Deadly words: Atate power and the entanglement of speech and violence in hate crime

Law and Critique

Volumn 12, Issue 3, 2001, Pages 223-252

  Rosga, Annjanette ^a  

^a UNIVERSITY OF COLORADO   (United States)

Author keywords

Bias crime; Free speech; Hate crime; Identity; Law; Narrative; Police; Racism; Semiotics; Violence

Indexed keywords

EID: 34247747910     PISSN: 09578536     EISSN: 15728617     Source Type: Journal    
DOI: 10.1023/A:1013788321729     Document Type: Article

References (38)

1. S. Felman, The Literary Speech Act: Don Juan with J.L. Austin, or Seduction in Two Languages, Catherine Porter, trans. (Ithaca: Cornell University Press, 1983), 94,
2. quoted in J. Butler, Excitable Speech: A Politics of the Performative (New York: Routledge, 1997), 11. The terms 'hate crime', 'bias crime', 'bias-related crime', and 'bias-motivated crime' are used interchangeably throughout this article. Hate, bias, bias-related, and bias-motivated are all modifiers used within different criminal jurisdictions in the US.
3. For an excellent review of the history of the First Amendment in the US as it relates to efforts to restrict hate speech, see S. Walker, Hate Speech: The History of an American Controversy (Lincoln, NE: University of Nebraska Press, 1994).
4. R. Delgado, 'Words that Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling', Harvard Civil Rights-Civil Liberties Law Review 17 (1982), 133-181;
5. M. J. Matsuda, 'Public Response to Racist Speech: Considering the Victim's Story', Michigan Law Review 87 (August, 1989), 2320-2381.
6. Both rpt. in M. Matsuda et al. Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder, CO: Westview, 1993). (Matsuda argues further for putting the historical context of racism, specifically, into the law. She suggests the use of three criteria in identifying racist hate messages: '1. The message is of racial inferiority; 2. The message is directed against a historically oppressed group; [and] 3. The message is persecutory, hateful, and degrading' [1989: 2357J.)
7. H.L. Gates, Jr., 'War of Words: Critical Race Theory and the First Amendment', in Gates, Jr. et al., Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties (New York: New York UP, 1994), 17-58.
8. Idem., at 30, 32.
9. J. Butler, supra n. 2, at 37.
10. W. Brown, States of Injury: Power and Freedom in Late Modernity (Princeton: Princeton University Press, 1995).
11. Idem., at 27.
12. For an in-depth analysis of these assumptions in US hate crime sentence enhancement laws, see A. Rosga, 'Bias Before the Law: The Rearticulation of Hate Crimes in Wisconsin v. Mitchell, Journal of Law and Social Change 25(1) (1999), 29-63.
13. Data from the case is drawn from interviews conducted during a larger research project on US police responses to hate crime.11 Maryland's hate crime statute, §470A(b)(3)(I), was passed in 1988 but had been used fewer than ten times, statewide, and only once before in Montgomery County, by March of 1992 when Ayers and Riley stood trial. (R. Dean, Montgomery County State's Attorney, Interview, 25 October 1996.) Ayers appealed his conviction and his case was heard by the Maryland Court of Appeals in September of 1993; judgment was affirmed (John Randolph Ayers, Jr. v. State of Maryland, 335 Md. 602; 21 July 1994).
14. Interestingly, though, when any of the interviewees would make a claim for the exceptional quality of the Wheaton case, he or she would usually temper the remark with an account of 'that one other incident'. The 'one other incidents' added up to perhaps a half dozen or more distinct incidents. For instance, the prosecutor remembered a JapaneseAmerican high school student who was 'stomped and beaten and kicked' by kids 'chanting 'gook, gook, gook' '; the county human relations specialist recalled 'a few' race-based beating incidents that never made it to court. But, consistent with this officer's recollection, no one remembered other life-threatening assaults.At the time of their interviews in 1996, only one of the men remained a patrol officer with the Wheaton-Glenmont police station. All of the others had been promoted and/or transferred to other positions.14 According to the 1990 US Census data on Montgomery County (neither Wheaton nor Aspen Hill-specific data were available), 90.6 percent of residents 25 years and older had attained a high