulting the national flag by a social worker of Pondicherry, who has lodged a complaint against Modi for wiping his face using the tricolour scarf he was wearing.”
So much sensitivity over national symbols in that country, but saffron bikinis are okay even though saffron is also a symbol? If those complaining about a national flag bikini don’t see a problem in a saffron bikini, they are double-faced.
“‘I killed 25 Afghans and I am not sorry’: Prince Harry’s chilling confession.” (HT, YouTube, Jan 2023)
If HT got its content from the leaked Spanish version, I think there is a translation mistake. Prince Harry did not “serve in the army,” the army is serving him as hereditary Prince of the British Kingdom. However much I would like to think he is a citizen like the others, and a soldier like the others, the medieval concept of his hereditary function is an obstacle to such a feeling. I might not be the only one.
Prince Harry is the only one thinking he did war like the others. Come on, guys, break the news to him. – I will believe a British Prince did a soldier job when he dies on the front, but it never happens.
Any military command knowing what military intelligence is would never send such a sensitive target on a military front. Imagine the Taliban getting intelligence that Harry is in chopper #9: all Taliban rockets on the spot would be for poor Harry. No, he must have comfortably enjoyed his trip across the beautiful land.
Law 24: On Hate Crimes and Love Crimes
2 Preliminary Dismissal of Deceptive Appearances
In Europe they have hate crime laws, hate speech laws, and police states. (Cf. City of Houston v. Hill, U.S. 1987, holding that “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” By this well-thought definition European countries are not free nations but police states indeed.)
In U.S. they only have hate crime laws.
What makes hate crime laws so unexceptional?
“Hate crimes are offenses that are committed because of the actual or perceived race, color, religion, national origin, or sexual orientation of another individual or group of individuals. … Various state courts found that, since the U.S. Constitution’s First Amendment protects speech and thought, even when that speech or thought is offensive, any law criminalizing thought should be rendered unconstitutional.” (Hate crimes by Kristin L. Stewart, J.D. [excerpt] in Encyclopedia of American Law, D. Schultz ed., 2002)
If a crime is found to be this or that “(name a crime) as a hate crime,” penalties are increased.
2 Preliminary Dismissal of Deceptive Appearances
Contrary to appearances, hate crime laws in the United States are probably not designed to protect the white population from black criminals. How, then, could such appearances have arisen?
First, we are told about an epidemics of hate crimes. “If you believe the news, today’s America is plagued by an epidemic of violent hate crimes” is from the presentation of the book Hate Crime Hoax: How the Left is Selling a Fake Race War (2019) by Wilfred Reilly, assistant professor of political science at Kentucky State University.
Second, we know the massive proportion of black inmates in the prison population of the States: cf. The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012) by Michelle Alexander, visiting professor at Union Theological Seminary, New York City.
Third, in Wisconsin v. Mitchell, 1993, the U.S. Supreme Court upheld a hate crime state statute. A group of black men had assaulted a white boy after watching the film Mississippi Burning. It was found their attack was racially motivated and the increased penalty of the instigator, Todd Mitchell, justified.
From (1), (2) & (3), one would swear blacks are responsible for the epidemic of hate crime. Indeed, it is hard to see how a crime epidemic, namely a hate crime epidemic, would not be reflected in the prison inmates population, that is, how the disproportionate numbers of black inmates in prison would not reflect the hate crime epidemic, especially considering the emblematic precedent of the U.S. Supreme Court on hate crime laws applies to a black defendant who challenged the constitutionality of his increased penalty.
This is a deceptive appearance. In reality hate crime laws protect minorities.
Hate crime laws trivialize crime
“This book is as timely as today’s headlines. Professor Lawrence has written a powerful, persuasive, and eloquent call for more effective action by Congress and the states to deal with these despicable crimes. Civil Rights is still the unfinished business of America. Hate crimes are uniquely destructive and divisive, because their impact extends far beyond the victim. They poison entire communities and undermine the ideals for which America stands. They deserve to be punished with the full force of the law, and Professor Lawrence’s book brings us closer to that important goal.” Senator Edward M. Kennedy on Punishing Hate: Bias Crimes under American Law (2002) by Frederick M. Lawrence.
This praise by Sen. Kennedy contains all the appalling mistakes an informed person is supposed not to make when thinking and talking about crime and the law.
“This book is as timely as today’s headlines.”
It is known, it is even common-sense, since at least Roscoe Pound (Criminal Justice in America, 1930), that to resort to designing criminal law in hysterical reaction to headlines is the worst one can think of, it is Lynch mentality smuggled into the legislative bodies and through them into the courts.
Sen. Kennedy’s is the confession he was a headline-law maker, one who made headline laws. With lawmakers like him, it is headlines which make laws. Yet no one knows what the headlines reflect (a few people believe they reflect reality). If media were neutral reporting agencies, then, given what has been said in II about New Jim Crow, media treatment of crime would reflect the makeup of prison population (because prison population is a good token for the known figure of crime), that is to say the media would devote the same share of crime news to black crime as the share of black inmates population in prisons. Is this the case?
