A Feminist Liberal Approach to Hate Crime Legislation

In recent years, progressives have pushed hard for the passage of hate crime laws both in the states and at the federal level. Such laws increase penalties for crimes motivated by particular kinds of bias. Though hate crime laws differ from state to state and could, in principle, name bias motivation against any characteristic as deserving of increased penalties, extant laws have named some or all of the following: bias against a victim’s race, nationality, religion, gender, disability status, and sexual orientation. Thus progressives have seen the passage of hate crime laws as an important step toward more equal social status for traditionally disadvantaged groups. The laws have posed an interesting problem, however, for traditional liberals. Liberals tend to endorse at least the core of the Millian harm principle, according to which citizens should not be punished for what they think, but only for acts which harm others. Of course liberals will differ on what this principle means precisely and how it is to be justified. But hate crime laws seem to violate any obvious reading of it. That is, hate crime laws seem to require extra punishment for criminals who think a particular way about their victims. If this is indeed what these laws do, then to endorse them is to support using the law to punish thoughts. This would open up the possibility of criminalizing whatever ways of thinking the majority happens to reject. Thus, while the laws have enjoyed endorsement by politicians both right and left, liberal scholarship on the issue has been mixed. And even those liberals who endorse hate crime laws have done so only tepidly. For feminist liberals the trouble is even more complex. Feminists endorse the ends toward which the laws are thought to be a means. And they endorse the message that hate crime laws communicate to the public, namely, that the victimization of already disadvantaged citizens is particularly morally reprehensible. Yet feminist liberals will, at least as a political matter, also endorse something like the Millian harm principle and thus would seem to have to reject hate crime laws. This tension in feminist liberalism between commitments that recommend for and commitments that recommend against hate crime laws suggests strongly that feminism and liberalism are incompatible. The tension might seem to show that there is no coherent liberal feminism or feminist liberalism. Indeed, much has been written about what many see as