Federal law defines hate crimes as involving “bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person.”
The D.C. Code also ties hate crimes to specific offenses:
§ 22–3701. Definitions.
For the purposes of this chapter, the term:
(1) “Bias-related crime” means a designated act that demonstrates an accused’s prejudice based on the actual or perceived race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibility, homelessness, physical disability, matriculation, or political affiliation of a victim of the subject designated act.
(2) “Designated act” means a criminal act, including arson, assault, burglary, injury to property, kidnapping, manslaughter, murder, rape, robbery, theft, or unlawful entry, and attempting, aiding, abetting, advising, inciting, conniving, or conspiring to commit arson, assault, burglary, injury to property, kidnapping, manslaughter, murder, rape, robbery, theft, or unlawful entry.
The only possible crimes that would seem a possible basis for the charge would be unlawful entry or property damage, though posting on a public board would not seem to fit either crime as a facial matter.
As previously discussed (and here), the concern with hate crimes has always been that the expanding definitions can sweep into areas of free speech or viewpoint discrimination. The rollback on free speech in the West has included the use of such laws to target unpopular or offensive speakers.
The University is to be commended for its quick and determined response to these postings. However, the immediate treatment of the posting of such an incident as a hate crime leads to the question over what now constitutes a hate crime. There is also the question of what happens to students who have images that are deemed offensive in their dorm rooms on as part of public statements. If a student includes a swastika or KKK image as part of an exercise of free speech, would they be expelled? There are a host of images that are viewed as offensive by students for cultural or religious or racial reasons. It is not clear what images would be deemed as hateful and grounds for discipline. For example, would students be allowed to create their own racist or intolerant club if it did not receive university funding or take any actions (beyond speech) directed toward other students? The question is where this line is drawn and explained for students and employees. The lack of clarity itself can have a chilling effect for students, though some may welcome such a chilling for this type of speech. Yet, when such images can be treated as potential criminal matters for referral to police, there should be clarity in where that line is drawn.
What do you think?
Here is the letter from President Knapp:
All of us were shocked several weeks ago by the discovery of swastikas in International House. With the help of GW Hillel’s executive director, Rabbi Yoni Kaiser-Blueth, and leaders of Jewish student organizations, the university has offered support and reassurance to students affected by this abhorrent act. Meanwhile, officers who have received anti-bias training have worked with our Office of Diversity and Inclusion in investigating the incident.
In light of that event, we were dismayed to discover this morning a new posting of a swastika, once again in International House, on the bulletin board of the Zeta Beta Tau fraternity. When the university learned this morning about the swastika’s presence, officers of the University Police Department responded immediately, both removing the swastika and launching a new investigation, which now includes the Metropolitan Police Department.
A member of Zeta Beta Tau has now admitted posting the swastika, which he says he acquired while traveling in India over Spring Break. While the student claims his act was not an expression of hatred, the university is referring the matter to the MPD for review by its Hate Crimes Unit. At the same time, information we have developed through our investigation of the swastikas discovered several weeks ago has led us to conclude that that incident should also be referred to the Hate Crimes Unit.
Since its adoption nearly a century ago as the symbol of the Nazi Party, the swastika has acquired an intrinsically anti-Semitic meaning, and therefore the act of posting it in a university residence hall is utterly unacceptable. Our entire community should be aware of the swastika’s association with genocide perpetrated against the Jewish people and should be concerned about the extremely harmful effects that displaying this symbol has on individuals and on the climate of our entire university community. The university will embark on a program of education to ensure that all members of our community understand the damage that symbols of hatred do to us all.
The George Washington University has a deep commitment to principles of inclusion, consistent with our namesake’s affirmation of religious freedom when he wrote in his letter to the Hebrew Congregation in Newport, Rhode Island that the government of the United States “gives to bigotry no sanction.” We must work together to guarantee that all our students are safe from expressions of bigotry and hatred.