Sunday, 13 April 2008

The burden of prove on the charge of "racism" is far more demanding than on a criminal charge in a criminal court.

All too often, the word "racism" sends discussion about color-aroused antagonism off on a wild goose chase. Here's how it works:

1). A white human being in the United States does something to a Black human being, or says something about a Black human being or all Black human beings, which many whites and Blacks find to be repulsive and intolerable.

2). Some whites and Blacks insist that the intolerable and repulsive act was "racist" while some whites and Blacks insist that it was not, even if all agree that the acts were intolerable and repulsive. The assumption is that if the intolerable acts are found to be "racist" than they are impermissible, but if the intolerable acts are NOT "racist" then they are permissible and may be repeated at will.

3). Since there is no generally agreed upon test to determine what is "racist" and what is not (US courts don't use the term at all as the basis for their decisions and the US Congress has never defined "racism"), we therefore can reach no consensus about how to apply the "racism" test or even what the "racism" test is.

At the same time, there IS general consensus that antagonism that is aroused by perceiving the skin color of another is always suspect. And everything one does after that perception (ideation, emotion and behavior) should be subject to exacting scrutiny. For example, under federal law, if one person calls a stranger the "N" word and then shoots the person, that can be prosecuted as a hate crime. The simple fact of using an antagonistic color-associated word pretty much resolves the question of whether it was a hate crime or not.

Why? Because, after the use of the "N" word, it is obvious that the illegal behavior was prompted by the perception of the skin color of the victim. And then that perception led to ideation and emotion that might well have been hate (but could have also been envy, jealousy, fear, shame, guilt). In any case, without ever making reference to the word "racism", courts are able to determine whether skin color aroused the perpetrator to attack the victim.

When someone makes a color-associated antagonistic remark, we immediately begin to debate whether that person is "a racist". Thankfully, a defendant need not be convicted of being "a racist" to be convicted or receive an enhanced penalty under a hate crimes statute, because the question is not "what the person is" but rather, as in all criminal cases, "what the person has done and what his motive was."

Criminal law understands that motives based on ephemeral feelings and desires, and feelings that motivate unlawful plans and actions, are more important, more useful and more feasible than determining whether the defendant "is a bad person". Unfortunately, in our discussion of color arousal, we seemed compelled to go beyond the question of whether illicit ideation and emotion have motivated an illicit act; we want to determine, in addition, whether the illicit act is evidence of a "bad personality," ie. "racist."

If that were the standard in criminal courts to achieve a criminal conviction, then simple cases would last for months while prosecutors tried to prove that, in addition to having stolen something, the defendant also met the standard for "inherent thief". If he could not be proved an inherent thief, then he would go free, because what would be illicit would be the alleged nature of the personhood of the defendant, rather than a specific act of which he was accused.

Trials would last for months, every trial would require expert psychiatric and even sociological testimony; fewer cases could be tried and fewer convictions were obtained. Defendants would emerge from courts smiling, saying "They were able to prove that I stole a car, but the case foundered when they were unable to prove that I was, by nature, inherently a car thief."

Would this perpetrator be convicted if he had to be convicted of "racism"? What is the definition of "racism"? Does calling someone the "N" word once mean the assailant was really "racist"? Maybe he was just having a bad day? Sure the defendant committed an otherwise illegal act, but was it a "racist" act.

Unable to agree on whether using the "N" word once necessarily makes a person a lifelong "racist", therefor a jury might get hung up on debating "racism" and therefore not be able to decide the case at all. Had the test of hateful language been applied instead, the simple use of the "N" word would have been sufficient for a conviction under hate statutes.

In contrast, we constantly argue over whether antagonistic color-associated words and arguments are "racist", and rarely are these arguments resolved to everyone's satisfaction.

For the rest of us, however, we have to apply and resolve the "racism" test before we can decide whether that behavior rises to the level that we are allowed to be angry about it and mobilize others against.

When those who oppose hate crime laws argue against them, they never argue that calling someone the "N" word is not evidence of color-associated antagonism. That argument would be too absurd for anyone to take it seriously. Rather, they concede that it is OBVIOUSLY evidence of hate, but they argue that feelings expressed, they argue, ought not increase the legal penalty for behavior that is already illegal.

If Don Imus had called the Rutgers basketball players "nappy-headed hos" and then proceeded to shoot them, there would be no doubt in a court of law that he had committed a hate crime. Certainly, that would be the evidence needed to charge him with it. But, were his comments "racist"? Some people are still arguing that they were not sufficient "racist" to justify his dismissal.

One would think that white people would be all in favor of retiring the word "racist", but many of them are not. In fact, the interminable debate over what rises to the level of "racism" always gives whites wiggle room to engage in behavior that everyone agrees is antagonistic and aroused by or associated with skin color. "Sure, it's antagonistic and aroused by or associated with the perception of skin color, but is it "racist"?"

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