Fenster writes:

Steve Sailer asks if fake hate crimes are against the law.  Apparently not, in a lot of places.  But should criminal penalties apply?  And is a fake hate crime itself a hate crime? And should it be prosecuted in the same manner and under the same legal logic as an “authentic” hate crime?

Sailer discusses the Whole Foods birthday cake dust-up but here’s another: the Albany bus incident.  Three black students at the University at Albany got into a fight on a bus as it was entering the campus.  They claimed they were attacked and were subjected to racial slurs.  Police brought in.  Large student protests ensue.  University president rushes to judgment before the alleged white perps could be found:

“I am deeply concerned, saddened and angry about this incident. There is no place in the UAlbany community for violence, no place for racial intolerance and no place for gender violence. . . .our student affairs personnel and our Office of Diversity and Inclusion staff are working together to support our young women.”

A video of the incident subsequently demonstrated that the attack was fabricated and that the black students were the aggressors.  That is what the video seems to suggest at least, and what civil and university authorities concluded.  The three students were expelled and also charged with assault.  Two were charged with falsely reporting the incident.

This is the consensus view of what happened.  Sites like Jezebel are keeping the door open to alternative explanations:

Still, there’s debate over whether the video of the incident released tells the full story about what could’ve incited the women accused of assault.

But the issue appears for the most part over and done.

Of course it is not over as political fodder, and the right has joyfully used this as another demonstration of the use and abuse of hate crime designations.  I am not going to jump in on that aspect here.  But it raises the issue of whether fake hate crimes should themselves be deemed hate crimes.

If we are offended by the particulars of this case we might rush to say yes.  But let’s first ask what a hate crime is, or should be.

I was for quite a while against hate crimes for the simple reason that motivation is hard to determine and in a sense irrelevant to actual harm done.  Shouldn’t people who murder face similar penalties without having to peer into the perpetrator’s brain to discover a motivating factor?  Doesn’t that serve to–if you will–privilege one set of victims and their friends and families over others?

But we distinguish between different kinds of crimes all the time.  Manslaughter is different from second degree murder which is different from first degree murder and so on.  The distinctions here can be hard to prove but distinctions are nonetheless made.  A dead body either way, but both the behavior and attitude of the perpetrator can make a difference ( was it willful? premeditated? committed with wanton indifference?).

In making these distinctions we are making a cultural values statement: we consider a depraved heart murder a more serious thing than other murders.  We do this because it both reflects our values and because we hope that a higher level of punishment will deter especially heinous crimes.

The law is not just concerned with righting individual wrongs.  Crime and punishment are not truly truly blind in that sense.  The treatment of criminal matters is unavoidably bound up with issues of social control and social values.  Punishment is not just a matter of socializing private vengeance, with an eye only on rectifying the private harm.  Laws as written and laws as enforced aim to do more than punish the guilty in a narrow sense.  Some on the right are uncomfortable with socializing private things but then even the “broken windows” approach popular among conservatives is all about foregrounding social effects and backgrounding the effect of the actual acts on the victims.

In this light, it is perfectly fair to argue that a murder intended to instill fear into an entire community–a vicious lynching, say–is a more serious matter than a love affair gone wrong.  Looked at this way it is not the motivation per se that is being punished in a hate crime.  It is the broad reach of the act beyond the private effect on the victim.  Moreover, if there is a social consensus that instilling collective fear is something in its own right to be punished then yes I think hate crime laws, properly written and fairly enforced using this standard, are quite sensible.  The State need not read the offender’s mind; it has only to reasonably conclude that the harm had large social effects in addition to smaller private ones.

Sometimes fake hate crimes, like real hate crimes, start with an actual offense.  If a Muslim wishing to build sympathy for Islam calls in fake bomb threats to a mosque the harm is as real and as substantial as if it had been called in by an anti-Islamic activist. Terror.  Evacuation.  Police presence.  Disruption of activities.  But what of Muslim who falsely claims he was subject to harassment and violence?  No actual event occurred.  In such a case the only offense is social, there being no actual private act of harm at the bottom of things.

So some fake hate crimes only exist as social harms, and have no aspect of individual harm with which the social may intertwine.  What of it?  Isn’t the social harm of sufficient consequence to bring the law into play?