Opportunistic Hate Crimes Targeting Symbolic Property: When Free Speech Is Not Free

Rebecca Davis, J.D. Candidate, The University of Iowa College of Law, 2007; M.F.A., The University of Iowa Writers' Workshop, 1996; B.A., Vassar College, 1992. I wish to thank my family and especially my husband, Dan, for their unlimited belief in me. Thank you also to members of The Journal of Gender Race & Justice for their help with this piece. All remaining errors and omissions are mine.

I. Introduction

Imagine a situation in which a burglar enters a home and robs it for the purpose of obtaining material possessions. He or she has selected the home simply because it was an easy target; he or she knows nothing about the inhabitants of the home, including their race, gender, or religious preference. During the commission of the robbery, however, the burglar spots a religious symbol-a menorah, for example-and sees an opportunity to express his or her hatred for Jews, the presumed owners of the home he or she is robbing. The burglar seizes the menorah and smashes it on the ground with such force that the metal of the menorah is twisted and the wooden floor is significantly gouged. After destroying the menorah, he or she completes the robbery and departs the house with his or her caché. When the investigating police officer comes to the house, the home owners point out the damaged menorah as they detail missing items, but the officer declines to make a note. Because the burglar entered the home with the intent to rob and the primary purpose of the act was to commit a robbery, the anti-Semitic incident is "lost" in the "rational" act of the robbery. As a result, the bias element disappears and with it the hate crime. 1

The vandalism of the menorah is a hate crime of opportunity, a "crime within a crime." For purposes of this Note, the discussion of opportunistic hate crimes will be limited to those illegal acts that are accompanied by destruction or manipulation of a symbol holding special meaning to the victim´s group. As demonstrated in the example, purposeful destruction of a menorah at a robbery scene would constitute a hate crime of opportunity. Burning a cross on someone´s lawn after robbing his or her home, inflicting bodily injury to the inhabitants, or damaging their property based on bias would also constitute a hate crime of opportunity. In these scenarios, the perpetrator has not selected the victim on the basis of bias.2 Consequently, should a hate crime be reported at all? If so, should it be reported as a robbery or vandalism? Should the punishment escalate from the punishment of the primary crime or the secondary crime? These questions become particularly compelling when one considers other potential scenarios: what if the primary crime were a rape or homicide, and the perpetrator found the religious symbol and chose to express his or her bias in conjunction with the rape or murder?

One perspective would be that the secondary crime was simply an expression of free speech and that to condemn it would be an unconstitutional restriction on First Amendment rights.3 An alternative perspective, which this Note discusses, is that an expression of hate manifested through a secondary crime manipulating symbolic property4should be reported and prosecuted as part of the primary crime and that the primary crime should be elevated to a bias crime.5 This Note will not attempt to explore the boundaries of precisely which symbols constitute symbolic property that can be the target of a hate crime. Generally, property that plays a role in shaping and affirming group ...

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