The Emotional Dimensions of Lesbian and
Gay Demands for Hate Crime Reform
Leslie J. Moran*
for
law challenges
Hate crime has become an important focus in
contemporary lesbian and gay politics. This article
explores an aspect of this resort to law that has not been
addressed in the sexual politics of hate crimethe
emotional investments that are being made in and
through this demand for law. Recognition of the emotions
underscoring a demand
the
foundational assumption about the nature of lawthat it
is quintessentially associated with reason and rationality.
A key theme within the hate crime canon is the
demand for enhanced penalties attached to existing
offences when those offences are motivated by hatred
proscribed by law. The author argues that the gay and
lesbian demand for law reform feeds a law and order
politics of retribution and revenge that may be
implicated in the promotion, institutionalization, and
legitimation of hate. The author does not intend,
however, to dismiss the turn to hate or bias crimes
on the basis that they will be ineffective or destructive
of social cohesion. Instead, he hopes to draw attention
to the complex and contradictory nature of the
relationship between sexuality, state, and violence in
order to contribute to a debate that will query the
alliance that lesbians and gay men are making with law
and order.
Le crime haineux est devenu un enjeu
dimportance pour la politique gaie et lesbienne
contemporaine. Cet article explore un aspect de ce
recours au droit non abord par la politique sexuelle
du crime haineux, savoir les investissements
motifs faits dans et travers cette revendication
juridique. La reconnaissance des motions qui sous-
tendent une revendication juridique dfie un postulat
fondamental quant la nature du droit, savoir quil
est foncirement li la raison et la rationalit.
Un thme central du principe du crime haineux
est la revendication de peines plus svres pour des
infractions dj prvues par la loi lorsque celles-ci sont
motives par une haine interdite. Lauteur soutient que
cette revendication des gais et lesbiennes nourrit une
politique de loi et dordre punitive et revancharde
laquelle pourrait tre attribue
la promotion,
linstitutionnalisation et la lgitimation de la haine.
Cependant, lauteur na pas lintention de rejeter le
recours la haine ou au prjug au motif quils
seraient inefficaces ou prjudiciables la cohsion
sociale. Il espre plutt attirer lattention sur la nature
complexe et contradictoire de la relation entre la
sexualit, ltat et la violence pour contribuer un
dbat questionnant lalliance que sont en train de forger
les gais et lesbiennes avec la loi et lordre.
* Professor of Law, School of Law, Birkbeck College, University of London. The final stages of
writing the first draft of this paper were undertaken during the course of my fellowship at the Stetson
University College of Law in Florida. I would like to thank Bruce Carolan and the Stetson University
College of Law for organizing this visiting fellowship.
McGill Law Journal 2004
Revue de droit de McGill 2004
To be cited as: (2004) 49 McGill L.J. 925
Mode de rfrence : (2004) 49 R.D. McGill 925
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 49
926
Introduction
I. Enhanced Punishment
II. The Emotional Landscape of Contemporary Law
and Order Politics
III. Emotional Attachments to Good Violence
IV. The Fate of Emotional Attachments in Law
V. The Troubling Emotions of Hate Crime
VI. Punitive Segregation and Lesbian and Gay Politics
of Hate Crime: A Note of Caution
Conclusion
927
933
938
939
940
943
946
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L. MORAN LESBIAN AND GAY DEMANDS FOR HATE CRIME REFORM
2004]
Introduction
Hate crime has become an important focus in contemporary lesbian and gay
politics not only in the US, its place of origin,1 but also in other common law
jurisdictions2 such as Canada,3 Australia,4 and the UK.5 Commenting on government
927
1 See e.g. Valerie Jenness & Kendal Broad, Hate Crimes: New Social Movements and the Politics
of Violence (New York: Aldine De Gruyter, 1997); Valerie Jenness & Ryken Grattet, Making Hate a
Crime: From Social Movement to Law Enforcement (New York: Russell Sage Foundation, 2001).
2 Hate crime is also a term that has gained significance within sexual politics in other
jurisdictional contexts such as South Africa. See e.g. Graeme Reid & Teresa Dirsuweit,
Understanding Systemic Violence: Homophobic Attacks in Johannesburg and Its Surrounds Urban
Forum 13 (2002) 99; Hate Crimes Against Lesbians on the Rise (5 May 2004), online: iOL
Rights Commission offers other examples from North Africa, South America, the Indian sub-
continent and countries of the Pacific rim. See online: International Gay and Lesbian Human Rights
Commission
3 See e.g. Cynthia Petersen, A Queer Response to Bashing: Legislating Against Hate (1991) 16
Queens L.J. 237; Martha Shaffer Criminal Responses to Hate-Motivated Violence: Is Bill C-41
Tough Enough? (1995) 41 McGill L.J. 199.
4 See e.g. Gail Mason & Stephen Tomsen, eds., Homophobic Violence (Sydney: Hawkins Press,
1997); Gail Mason, The Spectacle of Violence: Homophobia, Gender and Knowledge (London:
Routledge, 2002) [Mason, Spectacle of Violence].
5 In the UK, the phrase hate crime is a part of the common currency of the contemporary
landscape of political activism around violence. In general, it has remained a political and
bureaucratic category rather than a legislative term. While recent reforms like the Crime and Disorder
Act 1998 ((U.K.), c. 37) have introduced the idea of sentence enhancement as well as the creation of a
new offence, the term used to name this new category of law is aggravated violence. The UK
government has been reluctant to extend the term hate crimes beyond racial and ethnic violence. In
2003, sentence enhancement provisions were extended to include incidents of violence in relation to
sexual orientation and disability. This reform only relates to the application of sentence enhancement
in relation to parallel offences. Despite the absence of hate crime as a strict legal term in the UK,
there is much evidence that it is already significant for policing with many local initiatives. An
example comes from the policing guide produced by the Association of Chief Police Officers
(ACPO), which seeks to set common standards for policing hate crimes: Association of Chief
Police Officers, Guide to Identifying and Combating Hate Crime: Breaking the Power of Fear and
Hate (London: ACPO, 2000). Under the heading Prioritising Hate Crime by its Impact on the
Victim, the guide explains:
Hate crime can have a devastating effect on the quality of life of its victims and those
who fear becoming its victims.
Hate crime victims feel the added trauma of knowing that the perpetrators motivation
is an impersonal, group hatred, relating some feature that they share with others. A
crime that might normally have a minor impact becomes, with the hate element, a very
intimate and hurtful attack that can undermine the victims quality of life. … In any
close community, the impact of hate crime on quality of life extends to the victims
family, broader circle of friends, acquaintances and the whole community. For every
primary victim there are likely to be numerous secondary victims.
Beyond its impact on the individual, hate crime is a powerful poison to society. It
emphasises and sensitises feelings of difference rather than focusing on what is shared
[Vol. 49
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proposals to consider the extension of hate crime provisions in the UK to include
homophobic violence, the editor of a London-based gay magazine observed, Almost
uniquely, the introduction of hate crimes has the support of all the major campaigning
organisations.6 The phrase hate crime articulates the weight and urgency of a lesbian
and gay politics of violence and safety by reference to crisis and epidemic.7
Incidents of extreme violence, such as the brutal murder of Matthew Shepard in the US,
Kenneth Zeller in Toronto, Canada, and George Duncan in South Australia, as well as
the bombing of The Admiral Duncan (a gay pub in Londons Soho), which resulted in
several deaths, have been deployed as potent symbols of this crisis.8 Its epidemic
qualities are commonly represented in victim surveys arising out of lesbian and gay
community activism devoted to generating data that not only seeks to map the
prevalence of that violence over a persons lifetime but also to represent its everyday
quality. Jacobs and Potter remark that [s]pokespersons for lesbians and gays have been
among the most vocal proponents of the hate crime epidemic theory.9 The collection of
data about these largely unreported incidents of violence draws attention to the
continued failure of the state, in particular the police as key state officials, and the
criminal justice system more generally, to take homophobic violence seriously.10 As
in common. It breeds suspicion, mistrust, alienation and fear. It promotes isolation and
exclusion and sets up barriers to communication (at 4-5).
6 Chris Morris, Debate: More Equal Than Others Outcast (November 1999) 13. This article
presents arguments for and against the inclusion of sexual orientation in English hate crime law.
Outcast is a free lesbian and gay weekly magazine published in the UK.
