Thought And Crime

Michael D. Peabody March/April 2008
On July 1, 2007, Satendar Singh, a 26-year-old Sikh American was attacked by a group of six men while enjoying an early Independence Day picnic with friends at a park in Folsom, California. According to news reports, the attackers noticed that Singh was dancing with both men and women and did not appear to have a female date. The attackers began hurling racist and anti-gay invectives.

When Singh and his group attempted to leave, the attackers blocked Singh's path and one of them struck Singh in the head. Singh fell to the ground unconscious, his head bleeding profusely. On July 5 his life support was removed. Two men with alleged ties to an extremist "Christian" group are standing trial, and some believe that they were spurred on to an act of violence by the rhetoric of the group.

The U.S. Department of Justice defines a "hate crime" as "an offense motivated by hatred against a victim based on his or her race, religion, sexual orientation, handicap, ethnicity, or national origin." The definition may be simple, but it is difficult to determine whether the evidence of hatred is actually related to the crime or is instead a protected form of expression.

There is certainly nothing wrong with a tolerant, peaceful, and fair society, which hate crimes laws presumably bolster. But there is a dark side to this legislation that threatens to squelch free speech and freedom of conscience, particularly when evidence of one's beliefs and associations are sufficient to secure a criminal conviction.

Prior to the advent of state hate crimes legislation, which arose in the latter half of the 1900s and now exists in 46 states and is in the process of being ratified nationally, the mental state of the criminal, or mens rea, was only considered insofar as it would demonstrate that the defendant knew, or should have known, what types of action were available and chose to commit an act that violated the standards of the community.

Motive was used as a forensic factor to determine whether a particular defendant committed an act where there was only circumstantial physical evidence. For example, a wife might have taken out a million-dollar life insurance policy on her husband two days before his body was discovered in a lake. A jury would review this evidence along with other pieces of information and decide the wife's guilt or innocence.

Criminal law recognizes that the term intention is limited to the mental decision necessary to achieve a particular overt act. Murder, for instance, is defined as the "killing of one human being by another with malice aforethought." Even the intent to murder is limited to the specific intent to kill or do serious bodily injury, or willful and wanton life-threatening conduct. First-degree murder is differentiated from the lower forms, but the elements of premeditation and deliberation require that the defendant plan the crime with a "cool mind." In other words, the person, for however brief a time, planned to commit the act. Thus, a fit of passion ending in murder would not classically be considered a first-degree murder but would instead be considered voluntary manslaughter.

Of course, these elements differ from jurisdiction to jurisdiction, and the courts give prosecutors the discretion to determine how to file their charges.

Recently, legislators and the courts have begun to expand upon the concept of mens rea to enhance sentencing based not only on the "coolness" of mind, but on the content of thoughts. If the defendant has demonstrated a strong prejudice or bias against a protected group of people, based on things such as race or sexual orientation, then this could actually constitute a separate criminal element that would significantly increase punishment.

At its founding, the United States emerged from the polymorphic soup in which church and state were twisted together, and where thought and action were both criminally actionable, and recognized the imperative of freedom of conscience. This concept had eluded kings and prelates, and even the Protestant reformers had plunged their swords into dissidents and plundered the villages of those they considered damned. As America struggled to its feet following the Revolution, it established its strength not on tyranny or oppression, but rather in the freedom of conscience.

The idea that people can be tried for their thoughts and ideas is foreign to American sensibilities, but we should not forget that it is the norm in most of the rest of the world and has been for thousands of years. From Socrates' death sentence for "corrupting the youth of Athens" by speaking out against their militaristic policies, to the execution of Christ for offending the religious and political powers of the day, to the trial of Galileo for daring to express his view that the Earth traveled around the sun, Western society has been built on the deaths of those who dared think or express certain thoughts. Before those examples are buried with antiquarian dust, let us consider that much of the modern world, from the countries of the Middle East to dictatorships in Asia, still punishes thoughts. Dictators such as Adolf Hitler, Idi Amin, and Saddam Hussein and their tyrannical brethren have killed for a less than faithful glance or the mere critical wrinkle of a forehead.

Today many Western nations punish unsympathetic groups such as neo-Nazis, racists, and anti-gay activists for their beliefs, which they are determined to have either through expression or association. Even our Canadian neighbors have taken the step of punishing thought that has wandered out of the mind in the form of expression.

In 2002, Rev. Stephen Boissoin, a Calgary youth pastor and former chairman of the Concerned Christian Coalition, wrote a letter to the Red Deer Advocate, a local newspaper. In the published letter the conservative Boissoin expressed his concerns that children were being taught acceptance of the homosexual lifestyle.

He wrote: "Children as young as five and six years are being subjected to psychologically and physiologically damaging pro-homosexual literature and guidance in the public school system; all under the fraudulent guise of equal rights."

When he read the letter, University of Calgary professor Darren Lund filed a complaint against Boissoin with the Alberta Human Rights *and Citizenship* Commission. During a July 20, 2007, hearing Lund told the court: "Declaring a holy war on homosexuals, backed by weapons of God and the moral majority, attacks the homosexual community in a way that is demeaning and humiliating."

In November 2007, the Human Rights Panel ruled against Boissoin, stating that his 2002 letter had exposed homosexuals to "hatred and contempt" and may have been indirectly responsible for the beating of a homosexual teenager two weeks after the letter was published.6 As a result, in Canada, marginally negative speech may be interpreted as hate speech, and any physical conduct of a third party, regardless of how remote, can be blamed on the "hate" speech.