If this is not, even if it were because the media are not racist whereas lawmakers, the police and the judiciary are, it turns out they make their headlines according to their own notions rather than to an actual state of things. If the state of the society as far as crime is concerned is institutional (colorblind) racism, i.e. a New Jim Crow, and the media correct this because they go against the stream, then admittedly their headlines are no different from political pamphlets; therefore legislators are not bound to take their headlines as guidelines, any more than they are to follow the views of any scholar, intellectual, or writer.
The same holds with the media coverage of hate crime. Sen. Kennedy wants to legislate in a “timely” fashion, following the headlines. Given what has just been said, however, he is nothing but the willing audience of a hate crime law lobby, whereas the true situation might or might not support a need for new or further legislation. Obviously, if the coverage is a hoax (Wilfred Reilly), no legislation is called for by the timely headlines. (Needless to say, the notion of timely headlines is absurd: Reread the sentence and you’ll see Sen. Kennedy actually talks of timely headlines; however there is but one timely time for news headlines.)
“These despicable crimes”
Which crimes are not despicable? Crimes that a senator is more likely to commit, like embezzlement?
“Hate crimes are uniquely destructive and divisive, because their impact extends far beyond the victim.”
That the impact of all crimes “extends far beyond the victim” is on the contrary the obvious truth, one at the foundation of the secular distinction between tort law and criminal law, and hardly, therefore, could a premise be more unsupportive of the conclusion, namely, that hate crimes are unique.
“They poison entire communities and undermine the ideals for which America stands.”
One would swear other crimes are mere trifles.
“They deserve to be punished with the full force of the law.”
Yes, like any other crime. Actually, a good axiom of jurisprudence is that crimes deserve to be punished with the full force of the law. Accordingly, since every crime is punishable by the full force of the law, one cannot make a difference between one crime and the same crime “as a hate crime.”
If such a difference were legitimate, it would actually imply a decrease in penalties for hate crimes.
Hate crimes are crimes of passion,
therefore the penalty must be decreased, not increased
Here come the love crimes.
I had intended the word as a joke. I thought: If one talks of hate crimes, there must be love crimes too, which is absurd. Then I remembered the crimes of passion (crimes passionnels): “The ‘crime of passion’ defense challenges the mens rea element by suggesting that there was no malice aforethought, and instead the crime was committed in the ‘heat of passion’.” (Wikipedia: Crime of passion)
Crimes of passion are what I would like to call the love crimes. Love is a passion. Hate is no less a passion than love –sometimes love turns to hate– and therefore, as the crime of passion defense applies to love crimes, the defense applies to hate crimes too.
Think about Todd Mitchell, the black defendant in Wisconsin v. Mitchell who “instigated an attack against a white young boy.” He had just been watching the film Mississippi Burning, which stirred the rage of oppression in his heart, to the point he could not stand it anymore. His brothers and sisters in race had been enslaved, trafficked, segregated, Jim-Crowed for centuries. Hatred was stirred in him, his spirits cried for vengeance. A young white boy walked by.
Even if Mitchell had been animated by an ideology, by the liberal ideology that cannot stress enough the evils of a system and the burden of debt currently weighing upon the white man till the end of times, even if he had been an avid reader of liberal books, still his deed would not be an ideological crime –because there is no such thing under the U.S. Constitution, which protects freedom of conscience– but a crime of passion.
(Even the minutest premeditation in coldest blood could be a crime of passion, I find, because hate is a passion, just like the cheated husband who premeditates his wife’s death could invoke the defense in my eyes, because from love to despair time may elapse but the heat of passion remains, the heat of passion is not the same thing as the heat of the moment.)
But the Supreme Court –Rehnquist Court (surely this rings a little bell)– did not see a liberal black boy under the dramatic and melodramatic influence of a Hollywood blockbuster stuffed with the most advanced techniques of emotions and mind manipulation, no, and “the Wisconsin statute…was not punishing the defendant for his or her bigoted beliefs or statements, but rather the predicted ramifications of his or her crime” (oyez.org). Mark these words: A hate crime law does not punish a defendant for his or her bigoted beliefs or statements. I have no idea what the Court, or its commentator, means by “the predicted ramifications of the crime” and as I have not read the whole decision yet I reserve my judgment, only saying it looks like a mighty innovation in the field of criminal law and I’m surprised it is not more discussed in academia and among advocates of hate crime laws, who keep saying, instead, that hate crime laws punish bigoted biases (one also talks of bias crimes).
So very true is it that hate crimes are crimes of passion that it is even positive law in the gay panic defense. A man subject to homosexual advances may react violently with assault, battery, murder attempt, sometimes the seducer’s death. The defendant can invoke gay panic defense at his trial and if the motion is accepted his act will be treated as a crime of passion. As the reader can well imagine, statutes to that effect have disappeared from about every legal system in the western world, and now the same acts are likely to be treated as hate crimes with increased rather than decreased penalties. (Likely because how could such a reaction not be the sign of strong biases?)