7 Petersen, supra note 3.
8 On the murder of Matthew Shepard, see Beth Loffreda, Losing Matt Shepard: Life and Politics in
the Aftermath of Anti-Gay Murder (New York: Columbia University Press, 2000). On high profile gay
murders in Canada, see Petersen, supra note 3. On the murder of George Duncan in South Australia,
see Barbara Baird, Putting Police on Notice: A South Australian Case Study in Mason & Tomsen,
eds., supra note 4, 27. On the bombing of The Admiral Duncan, see Martin Bowley, A Cancer at
the Heart of Society (2000) 150 New L.J. 1203. Victor Janoff raises a note of caution suggesting that
many gay related murders attract little public concern or attention. In Canada in the 1990s, over 80
such murders took place attracting little gay or straight media attention. See Victor Janoff,
Homocide: Queer Killings Across Canada, online: American Society of Criminology
9 James B. Jacobs & Kimberly Potter, Hate Crimes: Criminal Law and Identity Politics (New York:
Oxford University Press, 1998) at 46.
10 See e.g. Greater Manchester Lesbian and Gay Policing Initiative, Lesbians Experiences of
Violence and Harassment (Manchester: Greater Manchester Lesbian and Gay Policing Initiative,
1999); Neil Jarman & Alex Tennant, An Acceptable Prejudice?: Homophobic Harassment in
Northern Ireland (Belfast: Institute for Conflict Research, 2003); Kristen Kuehnle & Anne Sullivan,
Patterns of Anti-Gay Violence: An Analysis of Incident Characteristics and Victim Reporting
(2001) 16 J. of Interpersonal Violence 928; Angela Mason & Anya Palmer, Queer Bashing: A
National Survey of Hate Crimes Against Lesbians and Gay Men (London: Stonewall, 1996); I. Wake
et al., Breaking the Chain of Hate: A National Survey Examining the Level of Homophobic Crime and
Community Confidence Towards the Police Service (Manchester: National Advisory Group, 1999);
National Coalition of Anti Violence Programmes, Anti-Lesbian, Gay, Bisexual and Transgender
Violence in 2001: A Report of the National Coalition of Anti-Violence Programs (New York: National
Coalition of Anti Violence Programmes, 2002), online: vawnet
Violence and Harassment of Gay Men in the City of Edinburgh (Edinburgh: Scottish Executive
Central Research Unit, 2000); New South Wales, Out of the Blue: A Police Survey of Violence and
Harassment Against Gay Men and Lesbians (Sydney: New South Wales Police Services, 1995); Anti-
Discrimination or Board of New South Wales, Final Report of the Streetwatch Implementation
Advisory Committee (Sydney: Streetwatch Implementation Advisory Committee, 1994).
11 Shane Phelan argues that violence against gays and lesbians, and the states failure to take that
violence seriously, is perhaps the clearest manifestation of the denial of sexual citizenship. In this
model of the relations between the individual and the state, the state is the ultimate provider and
guarantor of individual and collective safety and security. This safety and security is provided in
exchange for obedience to the law. As Phelan points out, the present institutional hetero-sexism of the
state and the law makes citizenship problematic and, more specifically, makes access to safety and
security in and through the state, at best, difficult and, at worst, impossible for lesbians and gay men.
See Shane Phelan, Sexual Strangers: Gays, Lesbians and Dilemmas of Citizenship (Philadelphia:
Temple University Press, 2001).
12 Elizabeth A. Stanko & Paul Curry, Homophobic Violence and the Self at Risk (1997) Social
& Leg. Stud. 513 (this article appeared in a special issue entitled Legal Perversions).
13 See Jenness & Broad, supra note 1; Jenness & Grattet, supra note 1.
14 See Jenness & Broad, ibid. at 172.
15 Jacobs & Potter, supra note 9, c. 3.
16 See Susan A. Bandes, ed., The Passions of Law (New York: New York University Press, 1999);
Lionel Bently & Leo Flynn, eds., Law and the Senses: Sensational Jurisprudence (London: Pluto
Press, 1996); Mary Douglas, Emotion and Culture in Theories of Justice (1993) 22 Econ. & Socy
501; Susanne Karstedt, Emotions and Criminal Justice (2002) 6 Theoretical Criminology 299;
Murray Lee, The Genesis of Fear of Crime (2001) 5 Theoretical Criminology 467; Claire Valier,
Punishment, Border Crossings and the Powers of Horror (2002) Theoretical Criminology 319;
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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fundamental separation of law and emotions is more difficult to sustain in the context
of hate crime law. To date, much of the work on the emotional dimensions of law has
occurred in relation to criminal law and criminal justice. This focus is not surprising
as Willem De Haan and Ian Loader explain:
[Vol. 49
Intuitively, one is bound to think of [the relationship between human emotions
and crime, punishment, and social control] as a close one. States of emotional
arousalpleasure, anger, fear, sadness, disgust, remorse, resentment, shame,
guilt and so forthseem somehow deeply and intimately implicated in
[crime].17
Furthermore, Laster and OMalley suggest that in the recent past, it is in the
context of criminal law and criminal justice that emotions have not only played an
important role in law reform but, through that reform, have been embedded in law and
in the mechanisms of its administration.18 The appearance of hate in the name of the
new legal category, hate crime, appears to be an example of a law that gives a
certain prominence to emotions. Hate, the Oxford English Dictionary explains, is
an emotion of extreme dislike or aversion; detestation or abhorrence … 19 It would,
however, be premature to conclude that the appearance of hate in this new legal
category fundamentally challenges the continued significance of the foundational
assumption about the separation of law and emotions.
In lesbian and gay activism around hate crime reform, in the first instance, hate
is overwhelmingly represented as being antithetical to law. It is an important
dimension of the problem; of the violence that is taken to be a sign of disorder,
threatening not only the individual but also the immediate and wider community. I
will argue that this is a partial picture of the emotional dimensions of hate crime law
reform. Murphy and Hampton suggest that criminal law provides a vehicle whereby
certain feelings of anger, resentment and even hatred … typically directed towards
wrong doers, especially if we are the victims of those wrong doers are
institutionalized in the law.20 Murphy and Hamptons reference to hate is of
particular interest. Contrary to the belief that in hate crime emotions in general, and
hate in particular, may be limited to their association with violence and social
disorder, Murphy and Hamptons observations suggest that hate may be an emotion
associated with law and with good order. This raises the possibility that lesbian and
Alison Young, Aesthetic Vertigo and the Jurisprudence of Disgust (2001) 11 L. & Critique 241. On
horror and law, see Leslie J. Moran, Gothic Law (2001) 10:2 Griffith L.R. 75; Leslie J. Moran,
Law and the Gothic Imagination in Fred Botting, ed., Essays and Studies 2001: The Gothic
(London: D.S. Brewer, 2001) 87; Leslie J. Moran, Laws Diabolical Romance in Michael Freeman,
ed., Current Legal Issues: Law and Popular Culture [forthcoming].
17 Willem de Haan & Ian Loader, On the Emotions of Crime, Punishment and Social Control
(2002) 6 Theoretical Criminology 243 at 243.
18 Kathy Laster & Pat OMalley, Sensitive New-Age Laws: The Reassertion of Emotionality in
Law (1996) 24 Intl J. Soc. L. 21.
19 The Compact Oxford English Dictionary, 2d ed., s.v. hate.
20 Jean Hampton, Forgiveness, Resentment and Hatred in Jeffrie G. Murphy & Jean Hampton,
Forgiveness and Mercy (Cambridge: Cambridge University Press, 1988) c. 2 at 63 [emphasis added].
931
L. MORAN LESBIAN AND GAY DEMANDS FOR HATE CRIME REFORM
2004]
gay law reform, which seeks to outlaw hate, may be implicated in the promotion,
institutionalization, and legitimation of hate (albeit a different hate).21 My interest in
this state of affairs echoes concerns raised by Wendy Brown, reflecting on the
experience of feminist engagements with the state. She poses a question that is at the
heart of my focus upon the emotional dimensions of law in general, and in relation to
lesbian and gay engagements with hate crime reform initiatives in particular. She asks,
What kind of attachments to unfreedom can be discerned in contemporary political
formations ostensibly concerned with emancipation?22 The question gives a critical
analysis of the emotional investments being made in and through the sexual politics of
hate crime reform a particular urgency.
In my attempt to explore the emotional investments being made in and through
hate crime reform it is not my intention to undertake a detailed historical or
contemporary survey of the development or deployment of the various dimensions of
the hate crime canon23 within a lesbian and gay context, either in a specific
jurisdiction or across a wider range of locations. Existing general studies of the
development of hate crime social movements, such as work by Jenness and Broad and
Jenness and Grattet focusing on the US,24 offer preliminary data and an exemplary
analysis of their deployment in this context. Detailed empirical work must remain an
important and urgent sociological and socio-legal project for others to undertake.
