By Sarah Jane Braasch-Joy

In loving memory of my baby brother, Jacob Michael Braasch (01/28/86 – 02/02/10)

I saw a woman in niqab on the UC Berkeley campus the other week. I was shocked. I didn’t approach her. I didn’t speak to her. She was with two other women in hijab, on the opposite side of a wide walkway.

But, I was shocked. And, appalled. Here was a woman (or, at least, I assume she was a woman), in the heart of what is arguably the most politically liberal university campus and city in the US, a fount for civil rights and 60’s hippie culture, engaging in a brazen act of gender segregation and slavery in the egalitarian public space of a secular, liberal, constitutional, democratic republic. I think it is a great shame for a woman living in a secular democracy to perpetuate a barbaric, patriarchal religio-cultural tradition when women are fighting and dying across the globe to be free from gender segregation and slavery.

My views on public anti-mask laws (burqa bans, colloquially) as both public safety and gender desegregation measures are well known. We can no more tolerate gender segregation in the public space than we can tolerate racial segregation in the public space, above and beyond the simple fact that we can neither protect nor prosecute those whom we cannot identify, creating an untenable public safety and security hazard.

I expressed my great upset at witnessing this barbarism on the UC Berkeley campus on the English-language facebook page, which I maintain for Ni Putes Ni Soumises (Neither Whores Nor Submissives). Ni Putes Ni Soumises (NPNS) is the amazing women’s rights organization, with global headquarters in Paris, France, which grew out of the outrage over the egregious gender violence being perpetrated upon the Muslim immigrant women and girls of the ghettoized suburban housing projects surrounding the major cities of France. I maintain this page to spread the Ni Putes Ni Soumises message of Secularism, Gender Equality, and Gender Desegregation throughout the English-speaking world.

There are a handful of misogynistic Islamists who occasionally try their hand at debating me on such subjects as US constitutional law and abortion rights on my NPNS facebook page. There’s little I enjoy more than publicly humiliating them online. In truth, I owe them no small amount of gratitude. Every time they bait me, and I engage them, my readership jumps precipitously. And, I relish the opportunity to vent a little of my barely contained rage.

So, of course, my misogynistic Islamist readers couldn’t pass up a choice opportunity to point out my obvious anti-immigrant racism and bigotry. (I’ll admit to being purposely and purposefully provocative in describing the event as an abomination.) But, after comparing the burqa/niqab to the offense of having to watch a woman walk across campus in a mini-skirt, my Islamist interlocutors took a more interesting tack.

They accused me of having perpetrated a hate crime against Muslims and threatened me with hate crimes prosecution, under the guise of being terribly concerned that I not place myself in legal hot water, of course. It was a public service on their part, really. Of course, I pointed out that, not only did I reject their presumption of the role of spokespersons for the Muslim community as a whole, but that gender-based hate crimes are also included in the federal hate crimes act, not to mention the fact that I refuse to be deterred from exercising my constitutional right to free speech.

But, here’s the thing. They’re right. I have reason to be worried. And, they don’t. Because it’s always ok to hate women in America. This is why they felt no qualms about hatefully haranguing women with impunity and turning around and intimating that I was opening myself up to hate crimes prosecution by attacking the niqab. (In fact I said nothing hateful whatsoever about Muslims, or even Islam. Ni Putes Ni Soumises is not anti-religion or anti-Islam, just anti-religionism and anti-Islamism. Most of the women advocating on behalf of secularism for NPNS are Muslim immigrants themselves.)

But, they understand that religious groups enjoy a privileged position, which is denied to women. They understand that the likelihood that they should ever be prosecuted for a gender-based hate crime is all but non-existent, while the possibility that I could ever be prosecuted for a religion-based hate crime is quite real. They understand that even if they should decide to go on a raping rampage against women, that their misogynistic diatribes will never be unearthed, nor will any serious attempt ever be made to unearth them, in all probability. Because no one cares if you hate women in America.

For the rest of my life, if I should ever get into any kind of a dispute or altercation with anyone who claims to be Muslim, I could conceivably be prosecuted for a hate crime. My vehement anti-religion, and especially anti-Islam, ramblings on facebook, my personal blog, the Freedom From Religion Foundation’s website, and Daylight Atheism could be used against me in a court of law.

