It is rather difficult in many instances to determine whether something said or done is hateful, or whether it is just stupid. It is difficult to get into the mind of the potential criminal, but it is much easier to understand how his or her actions affected its victims.
My recent post regarding Tim Hardaway's silly comments about homosexuality, as cross-posted on OneUtah.org, elicited a response suggesting that hate is the line over which we must not allow such statements to cross. It got me thinking, could Mr. Hardaway's comments be construed to be a hate crime under traditional hate crime laws? I'm not sure.
Traditional hate crime laws consider as hate crimes "criminal acts or attempted criminal acts that are motivated because of a person's actual or perceived race, color, religion, national origin, ancestry, sexual orientation, gender, or disability. " Utah law forges a better solution, under which Hardaway's comments are not considered illegal, but are rather left open for nearly everyone else to recognize as just plain stupid. (And not in the competitive vernacular either--i.e. "Just because he got caught." But rather in the sense that they were uneducated and based on perceptions that are patently at odds with reality.)
Last year after several years of trying to pass hate crimes legislation in Utah, the legislature took a different approach. Rather than trying to assess the quantity of hate in the criminal mind, Utah law now (I think correctly) takes into consideration the reality of how the crime served to limit the victim's ability to exercise his or her Constitutional rights. Action is much (infinitely?) easier to observe and quantify than thought. Utah law now states (in part) that:
A person who commits any primary offense with the intent to intimidate or terrorize another person or with reason to believe that his action would intimidate or terrorize that person is guilty of a third degree felony.
"Intimidate or terrorize" means an act which causes the person to fear for his physical safety or damages the property of that person or another. The act must be accompanied with the intent to cause or has the effect of causing a person to reasonably fear to freely exercise or enjoy any right secured by the Constitution or laws of the state or by the Constitution or laws of the United States.
My perception of what this means can be illustrated by the following examples:
1. In response to John Amaechi's announcement that he is homosexual, Mr. Hardaway essentially said " I hate gays." Mr. Amaechi was annoyed by the comment, and clearly has a right to be, although as a side note, I suggest that it's counterproductive to worry about inane comments from uninformed people. This was NOT a hate crime.
2. On the other hand, what if Tim Hardaway had said, "I hate gays. I hate John Amaechi. And I think he better not show his face at NBA All-Star Weekend." Such a case under Utah law IS a hate crime, and I think correctly so. Regardless of whether Mr. Amaechi planned on attending NBA All-Star Weekend, a reasonable person so threatened would feel that his rights were abridged in that he would likely either (a) not attend NBA All-Star Weekend out of fear, or (b) hire a body guard for protection. The first instance illustrates harm to the person, and the second, harm to the person's property.
In summary, though, I still think that people should be allowed to make the 'annoying' type of stupid statements, even if they are hateful. Only when such comments are reasonably considered by the target of the comments to be intimidating or terrorizing should they be considered illegal.