The emotional dimensions of lesbian and gay demands for hate crime reform.

• Author: Moran, Leslie J.

"Hate crime" has become an important focus in contemporary lesbian and gay politics. This article explores an aspect of this resort to law that has not been addressed in the sexual politics of "hate crime"--the emotional investments that are being made in and through this demand for law. Recognition of the emotions underscoring a demand for law challenges the foundational assumption about the nature of law--at it is quintessentially associated with reason and rationality.

A key theme within the hate crime canon is the demand for enhanced penalties attached to existing offences when those offences are motivated by hatred proscribed by law. The author argues that the gay and lesbian demand for law reform feeds a law and order politics of retribution and revenge that may be implicated in the promotion, institutionalization, and legitimation of hate. The author does not intend, however, to dismiss the turn to "hate" or "bias" crimes on the basis that they will be ineffective or destructive of social cohesion. Instead, he hopes to draw attention to the complex and contradictory nature of the relationship between sexuality, state, and violence in order to contribute to a debate that will query the alliance that lesbians and gay men are making with law and order.

Le > est devenu un enjeu d'importance pour la politique gaie et lesbienne contemporaine. Cet article explore un aspect de ce recours au droit non aborde par la > du >, a savoir les investissements emotifs faits dans et a travers cette revendication juridique. La reconnaissance des emotions qui soustendent une revendication juridique defie un postulat fondamental quant a la nature du droit, a savoir qu'il est foncierement lie a la raison et a la rationalite.

Un theme central du principe du crime haineux est la revendication de peines plus severes pour des infractions deja prevues par la loi lorsque celles-ci sont motivees par une haine interdite. L'auteur soutient que cette revendication des gais et lesbiennes nourrit une politique de > punitive et revancharde a laquelle pourrait etre attribuee la promotion, l'institutionnalisation et la legitimation de la haine. Cependant, l'auteur n'a pas l'intention de rejeter le recours a la > ou au > au motif qu'ils seraient inefficaces ou prejudiciables a la cohesion sociale. Il espere plutot attirer l'attention sur la nature complexe et contradictoire de la relation entre la sexualite, l'Etat et la violence pour contribuer a un debat questionnant l'alliance que sont en train de forger les gais et lesbiennes avec la loi et l'ordre.

Introduction I. Enhanced Punishment II. The Emotional Landscape of Contemporary Law and Order Politics III. Emotional Attachments to Good Violence IV. The Fate of Emotional Attachments in Law V. The Troubling Emotions of "Hate Crime" VI. Punitive Segregation and Lesbian and Gay Politics of Hate Crime: A Note of Caution Conclusion Introduction

"Hate crime" has become an important focus in contemporary lesbian and gay politics not only in the US, its place of origin, (1) but also in other common law jurisdictions (2) such as Canada, (3) Australia, (4) and the UK. (5) Commenting on government proposals to consider the extension of hate crime provisions in the UK to include homophobic violence, the editor of a London-based gay magazine observed, "Almost uniquely, the introduction of hate crimes has the support of all the major campaigning organisations." (6) The phrase "hate crime" articulates the weight and urgency of a lesbian and gay politics of violence and safety by reference to "crisis" and "epidemic". (7) Incidents of extreme violence, such as the brutal murder of Matthew Shepard in the US, Kenneth Zeller in Toronto, Canada, and George Duncan in South Australia, as well as the bombing of "The Admiral Duncan" (a gay pub in London's Soho), which resulted in several deaths, have been deployed as potent symbols of this "crisis". (8) Its "epidemic" qualities are commonly represented in victim surveys arising out of lesbian and gay community activism devoted to generating data that not only seeks to map the prevalence of that violence over a person's lifetime but also to represent its everyday quality. Jacobs and Potter remark that "[s]pokespersons for lesbians and gays have been among the most vocal proponents of the hate crime epidemic theory." (9) The collection of data about these largely unreported incidents of violence draws attention to the continued failure of the state, in particular the police as key state officials, and the criminal justice system more generally, to take homophobic violence seriously. (10) As such, this also highlights the failure of the state to carry out one of its core functions--providing for the safety and security of its citizens. (11) Common to this politics of violence and safety, Stanko and Curry argue, (12) is the recourse to a "crime paradigm". Others have drawn attention to another dominant feature of this politics, the central role of law. (13) Only through the adoption of new law, Jenness and Broad suggest, can hate "become a meaningful term and the victimization associated with the problem of hate crime [be] rendered apparent and clearly defined." (14) A key feature of this particular turn to law is not the creation of new offences but the introduction of new, enhanced punishments, creating "parallel offences" where "hate" is the motivating factor. (15) The objective of this paper is to explore one aspect of this resort to law that has not been addressed in the sexual politics of "hate crime", the emotional investments that are being made in and through this demand for law.