My points of departure and resources drawn from contemporary sexual politics
are modest. My experience of being a member of the lesbian, gay, bisexual, and
transgender (LGBT) advisory group of Londons Metropolitan police service has
provided me with one context in which to experience lesbian and gay advocacy of
hate crime reform. The priority given to hate crime reform and the importance of
enhanced punishment for crimes of homophobic violence have both been notable
features of the going encounter between the police and the LGBT participants of the
advisory group. Another point of departure is the writings of lesbian and gay activists
and scholars in various different jurisdictional contexts who have advocated hate
crime reform as the favoured response to homophobic violence. For example, in the
UK, a key response to the deaths arising out of bombing of the gay bar, The Admiral
Duncan in Londons Soho, was the demand for hate crime reform.25 Stonewall, the
21 AnnJanette Rosga, Deadly Words: State Power and the Entanglement of Speech and Violence in
Hate Crime (2001) 12 L. & Critique 223.
22 Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton: Princeton
University Press, 1995) at xii [Brown, States of Injury]; see also Wendy Brown, Wounded
Attachments: Late Modern Oppositional Political Formations in John Rajchman, ed., The Identity in
Question (New York: Routledge, 1995) 199 [Brown, Wounded Attachments].
23 See Valerie Jenness, The Hate Crime Canon and Beyond: A Critical Assessment (2001) 12 L.
& Critique 279.
24 Supra note 1.
25 See Bowley, supra note 8.
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UKs premier lesbian and gay parliamentary lobby group,26 and leading activists, such
as Peter Tatchell, 27 have in general argued for the incorporation of sexual orientation
into hate crime reform initiatives and have, in particular, given their enthusiastic
support to sentence enhancement provisions. Lydia Teller, a lesbian activist in the UK,
made the following comments in support of the reform of UK hate crime laws to
include homophobic violence: The case for introducing hate crimes is so obvious
that its impossible to argue. She continues:
[Vol. 49
Now Im in my thirties I look back on my teenage years and wish there had
been legislation around then to protect me. It may not be liberal or politically
correct, but neither are the bullies who beat us up for our sexual orientation.
They dont want to play fair, so to protect ourselves we have to come down on
them hard.28
US activist and scholar, AnnJanette Rosga, reflecting on her experience working
in the field of violence against lesbians and gay men observed that she found phrases
such as hate crime and bias-related violence were crucial to the success of
developing the contours and raising the visibility of homophobic violence.29 Her
experience was that they offered a dramatic narrative that was the easiest and most
effective tool with which to unsettle and persuade audiences.30 Here, Rosga offers an
example of her willingness to mobilize hate crime for a lesbian and gay politics of
violence and safety. A third and final point of departure is the successful incorporation
of sexual orientation into hate crime laws. Jenness and Grattet note that a key
dimension of attempts to extend hate crime provisions to include sexual orientation
has been comparison; applying the hate crime orthodoxy and its assumptions to other
individuals and groups. As Jenness and Grattet note, in many instances this has not
been a simple task or an easy struggle. In most jurisdictional contexts attempts to
deploy the orthodoxy of hate crime in general and sentence enhancement in particular
to sexual orientation have involved long hard battles.31 Again, Rosga offers a pertinent
26 Stonewalls most recent working paper on hate crime reform was produced in response to a
government working party in Scotland. See Stonewall, Hate Crime: Consultation Response to the
Working Groups Report (Scotland: Stonewall, 2004), online: Stonewall: Equality & Justice for
Lesbians, Gay Men & Bisexuals
27 Peter Thatchell, Some People are More Equal than Others in Paul Iganski, ed., The Hate
Debate: Should Hate Be Punished as a Crime? (London: Institute for Jewish Policy Research, 2002)
54 at 58.
28 Lydia Teller, Debate: More Equal Than Others Outcast (November 1999) 13.
29 AnnJanette Rosga, Policing the State (1999-2000) 1 Geo. J. Gender & L. 145 at 148.
30 Ibid. at 150.
31 The incorporation of sexual orientation differs from that of race, religion, and ethnicity, which,
Jenness and Grattet note, are the anchoring provisions of all hate crime (supra note 1 at 159) These
are already legitimated subjects. Bias and hate associated with these distinctions has already been
challenged in many jurisdictions as evidenced in earlier anti-discrimination provisions. In contrast,
bias or hate focusing upon a persons sexual orientation remains legitimate and unchallenged in many
interpersonal and institutional contexts. Thus, most attempts to deploy the orthodoxy of hate crime in
general and sentence enhancement in particular to sexual orientation also involve the creation of
lesbians and gays as legitimate subjects.
L. MORAN LESBIAN AND GAY DEMANDS FOR HATE CRIME REFORM
2004]
reflection on the significance of comparison and analogy. Establishing … analogies
she explains, was crucial. She continues:
933
[H]ate crime and bias related violence out-performed anti-gay violence
in establishing conceptual similarities between racism, anti-Semitism, and
homophobia. … [I]t was nothing less than a profound rearticulation of reality to
correlate this violence with racist and anti-Semitic violence.32
It is with the emotional investments being made in and through these analogies
and the resort to a now well-established rationale for hate crime reform that my
analysis begins. Placing this orthodoxy in the wider contemporary landscape of law
and order politics provides an opportunity to highlight some of the key emotions
specifically, hate and revengethat are articulated and valorized in demands for
enhanced punishment. An analysis of the fate of these emotions in law follows. The
focus then returns to hate crime reform to examine the fate of these emotions in that
specific context. Finally, the paper reflects on the encounter between sexual identity
and hate crime and expresses a note of caution prior to drawing some conclusions.
I. Enhanced Punishment
A key theme within the hate crime canon is the demand for enhanced penalties
attached to existing offences when those offences are motivated by hatred proscribed
by law.33 Originating in the context of campaigns for the introduction of crimes of
hate associated with race, ethnicity, and civil rights,34 a set of arguments
legitimating these demands has rapidly been established. The organizing principle of
this orthodoxy is that hate or bias crime is a more damaging and dangerous form
of violence.35 Hate crimes are said to be more damaging for the individual in various
ways: some have suggested that hate violence is frequently physically more extreme
32 Supra note 29 at 148.
33 This is a crude portrait of hate crime legislation. As Jacobs and Potter note, a range of statutory
definitions have been invented to name the relation between hate and the act of violence. See supra
note 9, c. 3.
34 Jacobs & Potter, supra note 9; Jenness & Broad, supra note 1; Jenness & Grattet, supra note 1;
Shaffer, supra note 3.
35 See Frederick M. Lawrence, Punishing Hate: Bias Crimes under American Law (Cambridge:
Harvard University Press, 1999) for a classic exposition of this position; see Jack Levin & Jack
McDevitt, Hate Crimes: The Rising Tide of Bigotry and Bloodshed (New York: Plenum Publishing
Corporation, 1993); Paul Iganski, Why Make Hate a Crime? (1999) 19 Critical Social Policy 386
(illustrating the use of hate crimes in a UK context) [Iganski, Hate a Crime]. Jacobs and Potter
(supra note 9) offer the most sustained, albeit problematic, critique of this orthodoxy. They question
the veracity, not of the claims of harm per se, but of the claims of exceptional harm. Associated with
this is the challenge to suggestions that violence motivated by hate or bias is an exceptional problem;
an epidemic of violence. They suggest that the enactment of special hate crimes will itself promote
harm, arguing that rather than offering a solution that prevents community fragmentation, the very
category of hate crime further institutionalizes the very distinctions that promote fragmentation and
institutionalize conflict.
[Vol. 49
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and more brutal.36 Extra damage also takes a psychological form as it generates added
trauma. One dimension of this is explained in terms of the particular nature of the act
of violence, which is seen to have a strong impersonal dimension: the perpetrator acts
on the basis of his perception of the victims membership in a social category. The
UKs police manual on hate crime explains the extra damage by reference to the
impersonal nature of this violence, which focuses on a persons perceived identity,
making the violence very personal (identity being the very essence of that person)
and thereby of more damaging effect.37 Another argument in support of enhanced
punishment is the extraordinary impact of hate violence on the wider community. In
the first instance this wider impact is upon the immediate identity community. Some
have characterized the extreme nature of the threat as a state of terror38 in which
members of the community live in constant fear and isolation. This violence also has a
wider impact as the perpetrators perception of the victims membership in a
particular vilified group has a certain arbitrary quality. All who are perceived by
perpetrators to be members of that community are vulnerable. It is not limited to
victims who self-identify with a particular community. A much wider group of
persons are therefore seen to be at risk of this form of violence. Finally, the
extraordinary nature of this violence is associated with damage to culture and
respectable society more generally. In this understanding, the violence is said to
violate fundamental values, such as equality and multiculturalism, threatening to
fracture the community and the very possibility of social order. These arguments work
to characterize hate-motivated violence as exceptional.