What my misogynistic Islamist pals don’t know, and how could they, since I was representing not myself, but Ni Putes Ni Soumises during our little exchange, is that literally nothing can deter me from exercising my right to free speech to advocate on behalf of women’s rights as universal human rights without compromise. I am a loner. I will never marry nor have children, which is a tactical choice. I am responsible for no one. I have no possessions. I have no money. I have no family. I have no community. I have no allegiances to any person or group or organization or corporation. I am as free as can be. I have my freedom, which is the only thing I value. I am beholden to no one and nothing, save my dead brother’s memory and my own conscience. Jacob’s suicide freed, enraged, and empowered me. I also know a thing or two about the law. In other words, you can’t scare me. What are you going to do? Kill me? Put me in prison? We’re all going to die someday. I choose to take advantage of every possible moment, while I’m still here, to leave a glorious legacy for my beloved sibling and myself. And, I choose to use my freedom and my knowledge to fight for secularism, gender equality, and gender desegregation.

Since I hate to mince words, let me just say: Hate crimes legislation is stupid. Seriously stupid. Abominably stupid. I hate hate crimes legislation. But, I love hate speech. Hate crimes legislation has a chilling effect on free speech and freedom of association. This is why hate crimes legislation is in direct contravention of the First Amendment of the US Constitution. Under hate crimes legislation, anyone who has ever said anything, which might be deemed hateful, directed at one of the groups protected under the legislation, opens themselves up to hate crimes prosecution in perpetuity, if they should ever find themselves in a dispute or altercation with someone who claims membership in any of those aforementioned protected groups. I want the haters out in the open, in the disinfecting sunlight of free and open discourse in the public marketplace of ideas. When people feel like their voices aren’t being heard, that’s usually when violence erupts. Thus, the paradox of hate crimes legislation. Hate crimes legislation couches the criminal penalty for hate speech within a crime of violence. But, in my opinion, nothing moves one to violence so much as being denied the right to speak one’s mind.

Hate crimes legislation is thought crime legislation. Hate crimes legislation criminalizes the motive behind a crime. Criminalizing the motive is criminalizing the why. Criminalizing the motive is criminalizing thoughts. A hate crime is an additional penalty, above and beyond the penalty imposed for whatever crime of violence. It is an additional penalty to punish the perpetrator for his/her motive. It is an additional penalty to punish the perpetrator for his/her thoughts, for his/her reason for having acted violently. This is thought crime. Pure and simple.

But, since we don’t live inside a Philip K. Dick story, we can’t read people’s minds, which is why we can only know someone’s thoughts by their speech, or, in some cases, their actions. Which brings us back to my point about the chilling effect that hate crimes legislation has upon free speech. If my speech opens me up to legal liability in perpetuity, then I’m not going to speak. (Well, I am, but my imperviousness is rather anomalous, I would think.)

There are two most commonly cited justifications for implementing hate crimes legislation, and both are egregious errors. First, proponents of hate crimes legislation argue that we already penalize perpetrators of crimes for their thoughts, because mens rea (mental intent) is always an element of any crime. Second, proponents argue that, even if hate crimes legislation is thought crime legislation, this is ok, because it is thought crime legislation, which is only ever prosecuted after the point at which the perpetrator has acted violently against someone.

Mens rea (mental intent) and motive are NOT the same thing. Mental intent is always a required element of whichever crime. We don’t punish people for perpetrating crimes, which they do not intend to perpetrate unless they should have been aware that they were perpetrating crimes. We don’t charge people who have seizures behind the wheel, precipitating fatal car accidents, with murder. But, if they were aware of a dangerous medical condition and failed to take reasonable precautions, then that degree of negligence or recklessness could rise to the level of criminality.

The Model Penal Code defines mens rea as having done something purposely, knowingly, recklessly, or in a grossly negligent fashion. What should already be obvious to even the legal layperson is that none of these criteria for satisfying the mental intent element of a crime addresses the issue of motive. Motive is a wholly separable and severable issue. Motive is equivalent to the reason behind having perpetrated a crime. Motive asks the question, “Why did the accused perpetrate this crime?” Motive does not ask whether or not the accused intended to perpetrate the crime. If I am behaving in a criminally negligent fashion, I still have a motive, presumably, for my behavior. Perhaps I am aware of a dangerous medical condition of mine, which induces seizures. Perhaps I fail to take reasonable precautions. Perhaps, I get behind the wheel, because I am feeling incredibly ill, and I intend to drive myself to the hospital emergency room. I have a seizure and get into a fatal car accident. What was my motive? My motive was to drive myself to the hospital emergency room for medical care. What was my mental intent? Did I intend to have a seizure and get into a car accident, resulting in the deaths of innocent bystanders? Should I have been aware of the possibility of having a seizure and getting into a fatal car accident? Was my degree of negligence gross? Does my motive tell you anything about whether I should have been aware of the possibility of having a seizure and getting into a fatal car accident? What if my motive was to drive myself to the movies?

