Ambiguity and hate crime legislation

Key Sun, Ph.D., a psychologist and associate law professor at Central Washington University, has his own interesting take on what's wrong with the Matthew Shepherd Hate Crimes Prevention Act. While he welcomes the bill's intentions, he fears that language of the bill makes prosecution under the act all but impossible.

He points out that the criminal law definition of a crime must (in most instances) define the mens rea, or criminal intent, of the actor. In Texas we categorize crimes by whether the accused acted intentionally, knowingly, recklessly or negligently. A crime in which the accused intended to cause the result is much more serious than a crime in which the accused acted with criminal negligence.

The Shepherd Act defines a hate crime as one in which "the defendant intentionally selects a victim... because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability or sexual orientation of any person."

The problem, according to Dr. Sun, is that this definition substitutes the alleged victim's status for the defendant's mens rea. "Because of..." is not the same as "acting intentionally or knowingly."

Criminal law is, and should only be concerned with, defining what is, and what is not, a crime. It is not the purview of the penal code to provide an explanation of why a crime occurred. That is the job of the criminologists, sociologists, psychologists, psychiatrists and commentators.