school diploma and 49.9 percent held bachelor's degrees. By far the largest class of worker in the county was 'private wage and salary workers', distantly followed by 'government workers'. Per capita income in 1990 was 325,591; the median household income was $54,089. Only 4.2 percent of persons were living below the poverty line (although 25.8 percent of 'female householder families' with children under 5 years of age lived below the poverty line). Out of a total population of 757,027, the Census categorized 77% as white, 12% as black, 8% as Asian or Pacific Islander, 2.6% as 'other race', and 0.4% as 'American Indian, Eskimo, or Aleut'. Apart from racial designators, 7% of the population was identified as being of Hispanic Origin.
15. All of the names of law enforcement officers involved in this case have been changed to protect some who requested anonymity.
16. Unknown to the officers, McCrae had a medical condition that caused her to lose all of her hair - she had been wearing a wig that was knocked off in the struggle with Ayers.
17. Susan E. Martin and James Garofalo have conducted research comparing the antibias procedures of police departments in New York City and Baltimore City, Maryland.See S.E. Martin, ' 'A Cross-Burning is Not Just an Arson': Police Social Construction of Hate Crimes in Baltimore County', Criminology 33(3) (1995). 303-326;
18. J. Garofalo and S.E. Martin, 'The Law Enforcement Response to Bias Motivated Crimes', in R.J. Kelly, ed., Bias Crime: American Law Enforcement and Legal Responses (Chicago: Office of International Criminal Justice, The University of Illinois at Chicago, 1993), 6480;
19. S.E. Martin, 'Investigating Hate Crimes: Case Characteristics and Eaw Enforcement Responses', Justice Quarterly 13(3) ( 1996), 455-480.
20. The first evaluation of a law enforcement anti-bias unit in the US was quite positive: C. Wexler and G.T. Marx 'When Eaw and Order Works: Boston's Innovative Approach to the Problem of Racial Violence', Crime and Delinquency 32(2) (1986), 205-223.
21. However, a decade later, when the prevalence of such units had grown, a national review of their functioning was considerably less glowing: S. Walker and C.M. Katz, 'Eess Than Meets the Eye: Police Department Bias-Crime Units', American Journal of Police XIV(l) (1995), 29-48.
22. C. Markwood, Montgomery County Police Department Hate Crimes Officer, Interview, 10 March 1995. Although there is a community relations officer in every district, that officer has no responsibility for hate crimes. The 'hate crimes officer' keeps all bias crime reports filed in the county and transfers their essentials to a monthly form submitted to the Maryland State Police. The State Police, in turn, transfer these statistics to the federal Uniform Crime Report forms which are fed into the Federal Bureau of Investigation's annual tabulation of national crime statistics.19 The hate crime narrative was further supported by information the officers learned subsequently: that Ayers had had an altercation with African-Americans at a convenience store a few nights prior to the assault on McCrae and Guillory.20 Interview with Major John Cook, Maryland State Police, 6 May 1996. In discussing nationwide trainings to implement the federal hate crime statistics act, Major Cook recalled, 'I used to hear the story of logistical nightmares of trying to.,. get people to thinking the same way and coding the same way. I mean, the FBI did a great job working out some areas that we could role-play in the training. Have people fill out the form and make sure we were all playing off the same sheet of music. You know, from Hawaii to California, California to ⋯ Alaska - trying to get everybody to read these things the same way'.21 This assessment is supported by numerous interviews with victims, victim-service providers, and attorneys in California and Maryland, United States, 1992-1996 (transcripts on file with author).
23. Indeed, many anti-hate crime social movement groups make this same association. For a more detailed discussion of the links between police brutality and anti-hate crime initiatives, see A. Rosga, 'Policing the State', Georgetown Journal of Gender and the Law, Inaugural Issue, Summer (1999), 145-171.
24. J. Boone, Montgomery County Police Department, Interview, 24 October 1996.
25. Washington Post, 4 Feb. 1993: B1.