Motive is never an element of any given crime, EXCEPT in the case of hate crimes legislation. Motive can be admitted as evidence of mental intent, but it is not an element of the crime. If I chose to drive myself to the movies, and I bought a ticket online immediately before getting behind the wheel, this can be admitted as evidence that I behaved in a grossly negligent fashion. But, I am not being penalized for wanting to go to the movies; I am being penalized for failing, in a gross manner, to act as a reasonable person would have done under the circumstances. Likewise, without inventing an even more extravagant scenario, perhaps there were extenuating circumstances, in the case of my having chosen to drive myself to the hospital, which led me to believe that I had no other options than to do so.

Conflating motive and mens rea is a serious error, which places our entire American legal system in jeopardy. Allow me to explain why. I’ll continue with the preceding example, because I find that examples serve best in explaining difficult legal concepts. And, these concepts are difficult for everyone, lawyers included. Let’s say that our legislators, responding to a popular mandate, decide to promulgate stupid crimes legislation, wherein those who perpetrate crimes of criminal negligence for particularly stupid motives, like, say, going to the movies, face additional penalties, and that this legislation is a response to moral majority outrage over the loss of life and the infliction of serious bodily harm while engaging in frivolous activities for frivolous purposes. The public is incensed by the flagrant disregard for public safety and welfare.

Stupid crimes legislation entails the imposition of vastly harsher penalties for particularly stupid motives. But, it only imposes those penalties upon those who actually end up negligently killing someone or inflicting serious bodily harm. The legislation is justified as a response to the increased and senseless harms inflicted upon the general public for especially stupid reasons. If you accidentally kill someone in the course of attempting to save someone’s life, you’re ok. You might still be punished for your criminal negligence, but you won’t face additional penalties. But, if you accidentally kill someone in the course of going to the movies, you receive additional penalties, if convicted. The laws penalize only those motives, which are considered frivolous or stupid. Entertainment activities are generally considered frivolous or stupid.

Makes no sense, does it? It’s going to make you think twice about going to see that brand new movie release or concert, won’t it? Either way, you didn’t intend to either purposely or knowingly kill someone. Your intent is no different. You weren’t aware that you would kill someone, but you should have been aware that you could kill someone, and that negligence on your part was gross. But, now, you’re going to receive additional penalties on the basis of the stupidity of your motive during the course of perpetrating a crime of gross negligence. Because the jury will be morally outraged that you ended someone’s life while doing something as frivolous as going to the movie theater. You’re not actually being criminalized for going to the movies, but for wanting to go the movies.

Does it make a difference that you won’t actually risk these penalties until you’ve killed someone? None whatsoever. You’re still being penalized for the additional crime of wanting to go to the movies, of thinking that you want to go to the movies. Which evokes a myriad equal protection concerns. Someone who wants to go to the movies is being punished differently than someone who wants to save someone’s life. For the same crime. The only difference is motive.

Additionally, hate crimes legislation violates the constitutional rights of the accused. You can almost always bring in evidence of a defendant’s motive to prove mental intent. However, Rule 403 of the Federal Rules of Evidence still applies. Rule 403 of the Federal Rules of Evidence says that if the prejudicial nature of the evidence outweighs its probative value, meaning that if the evidence is going to so inflame a jury so as to call into question the defendant’s right to a fair trial, then the evidence is out, no matter how on point and illuminating it is. But, hate crimes legislation throws the Federal Rules of Evidence out the window, as well as their goal of protecting the constitutional rights of the accused. Hate crimes legislation specifically says that if evidence of motive is so inflammatory that it calls into question the constitutional right of the accused to a fair trial, because it will provoke moral outrage in the jury, then it’s admissible. And, not only is it admissible, but it is an element of the crime, and the accused faces harsher penalties, because of the inflammatory and morally outrageous nature of the evidence. It is no longer about merely proving mental intent. It is about purposely and purposefully enraging the jury. It is about criminalizing morally outrageous thoughts/speech. It is about penalizing the perpetrator for his/her morally outrageous thoughts. Hate crimes legislation tells the jury, “If you are morally outraged, then not only consider this evidence, but convict and punish on the basis of your moral outrage.” If we uphold the Federal Rules of Evidence, then the Federal Rules of Evidence, which prohibits egregiously inflammatory motive evidence, will negate the existent of hate crimes legislation.

Regarding the second justification for hate crimes legislation, let’s return to the Philip K. Dick story, in which we seemingly live. Hate crimes legislation is essentially future crimes legislation. If you speak hateful speech, then you will be penalized both now and in perpetuity, by the imposition of a legal liability, for some future violent crime, which you may commit. You will forever be in a position of legal vulnerability, especially with respect to anyone who claims membership in any group protected by hate crimes legislation. You are no longer fully and equally protected by the law. You are no longer a full citizen of the US.

