Sen. Kyl Attacks ‘Thought Crimes’ Bill as Threat to Speech     6/12/2002

The following remarks are excerpted from a speech made June 10 by Sen. Jon Kyl (R-Arizona) on the floor of the United States Senate concerning the Local Law Enforcement Act of 2001, popularly known as the ‘hate crimes’ bill. (Source: Congressional Record)

Mr. KYL. Mr. President, I would like to speak to this legislation. … It is a far-reaching proposal.

One reason the Senate should not rush to consideration of this bill is because of the very controversial change that it makes to criminalize not a defendant’s actions alone, but the defendant’s thought process. Think about this for a minute. This legislation focuses not on the defendant’s conduct, or even on his intent—on whether he acted purposefully or with knowledge of risk. Rather, this bill criminalizes the defendant’s subjective motive. We are moving perilously close, down the path of creating a penalty for thought crimes.

This is not as distant as you might think, considering, for example, the FBI data that is used by advocates of hate crimes laws to justify this bill. In 1999, they report there was a total of 9,430 hate crimes in the United States. Of these, only 19 were murders. By far, the largest category of actual hate crimes against persons, including property crimes and crimes against society, was the crime of intimidation. Yet this crime is so vague and so inchoate that the FBI does not even bother to calculate incidents of intimidation in its overall crime reports.

What exactly does intimidation mean? Does it simply mean something that is perceived as offensive by the hearer? Some groups, in fact, increasingly invoke terms such as “hostile speech” or “climate of violence” to describe speech in favor of traditional morality on social and sexual issues. Would a traditional viewpoint on homosexuality or transsexualism be hostile speech and thus a hate crime? It very likely could be under the definitions here.

One organization, the largest organization of women in the country, the Concerned Women for America, has cited an example of a pastor in New York whose billboard advertisement with a Bible verse on it was taken down by city officials who cited hate crimes principles as the rationale. The CWA also cites a recent incident in San Francisco. The board of supervisors officially approved a resolution urging local media not to run an advertisement by a group. Again, even those who do not agree with the message of traditional values should at least recognize these groups’ right to be heard and to exercise their first amendment right of speech. With this type of legislation, we risk criminalizing this speech.

In addition, it is wrong to treat some victims of violent crimes as more special than others. All victims of violent crime should be equal in the eye of the law. When such a crime occurs, the police should not first have to ask, for example, what the victim’s race, religion, or sexual preference is. Nor do the 19 murders classified as hate crimes in the year 2000 nor the 17 in 1999 provide much justification for the legislation when more than 15,000 other murders occurred each year — all crimes under State law. It is not as if we have to add this crime in order to assure there is punishment for people who commit violence.

Congress should be concerned about all of these victims, not about just a subset constituting one-tenth of 1 percent of the total. Yet that is what we spend our time on in this body.

I note that one of the bill’s provisions attempts to justify or provide a constitutional rationale for the bill. I note that section 2 states that Congress has found “the incidence of violence motivated by the actual or perceived race, color, religion, national origin, gender, sexual orientation, or disability of the victim poses a serious national problem” and that the “prominent characteristic of a violent crime motivated by bias is that it devastates not just the actual victim and family and friends of the victim, but frequently savages the community sharing the traits that caused the victim to be selected.”

I would like to focus on that in two respects.

First of all, it says this is a national problem. But I note that not all national problems are Federal problems. People are murdered every day in this country. That is a national problem. But States provide the laws under which people are prosecuted, and it is ordinarily by a local or county prosecutor. In other words, not every national problem is a Federal problem.

As I will note later, no less than the Chief Justice of the United States has warned Congress against federalizing every crime and finding a Federal solution to every national problem.

But even more important is the suggestion that only certain kinds of crime victims ought to be of concern to us. It said here that this kind of crime devastates not just the actual victim but frequently savages — and I am not exactly sure what the word “savages” means — the community sharing the traits that caused the victim to be selected. I presume that is the class of victims — people such as the victim.

As the Presiding Officer is well aware, Senator Feinstein [D-California] and I have had a constitutional amendment before this body for several years to grant rights to victims of crime. We have argued all of these years that victims of violent crime feel themselves frequently savaged by a system which gives a lot of rights to the defendant but, at best, ignores their rights, and sometimes actually results in them being victimized a second time by the judicial system by not getting notice of key hearings and procedures in which they would have an interest in attending, or by not even being able to sit in the courtroom sometimes. This clearly is activity that savages the community that has been victimized.

Anybody who has been a victim of domestic violence can empathize with the other victims of domestic violence. I have gone to many meetings at a lot of centers at which women who have been abused are sitting in a circle sharing their experiences in order that they be able to cope with and eventually rise above the problem and to understand that they themselves are not the cause of the crime that has been perpetrated against them. They are savaged, all right. They are a group of people to whom we ought to be paying attention. Yet we can’t get the support in this body to grant them the rights that are at least somewhat equal to the rights of the accused perpetrators of the crimes upon them. The numerous constitutional amendments which have granted defendants rights should at least be equal in the constitutional rights of these victims of crimes.

I am going to state this in a rather blunt way. It seems to me to be inconsistent, at best, for people to be very concerned about a couple of specific groups of people—transsexuals or homosexuals, for example—that they would believe that other members of their group would feel savaged when someone else in their group has a crime perpetrated upon them but we wouldn’t extend that same feeling and that same support and that same kind of action to a vast and much larger number of people who are victimized by crimes every day and for whom there are no victim’s rights. We don’t designate them hate crimes, and therefore these people have no such rights. I find it discriminatory.

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