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On Wednesday, December 6, 2012, at 5:44am, a white guy leapt on a South Asian man in the train station in Champaign, IL, shouting something about this being his (the white guy’s) country—exact verbiage hasn’t been clear.

The white guy, identified by local news outlet the News-Gazette as 23-year-old Joshua Scaggs of Fithian, IL, then proceeded to choke the non-white guy, identified as University of Illinois law professor Dhammika Dharmapala, and cut him with a utility knife, opening a “six-inch cut on his throat which bled profusely.”

Scaggs was arrested for a hate crime, but ultimately charged with “attempted murder and two counts of aggravated battery”; the prosecuting attorney “opted not to file it [the hate crime charge] because the other charges carry heavier penalties and he’s confident he can prove the aggravated battery based on the information he has.”

Clearly, the hate crime law is not written in a useful way here. It’s not an add-on that increases the severity of any crime, but a separate charge. Somewhere, in an article I can’t find now, somebody involved on the prosecutorial side of this said that usually the hate crime gets prosecuted with misdemeanors like vandalism or theft, indicating that the penalty attached to a hate crime is worse than that but less than aggravated battery.

This was surprising to me, because I feel like most hate crime laws are written as the tack-on variety—”Now, with 15% more sentencing!” And, I don’t know how I feel about that.

I mean, on one hand, the things one is doing while committing a hate crime are generally already illegal. And, as the prosecutor noted in the quote above, it’s often hard to prove intent enough to get a conviction.

Therefore, I’m not totally on board with hate crime legislation. I certainly don’t think that attempts to put it on the books should be the be-all and end-all of activism (you hear me, LGBT nonprofits?), not least because I’m wary of constructing such positions as inherently, unlivably vulnerable to violence in the process.

Though of course, this case seems pretty clear cut. It’s quite evident that “this is my country” meant “it’s not yours” or “you don’t belong here”—and that it was racially motivated. Dhammapala was visibly different from Scaggs’ idea of “his country.” It’s not plain xenophobia, that is, because a German-born person, say, wouldn’t have produced that same visual trigger. And neither would a person of African descent, whether first generation or eighteenth (Slavery in America estimates 12 generations from the first Africans to the end of slavery; says there have been 6 generations since).

So, even though a racist imaginary would think of the default “American” as white, it would also readily identify a black person as American in a way that East Asians, South Asians, Arabs, and Latinos don’t get—as my Asian-American friends who get drunk fratboys ching-chong-ing in their faces or assuming they don’t speak English can attest. So, race is more complex than the usual American reduction to black and white, but it’s still pretty relevant and this was still an attack motivated by racial hatred.

Moreover, the fact that juries apparently don’t buy it when prosecutors argue that crimes were prejudice-based deserves critique as an instance where attempts to redress structural inequalities become figured as “special rights.”

This, then, brings me to the other hand, which is that it is structural inequality that makes hate crime possible. Some people are seen as less important, less worthy, and indeed less human than others, and—when you get somebody crazy enough—members of certain groups make more cultural sense as targets. Given that, a structural solution seems reasonable.

That is, though I’m not sure anyone has ever shown that increased hate-crime penalties serve as a deterrent for people who for whatever reason translate social devaluation into a hunting license, it does make a statement that, as a society, we don’t find such hunting acceptable.

In this way, hate-crime legislation, simply by existing, perhaps lessens the devaluation that starts the cycle. The challenge, then, is to prevent that devaluation from being replaced by a pervasive, uninhabitably-terror-inducing sense of vulnerability. We also have to not let the framing of a group in the law as not-attackable be framed as “special rights” rather than as a corrective to actual special rights already enjoyed by other groups.

And we certainly have to contest the response to such incidents in platitudes—the email from University of Illinois President Michael Hogan to the so-called campus community ways called for a renewal of “our commitment to tolerance” and requested that “we all take a moment to remember that compassion is our greatest virtue and that we are united together in a wish for healing and understanding in the wake of such a tragic incident.”

This is real. This is serious. It demands more of a response than this. “We,” whoever we are, are quite evidently not “united” and don’t have “understanding.” It’s not an” incident” but the product of a system. And don’t even get me started on the implicit superiority of the tolerate-r over the tolerate-d (because I know I go on about it all the time; just check out Wendy Brown’s Regulating Aversion).

With vapid and condescending responses like this, hate crime laws start to look better and better.

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  1. […] What’s important to realize, though the law doesn’t and can’t, is that the symbolism, the encoding in law of the idea that you can’t change your laws if it’s going to disenfranchise people, acts as a levee against change even in jurisdictions that aren’t directly subject to it. If it goes away, the dam is open for everyone. (Even more than it clearly is now.) This is the same reason that I see a silver lining in hate crime legislation. […]

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