26. R. Dean, Interview, 25 Oct. 1996.26 When asked why no forensic tests for lighter fluid had been conducted, one investigator laughed and said, 'Ya gotta remember, this was pre-O.J.', a reference to the internationally televised trial of former football star O.J. Simpson for the murder of his exwife and her friend. The acquittal of Simpson turned largely upon the accuracy of forensic evidence such as DNA in blood stains, and on the veracity of police accounts of the 'chain of custody' of this evidence. By implication, the Wheaton investigator suggested that 'preO.J.', forensic evidence wasn't as important. Other officers claimed the smell of lighter fluid was simply unmistakable, so forensic testing was never considered necessary.27 For a discussion of the assumptions embedded in legal and culturally hegemonic connotations of 'motive' in hate crime law, see A. Rosga, 'Bias Before the Law', supra n. 10.
27. J. Favret-Saadá, Deadly Words: Witchcraft in the Bocage (Cambridge: Cambridge University Press, 1969), 20.
28. Idem., 4.
29. On class associations with bigotry see A. Rosga, 'Ritual Killings: Anti-Gay Violence and Reasonable Justice', in Joy James, ed., States of Confinement: Policing, Detention and Prisons (New York: St. Martin's Press, 2000), 172-190. For a discussion of the movement against hate crime as part of a hegemonic project, see Rosga 1999, supra n. 22.31 Butler has argued that this is precisely the formulation Matsuda uses to advocate hate speech regulation: 'In the work of Mari Matsuda, hate speech ⋯ reinvokes and reinscribes a structural relation of domination ⋯', but Butler objects to the presumption that hate speech is always 'felicitous', that it always achieves its subordinating ends (J. Butler, supra n. 2, 18). I will argue below that when hate speech accompanies violence and anchors its meanings, it becomes much more difficult to argue against the view that alternative meanings are foreclosed.32 J. Cook, supra n. 20.
30. M. Foucault, Discipline and Punish: The Birth of the Prison, Trans. A. Sheridan (New York: Vintage Books, 1979), 37.
31. Quoted in Walker (supra n. 3), 65.
32. J. Thompson, Studies in the Theory of Ideology (Berkeley: University of California Press, 1984), 57.
33. J. Butler, 'Burning Acts: Injurious Speech', in Anselm Haverkamp, ed., Deconstruction is/in America: A New Sense of the Political (New York: New York University Press, 1995), 149-180 at 171.
34. Idem., 153.
35. Idem., 153.
36. A. Sarat and T.R. Kearns, 'Making Peace With Violence: Robert Cover on Law and Legal Theory', in Sarat and Kearns, eds., Law's Violence (Ann Arbor: University of Michigan Press, 1993), 211-250, 218.
37. As Sarat and Kearns put it, 'Under the forces of critical theory and deconstruction, the use of the word violence proliferates.,. Where once it seemed quite obvious that when one talked about law's violence one would be referring to the direct, unmediated infliction of physical force by officials invested with legal authority, today, critical theory and deconstruction.,. [threaten] to undo the subject itself. If everything is violent, then the word and the idea lose their meaning and their normative and critical bite.,. Thus, the first act in the effort to understand law's forceful, coercive character must be a 'violent' act of repositioning our language; we must insist on clarity and distinctiveness against our better understandings of the dangers of such insistence'. A. Sarat and T.R. Kearns, 'Introduction', Law's Violence (op. cit., fn. 38, 1-22), 8-10.
38. J. Butler, supra n. 35, 153.42 As well it could be argued that by providing physical evidence of bigotry, hate crime effectively calls attention to the social context in which the violence has occurred, and which may bear some responsibility for that violence. The startling impact of the 1998 Matthew Shepard case on public talk about societal responsibility for the climate of hostility against homosexuality - a climate that makes anti-gay homicide an available avenue of violent expression - suggests the violence itself may have effects that are counter-hegemonic as well as supportive of cultural norms. However, this has not often been the case. Rather, the term hate crime has often helped to support readings of violent attacks that restrict blame to particular individuals or sub-communities.