Doctor Science Knows

Sunday, September 30, 2007

Is rape a hate crime?

A record of my comments at Amanda's post on "Rape is the grown-up version of pulling pigtails", which started out talking about some of Ann Althouse's commenters but then got actually interesting.

One thing this has made clear to me, when compared to the very learned posts about hate crimes Orcinus often makes, is that the word “hate” in “hate crime” is a legal term of art. “Hate crimes” in the legal sense are a form of “terrorism”, and the perps don’t have to feel hate in the emotional sense, any more than the victims of terrorism have to feel “terror” (as opposed to, say, anxiety or anger or grief).

I suspect Dennis is correct, and many rapists don’t feel the emotion of hate. Nonetheless, rape may often be a “hate crime”, an attack on a person for being a member of a particular group, and with the goal of controlling that group as a whole.

The best blogging about hate crimes is probably by David Neiwert aka Orcinus. Here’s a post on why hate crimes are not thought crimes, for instance.

Making something a legal “Hate crime” is not thought-policing any more than defining first- versus second-degree murder is thought-policing. Hate crimes statutes do not change whether something was a crime at all, it just changes how the crime is prosecuted, punished, and categorized.

I don’t think anyone has thought yet about where the line between “hate crime” and “underlying crime” lies with regard to rape.

[warning: thinking things through here.] Rape with the motive & rhetoric of “keeping the bitches in their place” is IMHO (not a lawyer, blah blah) certainly a hate crime. Rape within a relationship probably doesn’t count as a hate crime, *but it functions as one*.

Most rape functions as a hate crime, because it is part of pervasive patterns that frighten and constrain particular groups of people (men in prison, all women). The sense of individual entitlement rapists have is of a piece with group entitlement. The personal *is* political.

So frex, a street harrasser (”hey lady! show us your tits!”) is to a rapist as a kid who hangs a noose on a whites-only tree is to an actual lyncher. The harrasser and the kid both have a sense of personal entitlement — this is *mine*, I can do what I want, you have to be nice to *me* — that is enforced by other members of their entitled group.

More info to consider about whether rape is usually a hate crime: Orcinus on how it feels to be the victim of a hate crime.

Hate crimes can cause victims to view the world and people in it as malevolent and experience a reduced sense of control

What we also know about the victims of bias crime is that they are substantially harmed well over and above what befalls victims of the simpler versions of the same crimes, perpetrated with ordinary motives (what is known as the underlying or “parallel” crime behind these acts, such as simple assault, vandalism or threatening); for instance, some studies have found that bias-crime victims often experience post-trauma psychological stress syndromes similar to those experienced by rape victims, because the sense of violation can be so profound. The result is a commingling of shame, fear and rage.
Note that this implies that rape is not a simple, “parallel” crime like murder.
There is also a secondary level of victimization that can occur with hate crimes: they create a fear of exposure

— parallel to the traditional (and not unreasonable) fear of rape victims that their sexuality will be dragged through the mud if they come forward.

Differences: Hate crime victims are not usually personally known to the perp(s); rape victims are usually known. Hate crimes often involve grotesque, excessive violence; rape doesn’t *usually* involve that level of escalation.

So, how ’bout we follow Orcinus’ current practice, and say “bias crime” instead of “hate crime”. One of the issues that’s not clear to me is what the default or simple mens rea of rape might be.

Some rapes are certainly bias crimes. What kind of rape is *not* a bias crime? Are bias crimes against women for being women covered under bias crime law? They certainly aren’t in practice. Are they so common that, even if law enforcement was willing, they can’t be enforced on a practical level?

Dennis asked:
Is a hate crime a crime that relies on hatred or disenfranchisement of a class (be that class women, children, blacks, the poor, the elderly), or is a hate crime a crime that requires the dehumanization of an individual victim?
My understanding is that hate crime in law is only the first. Pretty much *any* crime against a person falls under the second class.

Further, I don’t think it’s useful to elide the difference between bias crimes (Hate Crimes Class 1) and dehumanization crimes (Class 2, or Crimes of Hate). More strongly, I think it’s actively bad to say all Crimes of Hate are Hate Crimes, because that tends to conceal the political inside the personal.

Hate Crimes are structural, they reinforce each other, in a way that Crimes of Hate do not. That’s why it’s so hard to find examples of rapes that are not Hate Crimes: because the societal bias against women is so pervasive that an individual rapist doesn’t have to hate women very much extra, he doesn’t run the risk of standing out.

Not building on anything specific that's been said, just getting it out there (as I put together a blogcomment record for my own blog):

I hadn't realized until I went searching for a good link how much Orcinus and other people who track or study hate crimes use rape for calibration (or as a baseline?). Hate crimes are crimes that feel like rape, that have many of the same effects as rape, that are at least as bad as rape. I don't know if they're consciously thinking of rape as a hate crime, but it's there in the background -- as the most *familiar* hate crime, the one that's hardest to notice.

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