Making an event exceptional is a technique of making a claim on the nation that
relates to the wider contemporary restructuring of national personhood.39 Berlant
shows how the exceptional and the traumatic have come to be the major methods for
people in the US (and I would add, other Western liberal democracies) to tell their
relationship to the state and thereby be entitled to state belonging and protection.
Telling has to be novel and exceptional rather than mundane and everyday, it has to
make an impact and it should be a transformative event (trauma should transport from
one life to another through its power as exceptional). By eclipsing tales of everyday
suffering and structural inequality, exceptional trauma enables a more powerful moral
position to be taken and therefore a greater claim to be made. The trauma generated
through violence is a powerful form of exceptional personhood, legitimating greater
claims for enhanced punishment.
36 See Brian Levin, Hate Crimes: Worse by Definition (1999) 15 J. Contemp. Crim. Justice 6;
Iganski, Hate a Crime, ibid.
37 ACPO, supra note 5.
38 See James Weinstein, First Amendment Challenges to Hate Crime Legislation: Wheres the
Speech? (1992) 11:2 Criminal Justice Ethics 6.
39 See Lauren Berlant, The Queen of America Goes to Washington City: Essays on Sex and
Citizenship (Durham: Duke University Press, 1997); Lauren Berlant, The Subject of True Feeling:
Pain, Privacy, Politics in Sara Ahmed et al., eds., Transformations: Thinking Through Feminism
(London: Routledge, 2000) 33; L. Berlant, Trauma and Ineloquence (2001) 5 Cultural Values 41.
935
L. MORAN LESBIAN AND GAY DEMANDS FOR HATE CRIME REFORM
2004]
Lesbian and gay politics of violence and safety seek to figure homophobic
violence as the exceptional. For example, the exceptional is figured in the suggestion
that this violence represents a crisis and an epidemic. Epidemic stands for
novelty. This is not so much the novelty of the appearance of homophobic violence,
but the novelty of its characterization as disorder, and the novelty of an awareness of
the scale of this violence. Exceptional also resonates with a perception, promoted
by contemporary law and order politics, that violent crime is a growing problem and a
sign of an escalating social crisis. This focus on novelty threatens to transform the
past (and present) of systematic and everyday homophobic violence legitimated both
in and through the state institutions of safety and security into the exceptional.40 The
exceptional is also figured in assumptions about the nature of homophobic violence,
which is predominately imagined to be stranger violence; random acts committed in
public places by someone who is not known to the victim. The random nature of this
violence and the nature of the perpetrator (figured here as the stranger, the one who
is least known or knowable) both symbolize the extreme qualities of this violence.41
40 See Barbara Perry, In the Name of Hate: Understanding Hate Crime (New York: Routledge,
2001). Amnesty Internationals reports on the violence of state institutions toward lesbians and gay
men provides ample contemporary documentation of its widespread operation. See Amnesty
International, Crimes of Hate, Conspiracy of Silence: Torture and the Ill-Treatment Based on Sexual
Identity (London: Amnesty International Publications, 2001).
41 Petersen raised doubts about the validity of this model of the nature of homophobic violence in
particular suggesting that it did not represent the experience of lesbians (supra note 3 at 238-42). In
the UK, a study of the police records of the London Metropolitan Police undertaken by the
Understanding and Responding to Hate Crime Team (see Metropolitan Police, Understanding and
Responding to Hate Crime Factsheets: Homophobic Violence, online: Metropolitan Police
of Hatred: Confessions and Worrying Dilemmas of a Consultant (2001) 12 L. & Critique 309) found
that in over 60 per cent of police reports of homophobic incidents no relationship between victim and
perpetrator was recorded. Upon undertaking a detailed qualitative analysis of incidents reported in
January a rather different picture emerged from the police data. Almost 40 per cent of perpetrators
were known to the victims as neighbours, partners, ex-partners, family, business associates, and
others. A further 28 per cent were locals and local youths. Strangers accounted for only 16 per cent of
perpetrators. In a study of allegations of racial and homophobic harassment recorded by the London
Police between January and June 2001, Gail Mason found that in over 80 per cent of the reported
homophobic incidents, the perpetrator was a neighbour: Gail Mason, A Study of Allegations of Racial
and Homophobic Harassment recorded by the London Metropolitan Police Service, January-June
2001 (2003) [unpublished].
An important feature of both the URHC findings and Masons work on homophobic incidents is
that it challenges the common presumption that hate crime in general and homophobic crime in
particular takes the form of randon attacks by a stranger upon a stranger. As Mason points out, The
assertion that it is random is dependant upon the assumption that the conduct is committed by
someone who is not known to the victim … (ibid. at 24). Developing a more complex set of
categories of perpetrator/victim relations enabled the UHRC project to challenge this presumption,
providing valuable new insights into experiences of homophobic violence. See also Leslie J. Moran,
Susan Paterson & Tor Docherty, Count Me in!: A Report on the Bexley and Greenwich Homophobic
Crime Survey (2004) [unpublished]. In that survey two out of three respondents who had experienced
homophobic violence in the last 12 months, reported that they knew the perpetrators. This group
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Through the exceptional, the sexual politics that expose the ordinariness of
homophobic violence resonates with the politics of enhanced punishment.
[Vol. 49
Frederick Lawrence suggests that two main themes connect the orthodoxy of a
more dangerous and damaging violence to the demands for enhanced punishment.42
The first is retribution and the second has a utilitarian/consequentialist focus. The
latter is characterized by Lawrence as a set of themes that orient punishment toward a
welfare objective, which has both an individual and community focus with an explicit
crime reduction agenda. As a symbol, the new punishment functions at the level of
moral education; purporting to give out a message to individuals and society that
hate crime is no longer tolerated and is now being taken seriously.
Retribution explains and fashions demands for enhanced punishment in terms of
just deserts: an eye for an eye, that the punishment fit the crime, et cetera. Others
have described punishment as a form of debt paid to the State/Society, the
creditor.43 The image of retribution as a relation of credit and debt is at the heart of
what Shane Phelan has described as legal or negative citizenship.44 In this
formulation, the state as the provider and guarantor of security takes the role of
creditor to the citizen-debtor. The original credit takes the form of the states
provision of privileges, in particular, safety and security. The citizens debt is paid as
individual obedience to the laws and institutions that produce and sustain this social
order of safety and security. A violation of law by the citizen interrupts the satisfaction
of the ongoing debt. Punishment is the means whereby the state calls in the debt and
extracts the outstanding value.
A reflection on punishment by Nietzsche offers an illustration of various
dimensions of punishment organized by way of the metaphor of credit and debt. He
describes the outstanding debt and the process of its repayment in the following
terms:
Hence [the criminal] is not only stripped of his advantages as is only just, but
drastically reminded what these advantages are worth. The rage of the
defrauded creditor, the community, returns him to the wild and outlawed
condition from which heretofore he had been protected. It rejects him, and
henceforth every kind of hostility may vent itself upon him. Punishment at this
level of morality simply mimics the normal attitude toward a hated enemy who
includes partners and ex-partners, family and household members, neighbours, and colleagues at
work, school, and college. When partners and ex-partners were taken out of the data, over 50 per cent
of perpetrators still fell in the categories of persons known to the victim.
The challenge raised here is how to make the violence that is everyday (a violence that is largely
ignored) exceptional, that is, a violence that is to be taken seriously.
42 Lawrence, supra note 35, c. 3.
43 Robert C. Solomon, Justice v. Vengeance: On Law and the Satisfaction of Emotion in Susan
Bandes, ed., The Passions of Law (New York: New York University Press, 1999) 123.
