May 05, 2006

Answering the Question

Hate crime law is based on the perpetrator's motivation. One can commit a hate crime against a white, middle aged, abled, heterosexual male if the motivation for the crime was hatred of his race, age, ability, orientation or gender. As far as I know, there's nothing in hate crime legislation that mandates higher penalties for those who perpetrate crimes against minorities, the young or old, disabled, gay or female. Higher penalties may be given by judges or juries just because we're accustomed to thinking of bigotry as directed only against the less powerful, but I don't think it's in the text of the hate crime legislation.

Sentencing law distinct from hate crime law does provide higher penalties against those who target the most vulnerable, but this is not due to the perpetrator's motivation. Rather, it is an attempt to shift the incentive to go after very young, old, physically or mentally disabled targets. Normally these are the easiest people against whom to commit crimes -- hence the phrase "like stealing candy from a baby." Enhanced penalties, however, change the equation of risk.

I don't think statistics show women are more likely to be victims of crime, especially of stranger crime. Women are more likely than men to be sexually assaulted and assaulted by intimates, and VAWA was a product of states' prosecuting these crimes insufficiently (just as incidents of under-enforcement like that in Mississippi Burning birthed federal civil rights and hate crimes legislation), but child pornography already is a federal crime and I doubt that anyone pursues pornographers who exploit girls less vigorously than those exploiting boys. That we typically think of women as the victims of sex crimes probably is balanced by the existence of NAMBLA, which conservatives like Hadley Arkes hold up as reason to ban all homosexual sex.

Women have the right to topless equality in D.C. and New York State due to court rulings. However, gender- discriminatory rules on nudity might get past heightened scrutiny* based on nuisance, the rationale Texas uses to bypass the Equal Rights amendment to the state constitution in prosecuting women for toplessness. Also, recall that the Supreme Court has found women's exposed nipples to be a plausible threat to public health, safety, and welfare, and I doubt that Roberts and Alito are going to switch from Rehnquist's and O'Connor's postion on the matter.

* U.S. v. Virginia didn't create a strict scrutiny standard for gender. In writing the majority opinion, Ginsburg dared only to go as far as demanding that the state show an "exceedingly persuasive justification" -- and even that produced a Rehnquist concurrence -- rather than using the language of "narrowly tailored" and "compelling governmental interest," phrases that applied to gender discrimination likely would have lost her Kennedy's vote.