It is a project that addresses a fundamental issue: the place of emotions in law. Attempting to bring the emotional dimensions of law into the frame of analysis challenges a foundational assumption about the nature of law; that law is quintessentially a phenomenon and a social practice associated with reason and rationality. In this scheme, emotions, characterized as the "non-rational" or "irrational", necessarily have no place in law and the analysis of law. A growing body of work has begun to question this assumption, documenting and analyzing the nature and significance of human passions and emotions in law. (16) In some respects, the fundamental separation of law and emotions is more difficult to sustain in the context of hate crime law. To date, much of the work on the emotional dimensions of law has occurred in relation to criminal law and criminal justice. This focus is not surprising as Willem De Haan and Ian Loader explain:

Intuitively, one is bound to think of [the relationship between human emotions and crime, punishment, and social control] as a close one. States of emotional arousal--pleasure, anger, fear, sadness, disgust, remorse, resentment, shame, guilt and so forth--seem somehow deeply and intimately implicated in [crime]. (17) Furthermore, Laster and O'Malley suggest that in the recent past, it is in the context of criminal law and criminal justice that emotions have not only played an important role in law reform but, through that reform, have been embedded in law and in the mechanisms of its administration. (18) The appearance of "hate" in the name of the new legal category, "hate crime", appears to be an example of a law that gives a certain prominence to emotions. "Hate", the Oxford English Dictionary explains, is "an emotion of extreme dislike or aversion; detestation or abhorrence ..." (19) It would, however, be premature to conclude that the appearance of "hate" in this new legal category fundamentally challenges the continued significance of the foundational assumption about the separation of law and emotions.

In lesbian and gay activism around hate crime reform, in the first instance, "hate" is overwhelmingly represented as being antithetical to law. It is an important dimension of the problem; of the violence that is taken to be a sign of disorder, threatening not only the individual but also the immediate and wider community. I will argue that this is a partial picture of the emotional dimensions of hate crime law reform. Murphy and Hampton suggest that criminal law provides a vehicle whereby "certain feelings of anger, resentment and even hatred ... typically directed towards wrong doers, especially if we are the victims of those wrong doers" are institutionalized in the law. (20) Murphy and Hampton's reference to "hate" is of particular interest. Contrary to the belief that in "hate crime" emotions in general, and "hate" in particular, may be limited to their association with violence and social disorder, Murphy and Hampton's observations suggest that "hate" may be an emotion associated with law and with good order. This raises the possibility that lesbian and gay law reform, which seeks to outlaw hate, may be implicated in the promotion, institutionalization, and legitimation of hate (albeit a different hate). (21) My interest in this state of affairs echoes concerns raised by Wendy Brown, reflecting on the experience of feminist engagements with the state. She poses a question that is at the heart of my focus upon the emotional dimensions of law in general, and in relation to lesbian and gay engagements with hate crime reform initiatives in particular. She asks, "What kind of attachments to unfreedom can be discerned in contemporary political formations ostensibly concerned with emancipation?" (22) The question gives a critical analysis of the emotional investments being made in and through the sexual politics of hate crime reform a particular urgency.

In my attempt to explore the emotional investments being made in and through hate crime reform it is not my intention to undertake a detailed historical or contemporary survey of the development or deployment of the various dimensions of the hate crime canon (23) within a lesbian and gay context, either in a specific jurisdiction or across a wider range of locations. Existing general...