44 Phelan, supra note 11 at 23.
2004]
L. MORAN LESBIAN AND GAY DEMANDS FOR HATE CRIME REFORM
937
has been conquered and disarmed, who forfeits not only every right to
protection but all mercy as well.45
In order to demonstrate the full value of the unpaid debt, the debtor is purged
from the domain of law and given an experience of the wild, as an outlaw. In this
way, retribution is connected to purification of the community. Once outside, the one
who has failed to obey the law is in the position of the enemy. In this position as
debtor he or she is not only outside laws order and security, but is also subject to the
full unmediated force of laws violence.46 The duration and degree of suffering
signifies the value due as well as its payment. A popular contemporary manifestation
of this logic of punishment is to be found in references to various wars on crime.
Against an enemy of the law (and the law-abiding citizen) the states resort to the full
force of law becomes a legitimate practice. This relation of credit and debt offers an
extended metaphor that makes punishment intelligible in particular ways: it provides a
scheme of valorization and offers a way of making sense of the violence of the law as
a phenomenon that is managed and administered, that is based on reason.
Furthermore, this extended metaphor makes punishment an economy that works with
themes of equality, balance, harmony, and stability.47
45 F. Nietzsche, The Genealogy of Morals (New York: Double Day Anchor Books, 1956) Book 2,
IX, 203-204.
46 Throughout this analysis I draw upon the work of Robert Cover, which explores the relation
between law and violence. For Cover the relationship between law and violence is a necessary
relationship. As Cover explains, Legal interpretation takes place in a field of pain and death (Robert
Cover, Violence and the Word (1986) 95 Yale L.J. 1601 at 1601). This observation points to the link
between law as rule and reason and law as violence. Via interpretation, the text of lawthe rule
(language and reason)is turned into an action, a practice. The legal context of interpretation gives
that transformation a specific institutional context; it is violence realized through a specific
institutional ensemble. The institutions of the administration of law connect the act of practical
understanding to the physical acts of violence and coercion of others (who carry out the judicial
decision), in a predictable, though not logically necessary way (ibid. at 1611). This violence takes
many different forms including the execution of an individual, the termination of a persons liberty
and freedom, the removal or denial of property, and the cessation or prohibition of particular social
relations. Criminal law and the institutions of its administration, policing in particular and criminal
justice more generally, offer perhaps the clearest instance of the violence of law. Criminal justice is a
manifestation of law, not so much as an absence of violence (in opposition to violence) but more as a
particular institutional practice of good violence. In the guise of criminal law and criminal justice law
is a violence associated with order, safety, and security rather than with disorder, danger, and
insecurity. It is a good or legitimate violence over and against bad violence. The violence that flows
from an application of the criminal law is perhaps most readily apparent in those jurisdictions that
retain the death penalty. The violence of the law is, however, neither confined to that particular act of
official violence, nor is it a quality of law limited to those particular legal systems. Laws violence
produces and enforces the everyday exclusions from belonging, from access to the entitlements of the
state. For a more extended analysis of the alignment of lesbian and gay politics with the good
violence of law, see Leslie Moran & Beverley Skeggs, Sexuality and the Politics of Violence and
Safety (London: Routledge, 2003).
47 See Solomon, supra note 43.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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The logic of debt and credit has particular significance in the context of
established arguments about enhanced punishment as the required response to hate.
A more damaging form of violence demands a more severe punishment. The
metaphor of credit/debt has a particular resonance with retribution.
[Vol. 49
But what of the fate of the utilitarian/consequentialist position in this context? It is
important to note that it can also be associated with the credit/debt themes that inform
demands for enhanced punishment. The exceptional danger demands extended
incapacitation as a symbolic response to the specific nature of that danger.
Rehabilitation, a rationale associated with the utilitarian approach, may also be used
to support arguments for longer and more severe punishment.
While it is important to recognize the plurality of rationales for sentence
enhancement and to note their differences, particular attention needs to be paid to
their contemporary social and cultural resonances, as this will affect the manner of
their incorporation into the wider context. When refracted through the dominant law
and order politics, the various themes that rationalize sentence enhancement will be
subject to reinterpretation, revalorization, and rearrangement. Neitzsche suggests that,
in this process, some of the meaning and purposes will be re-imagined, obscured, or
even lost. So what are the key characteristics of the wider social and cultural context?
It is to these matters that I now turn.
II. The Emotional Landscape of Contemporary Law and Order Politics
Many scholars have commented upon the growing importance of the law and
order and crime control agenda, connecting them to experiences of insecurity and
disorder generated by wider economic, social, and cultural transformations taking
place within Western liberal capitalist democracies informed by new shapes of state
formation.48 Crime and fear of crime has become a key sign of disorder and insecurity
standing metonymically and metaphorically as a sign of these other experiences of
economic, social, and cultural disruptions and transformations. Policing and criminal
justice gain particular political importance as the solution to social problems when
crime is the sign of those wider social ills. The turn to institutions of policing and
criminal justice reflects the fact that in this epoch of modernity these are the social
institutions that have been particularly associated with internal security and good
order.49 It is by way of crime and fear of crime that disorder and insecurity may
48 Zygmunt Bauman, Postmodernity and its Discontents (New York: New York University Press,
1997); Zygmunt Bauman, Violence in the Age of Uncertainty in Adam Crawford, ed., Crime and
Insecurity: The Governance of Safety in Europe (Cullompton: Willan Publishing, 2002) 52; Ian
Taylor, Crime in Context: A Critical Criminology of Market Societies (Cambridge: Polity Press,
1999); Jock Young, Exclusive Society: Social Exclusion, Crime and Difference in Late Modernity
(London: Sage Publications, 1994).
49 See Mark Neocleous, The Fabrication of Social Order: A Critical Theory of Police Power
(London: Pluto Press, 2000).
L. MORAN LESBIAN AND GAY DEMANDS FOR HATE CRIME REFORM
2004]
become embedded in everyday life, through what David Garland identifies as a
criminology of everyday life.50
939
that an
important paradox has emerged within
Garland suggests
this
contemporary landscape of law and order politics. On the one hand, there is the
centrality of crime control that emphasizes the role of the Sovereign State as
guarantor of safety and security. At the same time, there is an increasing identification
of the limits of the state to provide this safety and security. This, he argues, has given
rise to a renewed emphasis upon the punitive aspects of criminal law and criminal
justice. In this rise of punitive segregation, the objective of the traditional state
institutions of crime control are retribution, revenge, and segregation. Rehabilitation
and the welfare of wrongdoers decline in significance.
Contemporary law and order politics connects individual and collective well-
being with enhanced punishment, selective social exclusion, and confinement.
Punitive segregation involves the promotion of more severe state violence, which
takes various forms, including demands for earlier resort to imprisonment over other
non-custodial sentences, longer terms of imprisonment, and more brutal regimes of
punishment. Punitive segregation takes different forms in different location, as it is
shaped by the history of nation-formation. In its most extreme forms it produces mass
imprisonment51 and includes demands for the death penalty. Scholars in the US have
described the move to punitive segregation as a turn toward punishment as an
institutional form of vengence 52 and a practice more akin to institutionalized cruelty.53
Fear, anger, hate, retribution, and revenge are central and connecting emotional
themes associated with this development. It is in this context that the demands for hate
crime reform in general, and sentence enhancement in particular, have been
developed and have taken institutional form.
III. Emotional Attachments to Good Violence
In this section, I will explore in more detail the emotional attachments that may be
forged in the context of punishments. First, I want to return to Murphy and Hamptons
comments about the emotions associated with criminal law:
50 David Garland, The Culture of Control: Crime and Social Order in Contemporary Society
(Oxford: Oxford University Press, 2001) at 16. See also David Garland, The Limits of the Sovereign
State: Strategies of Crime Control in Contemporary Society (1996) 36 British J. Criminology 445.
51 See David Garland, ed., Mass Imprisonment: Social Causes and Consequences (London:
Sage, 2001).
52 See A. Sarat, Vengence, Victims and the Identities of Law (1997) 6 Social & Leg. Stud. 163.
53 Jonathan Simon, Entitlement to Cruelty: Neo-Liberalism and the Punitive Mentality in the
United States in Kevin Stenson & Robert R. Sullivan, eds., Crime, Risk and Justice: The Politics of
Crime Control in Liberal Democracies (Cullompton: Willan Publishing, 2001) 125; Jonathan Simon,
Fear & Loathing in Late Modernity: Reflections on the Cultural Sources of Mass Imprisonment
(2001) 3:1 Punishment & Society 21.