Hate crimes are crimes of passion
and like other crimes of passion they have no place left amidst our laws
Today crimes of passion are hardly law any longer. A man finding his wife with another man will shoot them and then kill himself, and perhaps his kids in the bargain, because he knows society will not pardon him the heat of passion. He knows only cuckolders are excused nowadays.
As one, therefore, sees crime of passion laws dwindling, one must draw the consequences as to the notion itself, which includes hate crimes. Hate crimes can have no place amidst our laws.
Hate crime laws shift the tendency of regimes from majoritarian to countermajoritarian
In aristocratic regimes, the nobility is a minority too.
If one agrees the purpose of hate crime laws is not, contrary to appearances, or not only to hold the grudge of black people against whites for a past of slavery and unequal segregation in check, then one must consider the following reasoning.
Hate crime laws are designed to protect minorities from the violent manifestation of biases. That minorities would bear a natural grudge against the majority for the latter’s entrenched position and status does not seem to ever enter the mind of advocates of bias crime laws and I have never heard one such advocate express concern for the safety of individuals in the majority due to a grudge of this kind. Yet it occurs to me that, if I belonged to a minority and the majority had privileged status in the society, I would resent the fact. In case I expressed my resentment with violent acts, that would be hate crime then, would it not? But no, we are never told of such psychological problems; one has to know the U.S. Supreme Court’s decisions to be aware that anti-white feelings can be a bias, and in some European countries you would look for the same kind of precedent as Wisconsin v. Mitchell in vain (but not because such crimes never happen).
All in all, one can safely bet that a risk of increased penalties exists above all for crimes where victims are from minorities. Therefore, if a criminal who is neither a hate criminal nor a love criminal, only an indifferent criminal who wants money, thinks –and I claim the media and politicians have inoculated this thinking in him– that he risks increased penalties if his victim belongs to a minority, then the obvious consequence is that he will avoid picking a victim among identifiable minorities and on the contrary target individuals from the majority. Hate crime laws point to the majority as self-evident victim for “passionless” criminals. Clearly, a government must have strong countermajoritarian mechanisms to be able to pass such laws – to the point that one wonders what role is left to its majoritarian mechanisms.
Hate crime laws are hate speech laws
This section is divided in two parts (a) and (b), the former being the mere quote of an earlier writing, Hate crime laws are unconstitutional (Law 20).
a/ Hate crime laws are unconstitutional view-based discrimination.
It’s time the courts declared hate crime laws unconstitutional. This is long overdue. How can hate speech be protected as the U.S. Supreme Court intends (Brandenburg v. Ohio , R.A.V. v. City of St. Paul , Snyder v. Phelps , Matal v. Tam ) when public figures known for taking positions some call hate speech must always fear being provoked to offenses, even minor, that would lead to aggravated punishment while the opponents who provoked the incidents have no such Damocles sword hanging over their heads?
Let’s take an example. If a public figure vilified by LGBT groups as a hater gets entangled in a brawl with LGBT hecklers, he may face hate crime charges while the others will face unruly behavior charges or such like (they are not known for being haters because they’re the ones who call people haters and the media follow that stance).
The “haters” (who have a constitutional right to hate speech) are at greater risk of frame-up because for them even the slightest charges can be greatly detrimental due to the increased penalties with which hate crimes are dealt with. Hate crime laws protect a minority heckler’s veto. Due to such legislation, whole classes of people are therefore deprived of their full rights to political participation for lack of equal protection under the law. This is government repression of political opponents.
b/ Hate crime laws are conceived as disguised hate speech laws.
Discretionary police and prosecution power serves to squelch speech in scores of contexts, by making pretextual use of laws against disorderly conduct, trespass, unlawful assembly, disobeying a lawful order (like orders to move or keep moving), breach of the peace, and other such low-level criminal statutes, and scholars point out the failure of courts to address the issue properly.
The issue must be of increased concern when to low-level incriminations may be added the hate crime label. Since there have been various cases of “petty larceny, as a hate crime,” one can well imagine charges such as “trespass, as a hate crime” or “disobeying a lawful order, as a hate crime.”
Often, in the usual cases, charges are dropped, and the victim of malicious policing is no more heard of. In the case of hate crimes there could be no dropping of the charges, for obvious reasons. Therefore, since police power can be used to squelch one’s speech and the courts have no sure means to second-guess the discretionary use of police power (filming police on public space is a hazy legal issue: don’t you fancy it be a well-established right), I believe advocates of hate crime laws intend to take advantage of the situation to have hate crime laws serve as hate speech laws. I believe it for the simple reason that if hate speech laws were not unconstitutional these are the laws they would demand. We have seen it in Europe: the same rhetoric used in the U.S. in support of hate crime laws is used in Europe to advocate hate speech laws.
So long as hate crime laws exist, the U.S. is at risk of becoming –if not being already, through the judicially undetected, pretextual use of executive discretion– a police state like current European Old-World regimes.