Finally, hate crimes legislation is the granting of rights and legal personality to social groups, placing individual human rights, especially women’s and children’s rights in jeopardy. Proponents of hate crimes legislation also put forth the argument that hate crimes don’t just affect the individual who has been transgressed, but that these crimes are harms against communities of persons, social groups. But, I’m afraid that someone is going to have to define these protected groups with some degree of certitude, including their boundaries, their membership, their protocols for inclusion/exclusion and acceptance/rejection (coming, staying, and going), their rules, their leadership, etc., etc..

Human beings are real. Social groups aren’t. Not nations, not religions, not ethnicities, not cultures, and not races. Group identity is inherently arbitrary and illusory and fluid. There is no objective definition of a social group. The experience of being a self-identified member of a social group is a wholly personal and subjective experience, which only exists in the mind of one or another group member. It matters not that human beings are social creatures that evolved to live in social groups and make decisions communally. This says nothing about the objective reality of social groups. Each member of a social group experiences the group in an entirely different way than any other member. He/she understands his/her role, value, and status within the group differently. There is no objective leadership, no objective set of rules of conduct, no objective protocol for entering, maintaining, or leaving a social group. And, this is as it should remain. Social group identity should remain an arbitrary, illusory, and fluid entity, entirely the process of self-initiation. In the same way that government should pay no heed to religion whatsoever, neither to advance nor deter, government should pay no heed to social groups whatsoever, neither to advance nor deter.

Why? Why should this be so?

Just think about the consequences of legally defining social groups. By recognizing a social group as an objectively definable entity, and legalizing this so-called objective definition of whichever social group, and granting this legal fiction rights and legal personality, we do nothing so much as violate the personhood, autonomy, integrity (bodily and otherwise), and humanity of whichever social group’s members. Group identity is no longer an ephemeral process of self-identification. It is now a process of government indoctrination. Typically, the government cedes its authority to write this legal fiction for whichever social group to the “leaders” of the group, which almost always means the powerful group members, and usually means men. Legalizing group rights is a license to oppress the less powerful members of a group, rendering individual human rights meaningless.

A recognized group with legal rights and personality is an entity, which will seek to perpetuate itself. The group leaders, powerful male group members most likely, will seek to control the means of reproduction of the group members, i.e. women’s bodies and children. Is it any surprise that group leadership will define women group members, who may or may not have had a choice in residing within or without the group, as the sexual and reproductive property of the group? Is it any surprise that a legalized group will defend its right to police its own members, promulgate and enforce its own laws, and defend itself against attack by other groups? No one suffers more under religio-cultural / legal communitarianism than women and children. No one loses more rights than women when groups are granted rights.

Religio-cultural / legal communitarianism is a threat to our secular democracy. Legal communitarianism renders equal protection, rule of law, individual human rights, and secularism meaningless. If a religio-cultural social group can hold itself apart from our secular law and democratic institutions and make itself immune to our Constitution, then our democracy will not survive. And, our government will not be able to protect the most vulnerable and least powerful group members from egregious human rights abuses. Hermetic groups, which are impervious to government intervention, are human rights abuse laboratories. Power differentials coupled with a lack of transparency inevitably lead to human rights violations. And, women and children suffer most of all in these scenarios.

You might think I extrapolate too far from the purpose and effect of hate crimes legislation, but I don’t. We lose a little more of our secular democracy each day. I want to take some of it back. I want to start with the repeal of hate crimes legislation.

I would extrapolate even further. We are a single, global human family. A single, global human race. We are one tribe. One global community. We are one. Nothing divides us. If we are not able to come to terms with this fact, then we will not survive. It is really that simple.

Promulgating criminal law based upon a subjective sense of moral indignation, be it moral majority outrage or otherwise, always sounds like a good idea until you’re on the receiving end of that moral indignation. In other words, be careful what you wish for.

Additionally, hate crimes legislation raises Due Process and 5th Amendment Double Jeopardy questions. But, this essay is already sufficiently lengthy. Suffice it to say that Due Process questions particularly arise in the instance when the accused is subjected to sentencing enhancements determined by a judge, in lieu of determination of guilt by a jury. Fifth Amendment Double Jeopardy issues are evoked, because the accused is being prosecuted twice over for the same crime.

There are so many ways to think that hate crimes legislation is stupid. Even if you’re not convinced by one argument, it is hard to imagine that anyone can remain immune to the persuasive power of the aggregation of arguments against hate crimes legislation.

And, now we see why it’s always ok to hate women in America. Women having full access to their humanity is a direct threat to the existence of social groups. Both women and groups being able to wield the power of hate crimes legislation at the same time, against one another, renders hate crimes legislation meaningless. They cancel each other out. Like matter and anti-matter.

And, so, we wait for someone to be prosecuted for a gender-based hate crime.

And, we wait. And wait.

Excuse me if I don’t hold my breath.