940
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 49
criminal law institutionalizes certain feelings of anger, resentment and even
hatred that are typically directed towards wrong doers, especially if we are the
victims of those wrong doers.54
In this quotation, Murphy and Hampton point to certain emotions: anger,
resentment, hate. More specifically,
law
institutionalizes these emotions.
that criminal
they suggest
The reflection on punishment by Nietzsche, referred to earlier, also makes
reference to some of these emotions, in particular hatred and rage, which connote
anger, ill will, and malice. He also adds others to this list in examining the role of fear
and terror in punishment. The expression of some other emotions associated with
punishment are more difficult to articulate and isolate as they are embarrassing and
pushed underground. To reveal these, he suggests, Let us ask once more: in what
sense could pain constitute repayment of a debt?55 In reply, he concludes that the
satisfaction of an outstanding debt connects pain to the creditors supreme pleasure.
He explains: In exchange for damage he had incurred, including his displeasure, the
creditor received an extraordinary amount of pleasure; something he prized the more
highly the more it disaccorded with his social rank.56 The pleasure arising out of
inflicting punishment is another of the emotions (but one that is rarely talked about).57
Another emotion commonly associated with retribution is vengeance.58 Solomon
explains the resistance to recognizing vengeance as a feature of law by reference to
the general hostility to emotions in relation to law. It is in this context that
Solomons critical analysis of the fate of vengeance as an emotion has particular
significance. Using Solomons work on vengeance, I want to examine the fate of
emotional attachments made in and through the law.
IV. The Fate of Emotional Attachments in Law
As an emotion, Solomon notes, vengeance is understood in a particular way: as
an untempered, immediate, impulsive (irrational), unruly, and uncontrolled response
to wrongdoing. In addition, others draw attention to the way in which the
characterization of vengeance as emotion tends to individualize, personalize, and
pathologize vengeance.59 In contrast to this, punishment as a law-bound practice, is
celebrated as impersonal, tempered, calibrated, measured, and reasonable: an
institution that is a rule-bound, a quintessentially reasoned response to wrong. In this
view, vengeance (as an emotion) has no place in punishment through law. As an
54 Murphy & Hampton, supra note 20 at 63 [emphasis added].
55 Nietzsche, supra note 45 at 197.
56 Ibid.
57 See also Gilles Deleuze & Leopold von Sacher-Masoch, Masochism: Coldness and Cruelty and
Venus in Furs (New York: Zone Books, 1991).
58 See Solomon, supra note 43.
59 See e.g. Trudy Govier, Forgiveness and Revenge (London: Routledge, 2002).
L. MORAN LESBIAN AND GAY DEMANDS FOR HATE CRIME REFORM
2004]
emotion, vengeance, as a legitimate form of punishment, is disavowed. Solomon
challenges this by arguing that, [v]engeance is both an intense emotion and a cool,
calculating strategy.60
941
Shifting the focus of Solomons argument, we can add another dimension.
Vengeance brings together the emotional dimensions of law and the reason of laws
violence. The importance of violence in the meaning of vengeance is illustrated in its
definition as punishment that involves the infliction of injury, hurt, and harm.
Vengeance is a characterization of punishment that highlights the violence of
punishment and thereby the violence of law. It is in this context that the association
between vengeance and emotion has particular significance. Emotion as a category of
denigration,
the place of
vengeance/violence in punishment in particular and in law in general. Through
emotion, the injury and harm that is vengeance is made violence over against
punishment made in the image of the reason of law. Thereby the violence of the law
is disavowed and displaced onto vengeance as a degraded category.61 Solomons
analysis of vengeance as a cool and calculating strategy by which injury and harm
may be inflicted offers not only to re-connect violence to law. More specifically, it
makes that connection by making the violence of vengeance in the image of law: as
an impassioned, rational, but also moral violence.
link with vengeance, works
to disavow
in
its
One context in which the rationality of vengeance is made is through the link
between retribution and vengeance. Through this link the credit/debt metaphor of
retribution is connected to the idea of vengeance. The re of revenge draws attention
to the fact that vengeance is a response to, and the return of, a prior act: a repayment.
This re-turn places vengeance in the frame of a potentially civilizing economy of
violence: just deserts. The term just deserts, in turn, connotes equality, balance,
harmony, and stability
This economy of return is presented as a problematic dimension of revenge.
Revenge may give rise to another return, which may escalate into further acts of
revenge. This is a problem particularly associated with revenge as a practice of
individuals. This brings us to another dimension of the rationalization of vengeance in
law.
In law, vengeance is a practice that takes place in the context of laws monopoly
of violence. In his analysis of laws violence, Derrida notes that European law tends
to prohibit individual violence. This is not, he suggests, because individual violence
poses a threat to particular laws, but because it threatens the juridical order. Law, he
concludes, has an interest in the monopoly of violence. This is not a monopoly at
the service of any particular justice or legal ends but a monopoly that strives to protect
60 Solomon, supra note 43 at 127.
61 See Austin Sarat & Thomas R. Kearns, A Journey Through Forgetting: Towards a Jurisprudence
of Violence in Austin Sarat & Thomas R. Kearns, eds., The Fate of Law (Ann Arbour: University of
Michigan Press, 1991) 209.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
942
the law itself. It is an a priori of law.62 Laws monopoly of violence ensures that the
relation of vengeance to revenge is not a relation that leads to a spiral of escalating
violence. In fact, laws monopoly of vengeance ensures that this cycle is brought to an
early end. Ren Girards work on laws violence as a sacrificial economy offers one of
the better known examples of the capacity of laws monopoly of vengeance to break
the cycle of individual revenge.63
[Vol. 49
At the same time, the institutionalization of vengeance in and through the law
generates problematic effects. For example, Austin Sarat identifies the victims
perceived loss of agency in and through these state practices of vengeance.64 Various
initiatives, such as better police and prosecutorial relations with the victims, and the
development of institutional settings within the criminal justice system for the victim
to directly influence and inform the process, such as victim impact statements, are
examples of attempts to address this state of affairs. Laster and OMalley point to
these as the contemporary sites in which the emotional investments associated with
punitive segregation are being produced and institutionalized.65 In this way, using
violence as a resource to make a claim on the state becomes a way of gaining back the
control that has been lost through violence itself.
It is in this context that the proximity of vengeance and retribution has particular
significance. As an economy of credit to debt, vengeance is made in the image of a
calculation: reason and resource. The emotional dimensions of vengeance are thereby
civilized, legitimized, and made into a moral prerogative. Linking retribution to
vengeance provides a means whereby the emotions and violence are reconnected to
law. It is also a movement that makes laws violence into good violence and the
irrationality of the emotions produced in the context of that violence into the reason of
law.
It is at this point that we need to return to the other emotions of hate, anger, and
malice. As emotions their place in law is frequently denied and disavowed. Solomons
analysis, and my take on the fate of vengeance as emotion and its rehabilitation, also
has significance for these other forbidden emotions. The economy of retribution
provides a means whereby their degraded status as emotions may be reinterpreted and
overcome, rendered invisible. As dimensions of retribution, they become civilized by
being made in the image of reason and rationality and are thereby made to disappear.
Through this process they take their place as a part of laws legitimacy. The
articulation of these emotions as a resource then becomes a matter of rational choice,
a correct response to ones place (ones self) in front of law. In this section the fate of
emotions in law has been explored at an abstract level. I now want to return to the
62 Jacques Derrida, Force of Law, The Mystical Foundation of Authority in Drucilla Cornell,
Michel Rosenfeld & David Gray Carlson, Deconstruction and the Possibility of Justice (London:
Routledge, 1992) 3.
63 Ren Girard, Violence and the Sacred (Baltimore: Johns Hopkins University Press, 1989).
64 Sarat & Kearns, supra note 61.
65 Laster & OMalley, supra note 18.
L. MORAN LESBIAN AND GAY DEMANDS FOR HATE CRIME REFORM
2004]
specific context of hate crime scholarship to explore the fate of the forbidden
emotions in that context.
943
V. The Troubling Emotions of Hate Crime
As already noted, the appearance of hate in the name of the new legal category,
hate crime, gives a certain prominence to emotions in law. Both ardent supporters
of hate crime as a new category of wrongdoing, such as Frederick Lawrence, and
enthusiastic critics, such as Jacobs and Potter, have found this use of hate
problematic and questioned its use in this context. Both supporters and critics
advocate the substitution of bias or prejudice for hate. We will examine how
these substitutions are rationalized and what happens to the emotional resonance of
hate in these substitutions.