The decision is pending, but if he loses, the letter could cost Boissoin up to a $10,000 fine. The Canadian Civil Liberties Union (CCLU) has remained on the sidelines during this debate. The likelihood of a decision against Boissoin is not certain, but it does raise the specter of what could happen if the term "hate crime" is bifurcated, and hate, broadly interpreted to include religious beliefs, becomes a crime in and of itself. If that happens, then "don't ask, don't tell" will become the guideline for any beliefs that others might find offensive.

In the United States, the "Local Law Enforcement Hate Crimes Prevention Act of 2007" ("Kennedy-Smith Act")(S. 1105 / H.R. 1592) would expand upon the current hate crime provisions of 18 U.S.C., Section 245 ("Section 245"),which has existed for more than 40 years. Section 245 was passed in the wake of the civil rights movement and allows the federal government to help investigate and prosecute bias-motivated attacks based on race, color, national origin, and religion, and because the victim was attempting to exercise a federally protected right. Section 245 was originally designed to make it possible for the federal government to step in when state or local officials were unable or unwilling to prosecute hate crimes. Kennedy-Smith adds actual or perceived sexual orientation, gender, and gender identity to this list.

Under Section 245, an arsonist who burned a Pakistani restaurant in Salt Lake City on September 13, 2001, was sentenced to 51 months in federal prison after pleading guilty to a hate crime. However, the federal government could not intervene in a July 2005 Texas case in which four men brutally attacked a gay man with a vacuum cord and daggers, even when they told him they beat him because he was gay.

In order to demonstrate the necessity of adding language regarding sexual orientation and gender, proponents of the Kennedy-Smith Act also cite cases such as United States v. Bledsoe, 1in which a convicted murderer argued against federal jurisdiction over the hate crime because he had killed a homosexual African-American man because he was a homosexual, not because of his race.

The American Civil Liberties Union (ACLU), which has long opposed hate crime legislation because they believe that it would ultimately punish a belief, not an act, has come out in favor of the bill. 2The ACLU reasons that Kennedy-Smith is acceptable because it says that evidence of expression or association of the defendant may not be introduced as substantive evidence at trial unless the evidence specifically relates to that offense.

The ACLU was primarily concerned about the possibility that prosecutors might focus on "guilt by association" with hate groups and then assume that any crime against a person of the targeted protected group is automatically a hate crime.

The Kennedy-Smith bill would require that a defendant intentionally select the victim from a broader group, and would punish the act of discrimination, not bigotry. According to the ACLU's statement, this discrimination is an actual act whereas general bigotry is a thought.

Although freedom of association is guaranteed in the Constitution, the Kennedy-Smith Act raises concerns that the federal government could obtain a criminal conviction on the basis of evidence of speech, even in the absence of other evidence. In United States v. Dunnaway , 3 a federal court upheld the admissibility of a skinhead tattoo on the inside lip of a defendant, even though there was no evidence linking the racist group to the violent crime, because "[t]he crime in this case involved elements of racial hatred."

The Kennedy-Smith Act has met stiff opposition from neo-conservative activists in the religious right, including Charles Colson and Traditional Values Coalition chairman Lou Sheldon, among many others, who feel that this bill is about criminalizing Christian speech. In his May 3, 2007, syndicated newspaper column, Colson wrote: "This bill is not about hate. It's not even about crime.

It's about outlawing peaceful speech—speech that asserts that homosexual behavior is morally wrong." Colson then lists a number of currently protected activities that could be jeopardized, including preaching that homosexual behavior is a sin. Colson concludes with a warning, "[The Kennedy-Smith Act's] passage would strike at the very heart of our democracy." 4

An accurate reading of the Kennedy-Smith Act, however, would demonstrate that religious speech itself will not be censored or criminalized. The bill also promises that evidence of expression or association of the defendant may not be introduced as substantive evidence at trial unless it specifically relates to the particular offense.

This provision is only marginally protective, however, as a mildly-creative prosecutor could easily find ways to admit evidence as to bias and relate it somehow to the actual crime. This would be particularly useful in politically charged, high-profile cases. Any crime involving perpetrators and victims of different race, ethnicity, gender, or sexual orientation could conceivably become a federal case, even though the states would normally handle it.

Although the proposed federal legislation purportedly protects the freedom of speech that does not lead to a crime, as more and more cases arise and society changes, the United States could follow the example of Canada and other nations in which hate speech is broadly defined and can be prosecuted whether or not it is accompanied by a physical act.

As Justice Benjamin Cardozo correctly observed in Palko v. Connecticut,5 "[Freedom of thought] is the matrix, the indispensable condition, of nearly every other form of freedom."

There is no question that violent criminals, acting against anybody, should be prosecuted to the full extent of the law. We must strive for a safe and secure society. However, in the midst of the fight for security, the freedom to think must be vigorously protected.

Michael D. Peabody is a practicing attorney and the executive director of the North American Religious Liberty Association-West. He writes from Sacramento, California.

1 728 F.2d 1094 (8th Cir. 1984), cert. denied, 469 U.S. 838 (1994).
2 Caroline Fredrickson and Christopher Anders, "Letter to Senate Urging Affirmative Vote for Kennedy-Smith Hate Crimes Prevention Amendment" (July 13, 2007). Available online at
3 88 F.3d 617 (8th Cir. 1996).
4 Charles Colson, "The Thought Police: What the Hate Crimes Law Would Do," The Christian Post (May 3, 2007), available online at
5 302 U.S. 319 (1937).
6 The panel's decision is available online at

Article Author: Michael D. Peabody

Michael D. Peabody is an attorney in Los Angeles, California. He has practiced in the fields of workers compensation and employment law, including workplace discrimination and wrongful termination. He is a frequent contributor to Liberty magazine and editsReligiousLiberty.TV, an independent website dedicated to celebrating liberty of conscience. Mr. Peabody is a favorite guest on Liberty’s weekly radio show, “Lifequest Liberty.”