Laws of the Last Resort

By MARGARET CARLSON

In Richard Dooling's brilliant new novel, Brain Storm, Judge Whittaker Stang, a Howard Cosell in robes, scolds an attorney who wants to try the killer of a "disabled person of color" for a hate crime rather than simple murder. The ambitious lawyer thinks that will make him look cuddly and electable in a run for the Senate. Throbbing with scorn, Stang tears into him: "Are we going to impanel a jury to inquire after just what kind of hate this degenerate had running around inside his head? And after we identify all the warped, deviant varietals of hatred...ask the jury which kind of hate made him pull the trigger? Not in my courtroom. Not if I can help it."

And not in my column. Well, maybe not. It is easy enough to mock the idea of hate crimes ("So where are the love crimes?"). Hate-crime legislation, critics say, is codified redundancy, unnecessary complication for real-world courtrooms already saddled with the heavy demands of proof. As Judge Stang says, you don't want to send hate off to the forensic lab to prove what kind it is. Unlike intent, he says, motive isn't a separate element of a crime. It simply provides narrative to sway a jury or give plot to a novel.

But sometimes we need to find motive to calm us down. Then hate-crime laws, for all their inconsistencies, seem to be the only resort. As night fell at the vigil for Matthew Shepard outside the Capitol last Wednesday, the stony resistance of many Republicans to federal hate-crime legislation melted amid rosy predictions it would be revived, and passed, when Congress resumes in January.

But this could be no more than a feel-good gesture at the end of a feel-bad session. The G.O.P. has thrown its right-wing base enough Grade A red meat to satisfy the most ravenous appetite. The right wing's "war against the homosexual agenda" is actually against homosexuals themselves. In fighting to limit AIDS funding and battling gay adoption and marriage, some Republicans have characterized gays as less deserving of basic rights and as a sinful, diseased threat to the American way of life. There was, of course, Senator Trent Lott's comparison of homosexuality to kleptomania. Now a coalition of Christian-right groups is running full-page ads in newspapers with the message that homosexuals are so lost it will take divine intervention for them to become normal. With plans to put the ads on TV just before the election, an entire wing of the party looks poised to fan hatred of gays just to get out the vote.

Words are one thing. Sticks and stones are another. There were nearly 8,759 hate crimes reported in 1996; 1,016 of those were sex-bias crimes. Although no one thinks that Wyoming, which has quashed hate-crime bills three times, won't fully prosecute Shepard's killers, gay lobbyists have no doubt that there are cases in which the police look the other way, prosecutors don't bring charges and juries don't convict. Take the case of Jonathan Schmitz, who killed a gay man who said during the taping of the Jenny Jones Show that he had a crush on Schmitz. Schmitz was convicted of second-degree murder. Was being the object of gay affection such understandable humiliation that the charges were ameliorated?

There needs to be a defense against the defense that "homophobia made me do it." Forty states have hate-crime laws, and studies show that added measures can make a difference. Some critics fear that speech will be curtailed in the zeal to get at all those bias incidents classified as "intimidation." But the Supreme Court has found that laws protecting gays don't violate free speech. It refused to hear the case of a preacher in New Jersey who said the state's antidiscrimination law protecting gays violated his First Amendment rights. It's a misplaced fear to think that authorities who haven't wanted to prosecute assaults will be going after epithets. Otherwise, Senator Lott and some of his colleagues may well be at risk.