Lawrence explains his preference for the term bias by suggesting that hate
crime is a popular term that gives rise to a key misconception. 66 More
specifically, hate, he argues, is too generous a term being a feature of many criminal
acts beyond the specific acts that the phrase hate crime seeks to address, which are
concerned with particular acts where the violence is motivated by legally proscribed
categories of bias. Bias crime, he proposes is a more technical and, thereby, more
precise phrase that can be used to successfully name a distinctive category of
wrongdoing. Two aspects of this argument are of interest here. First, in the
substitution of bias for hate the priority given to emotions in the phrase hate
crime is displaced. Bias is defined not as an emotion per se but as a slanting,
leaning, predisposition, or prejudice. The dictionary offers an extract from William
Blackstones Commentaries, as an exemplar of its meaning, drawing attention to its
juridical roots and significance. The law will not suppose the possibility of bias or
favour in a judge.67 Slanting or leaning, Blackstone suggests here, is contrary to
judgment, which is the application of rule-based reason. In turn, prejudice, a term
Lawrence readily substitutes for bias, also has strong juridical associations, being to
injure through prejudgment, causing injury not only to the one prejudged but to
judgment itself. Again prejudgment suggests judgment without the benefit of law.
While the emotional connotations of hate have been diminished in this substitution,
what remains is an alignment between its substitutes, bias and prejudice, and
impulse, the unruly and the disorderly characteristics associated with the emotions.
Also unchanged in this substitution is the allocation of bias and prejudice to the place
associated with emotions; to the other side of lawwrongdoing and disorder.
That hate is a popular term (in the derogatory sense of popular) is not, in
the first instance, explicitly about the location of emotions in relation to law.
However, Lawrences deployment of the violent hierarchy of the popular (as the
66 Lawrence, supra note 35.
67 William Blackstone, Commentaries on the Laws of England, vol. 3, cited in The Compact Oxford
English Dictionary, supra note 19.
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MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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negative) against the technical (as the positive), I would argue, is the assertion of a
belief in, and a desire for, law as reason. For Lawrence, the popular connotes law as a
phenomenon that is unstable and unruly (too widely drawn) in contrast to the
technical, which connotes law as being capable of a fixed and stable meaning
produced through precision, quintessentially capable of securing order. This
alignment of hate (emotions) with unruly (popular) legal meanings works to reinforce
the separation of emotions and good order. Together the substitution of bias or
prejudice for hate and the characterization of law as a technical practice
epitomizing the pure application of reason, both displaces the role of emotions in law
and reinforces their separation from law.
Jacobs and Potter seem to echo concerns similar to those voiced by Lawrence
that hate lacks precision. 68 They do not, however, restrict their concerns to hate.
Bias or prejudice, they complain, are also concepts that suffer from being
complicated, broad and cloudy … 69 They also differ from Lawrence in their
characterization of the problems they associate with complexity, breadth, and opacity.
For Jacobs and Potter, the turn to law and legality as a technical practice offers less
potential for consolation.
In short, their concerns focus on the ambivalence of the terms bias and prejudice.
Some prejudices, they explain, provoke censure, some are considered innocuous, and
others are considered good. Some relate to hate and some to love.70 Some are
associated with fear and insecurity while others appear to generate self-esteem and
security. Bias or prejudice are not only explained as terms that refer to fantasy, the
irrational, and that which is unconscious, but also as terms that make reference to
practices that have a certain legitimacy based upon experience, being part of
consciousness. Also some prejudices may take the form of established norms, and
may amount to an ideology, a set of more or less elaborated assumptions, beliefs, and
opinions that are espoused as a basis for policy or action.71 Bias, prejudice, and hate
may thus not be confined to the realms of disorder but may be aligned, embedded,
legitimized, and elaborated as good order.
This conclusion would appear to echo Murphy and Hamptons suggestion
referred to above that (criminal) law provides a vehicle whereby certain feelings of
anger, resentment and even hatred … are institutionalized in the law.72 For Jacobs
and Potter the matter then becomes one of politics or, more specifically, the
problematic politics of identity. Whose anger, resentment, and hate gets into the law
and with what effect? Their concern is that hate or bias crime is a new category that
not only mobilizes new prejudice and the emotions associated with it but
68 Jacobs & Potter, supra note 9 at 11-16.
69 Ibid. at 11.
70 See Gail Mason, Not Our Kind of Hate Crime (2001) 12 L. & Critique 253.
71 Jacobs & Potter, supra note 9 at 13.
72 Supra note 20 at 63 [emphasis added].
945
L. MORAN LESBIAN AND GAY DEMANDS FOR HATE CRIME REFORM
2004]
exacerbate[s] rather than ameliorate[s] social schisms and conflicts.73 Their primary
recommendation is to repeal the new wave of hate crime laws and enforce generic
criminal laws evenhandedly and without prejudice.74 In this understanding, the fate
of the emotions is finally secured in the reduction of prejudice and bias to disorder. In
part, this is surprising, having already identified the possibility of prejudice and bias
being institutionalized in the name of good order. The emotional dimensions of the
generic criminal law are erased and denied in the movement from hate crime to
general criminal law. In this conclusion, Jacobs and Potter assign emotions to a now
familiar place; one that is remote from the law.
A third and final example taken from contemporary hate crime scholarship offers
something of a different point of departure. Nancy Rosenblum, in an essay that
introduces a collection entitled Breaking the Cycles of Hatred,75 explains:
Every injustice arouses anger, or should. A capacity to understand and feel
injustice is the mark of moral maturity; a taste for oppression is the mark of
moral deformation. … of the many faces of injustice, violent hatred stands out.
These crimes betray exceptional viciousness and inflict exceptional pain. They
evoke especially strong feelings because they exhibit none of the randomness
or misfortune of many forms of injury. … [T]he injuries suffered … provoke
enduring bitterness. The response of victims … is a particularly deep
resentmenta moral anger.76
In this view, justice is aligned with a series of emotionsanger, bitterness, and
resentment. More specifically, these emotions play a positive role, being associated
with maturity, and having a legitimate role in unearthing injustice. Maturity in this
context connects the emotions with due deliberation and the lack of impulse. In turn,
the emotions are connected to the severity of the punishment offering a rationale for
enhanced punishment. The fate of these emotions ultimately takes a different turn:
Victims want more than to hold the perpetrators responsible; they want to cause
them and their supporters suffering in turn. An unruly longing for revenge is
validated by the vindictiveness of the crime. Certain crimes usher in that
destructive dynamic: a cycle of hatred.77
The phrase [v]ictims want more suggests that these emotions have another
quality, a dangerous surplus. Here the emotions clearly take on a more familiar
mantle; they become unruly, destructive, and disorderly. The phrase cycle of
hatred connotes disorder in perpetuity. Much of the rest of the collection, Breaking
the Cycles of Hatred: Memory, Law and Repair, is devoted to mapping instances,
contexts, and mechanisms that promote and sustain cycles of hatred. No single
73 Ibid. at 144.
74 Ibid. at 145.
75 Nancy L. Rosenblum, Introduction: Memory Law and Repair in Martha Minow, ed., Breaking
the Cycles of Hatred: Memory, Law and Repair (Princeton: Princeton University Press, 2002) 1.
76 Ibid. at 1.
77 Ibid.
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solution is offered, but the ambivalence of each is brought to light. Legal practices
and the criminal trial provide a vehicle for memorializing violence, which is essential
to personal integrity, repairing, and comforting, but also a thing that fuels cycles of
hatred.78 The already noted techniques of sacrificial victim and the role of the
monopoly of violence, both of which offer mechanisms that might work to sustain the
alignment of emotions with justice, are condemned on the basis that they fuel dreams
of revenge. What is the fate of the emotions in Rosenblums argument? Perhaps, at
worst, they take up a familiar position as being antithetical to order.
The fate of the emotions in both Lawrence and Jacobs and Potter is disappearance
and denial. Lawrences suggestion that bias and prejudice offer more technical
and thereby more precise terms, can be read as an attempt to reconfigure emotions
according to a refined characterization of the law; as a technical practice. Here
emotions are apparently made impersonal, tempered, calibrated, measured, and
reasonable. Jacobs and Potters conclusion that the ordinary crime should prevail
appears to forget the emotional investments already being made in that context. If
Rosenblum differs from other hate crime scholars it is in drawing attention to the
ambivalence of the emotional investments, being both a part of good order and
antithetical to it. Rosenblums suggestion that an important task is to de-mythologize
law is, at best, a call to take the emotional dimension of law more seriously, not to let
it slip back into the reduction of emotions to disorder that her analysis ultimately
threatens.
