Berkeley Law

This essay asks how communities should respond to crimes expressing hate, not merely toward an individual victim, but also toward the larger group of which that victim is part. In particular it explores the proposal of Dan Kahan, that communities have been, and should be, mobilizing the emotion of disgust expressed in hate crimes themselves. It argues that Kahan's approach to hate crimes is deeply flawed, for several reasons. First, "fighting disgust fire with disgust fire" is less prevalent as a response by targeted groups than Kahan suggests: an examination of the strategies of recently-targeted Arab and Muslim Americans, and gays and lesbians who have been longstanding targets of group-based violence, reveals that neither group has deployed this approach to any significant degree. The varied strategies used by these groups have, in fact, focused less on the public perception of the perpetrator than on the public stigma associated with the targeted population. This focus is appropriate given the essay's second major argument: that recent research has shown group-based violence to be not a simple expression of hierarchical judgment, but an opportunistic crime, in which perpetrators negotiate a range of status-related anxieties through agression against socially stigmatized targets. Public expressions of disgust may, in fact, incite potential perpetrators, without addressing the stigmatization that constructs some groups as available targets. Third, a regime of publicly-articulated disgust is also likely to produce forms of subjectivity and civic engagement that will corrode the social fabric of the communities in which it is deployed. Finally, the essay concludes that a better approach would use enhanced sanctions to draw the lines regarding acceptable conduct, and would direct community-based efforts toward mitigating or eliminating the stigma that creates available targets.