28 July 2011

Is Hate Crime Legislation What We Really Need?

Ang Ladlad is again pushing Congress to enact hate crime legislation. Certified urgent panawagan sa Kongreso sa imbestigasyon ng LGBT hate crimes

I recall many years ago, after I left the province, testifying against hate crime legislation with a group of Marxists. I recall a right-wing senator, who also opposed the legislation, asking me many questions and being flummoxed by the reasoning since we obviously didn't come from the same point of view.

In essence, I opposed hate crime legislation because I felt that it would disproportionately impact the poor. When a poor person attacks a rich person, should the sentence be enhanced because the rich person was targeted because of his or her wealth? Would a judge ever enhance a sentence of a rich person who targeted a poor person because they were poor (assuming that a rich person actually was adjudicated guilty of committing a crime against a poor victim)?

Do hate crimes really just become another way for the government to manage the poor by adding other opportunities to extend sentences of imprisonment. I think that, all things being equal, hate crime legislation has disproportionately impacted the poor because the poor are disproportionately put in jail. (In the US, this translates in young Black men going to jail longer for attacking a white person than otherwise.)

I doubt that hate crime legislation is really the appropriate vehicle to address LGBT-related violence. It is clear in many of the cases of homicide and assault that gay men were targeted for occurred because they were gay. However, in a number of other cases, it appears they were targeted for money or for likely triggering some extreme internalized homophobia on the part of the assailant. In these circumstances, the victim's existence as gay is irrelevant because the motive was something other than attacking the victim because they were gay.

Even if motive-based, sentence enhancement "hate crime" legislation were ready to be adopted, I think there is a several decade evolution of police professionalization and community oversight that has occurred in most developed countries that is totally absent in here in the Philippines. We do not have police commissions or regular legislative inquiries into allegations of police misconduct, unless the police misconduct is part of some bigger conspiracy like rigging elections or corruption. I am not aware of systematic contesting of police overstepping through litigation.

The movement to demand that the laws be enforced equally against assailants of LGBT victims as they are of straight victims or of lower-class victims as they are of upper-class victims must precede the push for hate crime legislation. Each barangay or municipality should have a PNP oversight board composed of a few people (3 or 5) that are not and cannot hold elective office or any position of public profit (i.e. government workers, teachers, etc.,) that have rotating, non-renewable terms of 4-5 years and are appointed by the mayor in office with the agreement of the council or a majority of barangay captains. They should have the power to oversee investigations into police misconduct, malfeasance, misfeasance and/or nonfeasance and have power to remedy misconduct or nonfeasance, etc.,. In the US, many of these bodies actually appoint the OIC of the police for specific geographical areas!

Hate crime legislation enacted without this intermediate step is likely to be used by wealthy people who already have contacts with the PNP to do something and will not help aid better, more equitable enforcement of current laws. Murder was and continues to be illegal in the Philippines and the lack of hate crime legislation is not the primary reason why the assailants of LGBT victims have not been put in jail. It is a failure of the PNP to administer criminal justice in a fair and equitable way and, in this way, deprives the entire country of the rule of law.

These are the kinds of arguments that support LGBT people that can easily link to other groups who also suffer from the homophobic and misogynistic inclinations of the PNP collective spirit. The PNP is composed mostly of lower middle class and working class as the non-commissioned officers. Yet, the PNP is not the most receptive to crimes against the poor. Most of it can easily be corrected if there is some non-political, non-PNP oversight by the public. Why is it when a wealthy mayor is murdered a task force is formed and a dozen police are assigned to investigate, but when a gay man (who is not a mayor) is murdered there isn't enough personnel to conduct the most rudimentary investigation?

This requires reform of the administration of criminal justice in the Philippines. Real reform. When the laws are enforced as written, then we can see if motive-based sentence enhancements are appropriate or even necessary. What good is another law if it will not be enforced?

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