VI. Punitive Segregation and Lesbian and Gay Politics of Hate
Crime: A Note of Caution
Hate crime would appear to offer considerable potential to generate and deploy a
wide range of emotions in and through the law; hate, anger, fear, and pleasure to name
but a few. It also appears as a discourse informed by dominant ideological
assumptions about law and the emotions that displace and deny the significance of
emotions in law. Lesbian and gay engagement with the discourse of hate crime offers
much potential for the generation and investment of troubling emotions in that
particular context and for their systematic erasure.
There is, however, a need for caution here. Writing in the early 1990s, in a
Canadian context and advocating the application of hate crime to homophobic
violence, Cynthia Petersen noted the connection between hate crimes and
retributive justice. It was, she argued, a connection that raised doubts about the
politics of the lesbian and gay turn to hate crime as a response to the epidemic of
homophobic violence. She argues, however, that the legitimacy of retribution need not
be of concern for lesbians and gay men. As Petersen noted, deterrence offers a
different credible rationale for enhanced punishment whose legitimacy at the time of
her writing appears to have been less tainted than it perhaps is today. She concluded
78 Ibid. at 4.
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L. MORAN LESBIAN AND GAY DEMANDS FOR HATE CRIME REFORM
2004]
that enhanced punishments might be rationalized by reference to deterrence:
Deterrence must ultimately be our goal if we are to survive the epidemic.79 In the
UK, activist Peter Tatchells advocacy of the expansion of sentence enhancement to
all vulnerable communities, including lesbian and gay communities, resists any
overt reference to revenge as a rationale for those changes. He highlights the
importance of the educational role of law, which again is more associated with a
deterrent model of punishment than that of punitive segregation. Both Paterson and
Tatchell seek to directly and indirectly distance any resort to a tendency towards
retribution in their sexual politics.
Other features of lesbian and gay engagements with the politics of hate crime also
problematize the reduction of that political agenda to a conservative politics of law
and order associated with revenge and retribution and the emotions of fear, hate, and
anger commonly found in that context. Within a lesbian and gay context, many of the
problematic emotional dimensions of punishment outlined above will not come as a
surprise. The recent histories and, in many contexts, the contemporary experience of
lesbians and gay men, involves being the object of these emotional investments made
in and through laws violence. Same-sex practices have long suffered the ignominy of
being outlawed, characterized as monstrosity80 and impurity,81 and treated as an
immediate and potentially devastating threat to the individual, the immediate
community, and the very state itself. Thus characterized, lesbians and gay men have
been subjected to the full range of the emotional investments made in and through
laws violence. The expectation is that lesbian and gay attempts to name homophobic
violence as bad violence (a violence associated with disorder rather than good order)
offers to expose and challenge the awful past and present of the emotional
attachments made within a politics of heterosexuality. Lesbian and gay demands for
state violence for purposes of safety and security do not so much promote the status
quo as offer a significant challenge to one of its key dimensions, hetero-normativity.
At the same time, however, these demands for inclusion, produced within the
parameters of hate crime, offer to reinforce a different status quo: the priority of a
law and order politics that places violent crime as the problem of social disorder and a
more brutal regime of criminal justice as the solution. The connection between
retribution and criminal law that is being made in the context of a sexual politics of
hate crime provides a means whereby problematic emotions might inform and infuse
the law albeit in a different context for a different politics. While there may be no
necessary connection between lesbian and gay demands for the particular state
79 Petersen, supra note 3 at 248.
80 See Edward J. Ingebretsen, At Stake: Monsters and the Rhetoric of Fear in Public Culture
(Chicago: University of Chicago Press, 2003).
81 For an overview of the literature, see Leslie J. Moran, Lesbian and Gay Bodies of Law in
Diane Richardson & Steven Seidman, eds., Handbook of Lesbian and Gay Studies (London: Sage,
2002) 291. See also Eve Kosolsky Sedgwick, Epistemology of the Closet (Hemel Hempstead:
Harvester Wheatsheaf, 1991); Mason, Spectacle of Violence, supra note 4.
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violence associated with punitive segregation, there may now be an asymmetrical
historical alignment.
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Petersens suggestion that the legitimacy of retribution need not be questioned in
that context is, I would suggest, no longer viable. In the wider contemporary context
of law and order politics in which retribution (punitive segregation) has become the
dominant position, it will be insufficient to highlight a lesbian and gay preference for
deterrence. The separation between retribution and deterrence is also no longer a
viable assumption. Their interconnection also needs to be considered. As noted
earlier, particular attention needs to be paid to their contemporary social and cultural
resonances, as this will effect the manner of their wider signification. Nor can it be
assumed that retribution is not a distinct (albeit hidden) part of the sexual politics of
hate crime.
It is not my intention to suggest that lesbian and gay resort to hate crime and,
thereby, demands for access to state violence for safety and security is necessarily
reducible to the conservative law and order politics of punitive segregation outlined
above. Nor is it my intention to suggest that the emotional investments being made in
and through this politics of law reform are confined to those of hatred, anger, cruelty,
or revenge. Such a point of departure would be too crude and simplistic. However,
when refracted through the dominant law and order politics of punitive segregation,
the various themes that rationalize sentence enhancement by reference to deterrence
or education will be subject to reinterpretation and rearrangement. At best, lesbian and
gay alignments with deterrence may well be obscured, re-imagined, or even lost. Thus,
while for Petersen the utilitarian/consequentialist rationale for punishment has the
potential to legitimate and promote demands for rehabilitation, as much as promote
longer and more severe incarceration, it is the latter aspects that will be taken to be the
key rationale. It is in this context that the logic of lesbian and gay demands for state
violence will have particular significance and influence as they resonate with the logic
of enhanced punishment feeding the turn to punitive segregation.
Conclusion
The objective of this paper has been to add a new dimension to the analysis of
lesbian and gay law and order politics of violence and safety. I have argued that the
political demands being generated through this sexual politics feed a law and order
politics of retribution and revenge. It is in this conjunction that a politics of sexual
identity informed by a desire for recognition seems to be giving form to a politics of
recrimination and rancour, which, following Wendy Browns critique, seems to
disdain freedom rather than practice it.82 My particular concern has been to explore
82 Brown, Wounded Attachments, supra note 22 at 202.
L. MORAN LESBIAN AND GAY DEMANDS FOR HATE CRIME REFORM
2004]
some of the emotional attachments to unfreedom that can be discerned in contemporary
political formations ostensibly concerned with emancipation.83
949
It is in the guise of reason and civility that the lesbian and gay emotional
attachments of hate, anger, malice, and revenge take shape through demands for
access to state violence. At the same time, it is also in this form that these emotional
attachments disappear, being disavowed in the name of law as reason and moral right.
This disavowal offers to dignify the hate and malice that is connected to this sexual
politics by naming it reason and justice. I would suggest that it is through these
connections that attempts to turn the state against itself is always/already informed by
the virtues and values that lesbians and gay men are seeking to challenge.
In drawing attention to the emotional investments that are being made in and
through a lesbian and gay politics of law and order it is not my intention to follow in
the footsteps of Jacobs and Potter to dismiss the turn to hate or bias crimes on the
basis that they will be ineffective or destructive of social cohesion. Nor is it my
intention to suggest that hate crime activism should be abandoned merely because it
necessarily appears to generate a cycle of revenge. Maybe if heterosexual violence is
to be taken seriously, as disorderly behaviour, and its everyday operation is to come to
an end, then retribution and revenge in conjunction with laws monopoly of violence
have a part to play. Furthermore, it may be necessary to invoke retribution and
revenge in the context of the most intimate and banal acts (the minor incivilities)
through which that heterosexual order comes into being. The experiences of lesbians
and gay men offer countless examples of their vigorous use in relation to the smallest
and the most intimate details of same-sex relations in the production of (heterosexual)
order. Social order appears to be generated by way of an obsessive concern with
minor incivilities. It is problematic merely to criticize a well-established and
legitimated use of laws violence merely because it is being used to give birth to a new
social order. This paper is a call to bring these investments into view so that the terms of
a lesbian and gay commitment to hate, malice, and vengeance can be discussed and, if
necessary, affirmed. It is also a call for the consideration of alternatives.
My objective is to provoke further debate on these issues. In disturbing the
relationship between sexuality, state, and violence being forged in the context of a
lesbian and gay politics of violence and safety, I seek to draw attention to the complex
and contradictory nature of that relationship. My hope is that this paper may help
contribute to a debate that will query the alliance that lesbians and gay men are
making with law and order.
83 Brown, States of Injury, supra note 22 at xii.
