Is “hate crimes” really an example of this phenomenon? I thought it was just a particular type of mens rea where not only did you have intent to commit violence against a particular individual but that you had intent to use that violence to intimidate an entire community.
Hate crimes are covered more fully in the next chapter. But briefly, they don’t punish you for trying to intimidate an entire community. They punish you for the much more mundane reason that you committed a crime — at least in part — out of bigotry against that particular victim.
With respect to this topic, they count as a big expansion beyond the meaning of mens rea. Mens rea cares about WHETHER you meant to commit the act. Here, all of a sudden, the law cares about WHY you meant to do it.
In principle, the crime is no more severe — the act is identical, the culpability is identical, the harm is identical — but because of what your subjective beliefs were, you get punished more severely.
Whether that’s good or bad is beyond the scope of this comic. But it certainly fits within the trend of expanding and excessive punishment, and of criminal law expanding beyond its traditional scope.
Could the ‘why’ aspect be related to – I understand that it is not covered by – the ‘depravity’ argument from before? Don’t we care about depravity because it suggests that the offender is morally/socially repugnant on a level transcending the basic category of offense? And can’t you make a similar case for hate crimes?
Eh, I’ve never liked the idea, because it seems to me that the state is essentially punishing you for being a racist, which is definitely a violation of freedom of thought. Everyone is entitled to be wrong and ignorant. If you commit a crime because of your ignorance, you should be punished for the crime only.
The various “cyber” laws are also exacerbated by the fact that lawmakers are by and large incredibly ignorant about computers.
Oh god, the Computer Fraud and Abuse Act. You want to know how broadly it can be interpreted? If the state felt like it, they could probably convict me under it for this post. I don’t have written permission to access the server it’s on.