A Gay-On-Gay Hate Crime?
It’s entirely plausible:
A man accused of murder as a hate crime in the death of a gay man presented evidence of his own homosexuality in State Supreme Court yesterday. Prosecutors have said the defendant, Anthony Fortunato, 21, used his computer to lure the victim, Michael J. Sandy, 29, to a beach in Sheepshead Bay.Mr. Sandy was chased into traffic, prosecutors said, and died of his injuries. During the cross-examination of a computer crimes detective, Mr. Fortunato’s lawyer put into evidence gay pornographic images recovered from his client’s e-mail account. The lawyer, Gerald J. Di Chiara, has said he hopes to show that because Mr. Fortunato is homosexual, he would be unlikely to single out a gay man to commit a crime against.
A few hasty stitches:
–Gay porn on a computer is not proof of gayness. Indicative, perhaps — but it could just as easily be indicative of a premeditated effort to avoid a hate crimes charge (i.e., he’s merely posing as gay to avoid the anti-gay presumption). Is the defendant that clever, or that stupid? Who knows?
–In any event, there is no shortage of gays who hate other gays.
–Most importantly, one must remember that the term “hate crime” is sloppy shorthand. “Hate” is not an element of most “hate crime” laws, and definitely not New York’s:
A person commits a hate crime when he or she commits a specified offense and either:(a) intentionally selects the person against whom the offense is committed or intended to be committed in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct, or
(b) intentionally commits the act or acts constituting the offense in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct.
So, for instance, a mugger who intentionally selects as his prey an elderly person need not “hate” the elderly to be guilty of violating New York’s “hate crime” law. He need only believe, correctly or incorrectly, that the elderly are, e.g., weaker or more frail than others and therefore easier to prey upon. By this standard, an elderly mugger who targets an elderly victim has still violated the hate crime law, even in the absence of any “hatred” of the elderly.
Similarly, a robber who intentionally selects as his prey a Hasidic man near 47th Street in Manhattan need not be anti-Semitic to be guilty of violating New York’s “hate crime” law. He need only believe, correctly or incorrectly, that Hasidic men are more likely to be carrying diamonds and therefore represent, probabilistically, a more lucrative target. By this standard, a Jewish robber who targets a Jewish victim has still violated New York’s hate crime law, even in the absence of any “hatred” of Jews.
So too with gay-on-gay violence. Despite the unfortunately inaccurate term — “hate crime” — such laws are better labeled as “victim targeting” crimes. To target a gay victim in any way because of his gayness is the punishable aggravator, not “hatred” of gays per se. Just as to target women because of their gender, or the elderly because of their age, or the disabled because of their condition, all trigger the “hate crime” offense escalation, even in the absence of any “hate,” commonly defined.
This caveat is an important element underpinning why “hate crime” laws are not nearly as pernicious as some libertarians like to insist. The “punishing thought” meme is indeed chilling, but wholly misplaced. As I have explained previously, we punish the same crime differently under different circumstances all the time. To use victim targeting — which is not synonymous with “hate” or “thought” — as a differentiator is neither subjective, offensive nor totalitarian. It is, generally if not always, an objective and reasonable calculus in criminal law.
A “gay-on-gay hate crime” is not a reductio ad absurdum. It is merely a demonstration of the need for better syntax.
—
Meanwhile, tomorrow the Senate takes up the Matthew Shepard Act (S.1105), which adds sexual identity to the pre-existing federal hate crime law. Even if you find hate crime laws problematic, you should still insist that such laws that are already on the books be applied intelligently and consistently — which demands that sexual orientation be included. This is the same argument as with the radical libertarian position on marriage: do not use your general distaste for “government being in the marriage business” as an excuse to oppose fair and equal access to marriage for gays.
Similar Posts:
- Dubious Hate Crime Charge in Louisiana
- On Gambling Courts and Hate Crimes Laws
- Sweden May Ban Anti-Gay Hate Speech
- Is Self-Defense a “Special Right” for Gays?
- Gay Marriage: Which is the Path of Least Resistance?
Filed under: Uncategorized
I may find hate laws and government in the marriage business problemmatic but I agree that these laws apply equally to all, including gays. I think it would be perverse to take the opposite position, as it is highly unlikely that we will reverse course from the decades of legal positivism anytime soon.
It is probably why I came around on Footnote Four. Besides, if we overturn Footnote Four and leave Glucksberg in place, then we really have problems (read: Bowers).
This situation underscores the absurdity (and dishonesty) of the public rationale from hate crimes advocates.
The rationale is that gay people are victims — and collectively victimized — by anti-gay violence committed by non-gays designed specifically to create fear in the gay population.
Here, we have a gay man bashed by another gay man as a motive for robbery. No "targeting of gays to victimize gay people and strike fear into their hearts."
So the law, as implemented, is a lie versus the "need" or "motivation."
Not a surprise to this Libertarian — as we're well-familiar with the "law of unintended consequences — but it bears repeating when the old canards about "hate crimes" are repeated on a federal level, or in states that don't yet have similar special-rights laws.
Hatred for any reason should not exist at all.
I think it is safe to say that the presence of pornography on one's email account is not dispositive.
Brian, the rationale is in part simply to deter the activity because we find it more heinous than other forms of assault or murder. We wish to discourage targeting. Similarly, one case of possession of contraband may not implicate the purported rationale for these laws (preventing drug addiction, the revictimization of children, etc.) but it does affect the "market" for the contraband. Providing what amounts to sentencing enhancements for hate crimes similarly operates to discourage the targeting of individuals on the basis of the protected category. I also add that the law protects a category, not a single class. Thus, hate crime laws protect all people from targeting on the basis of race, sex, sexual orientation, etc.
the rationale is in part simply to deter the activity because we find it more heinous than other forms of assault or murder. We wish to discourage targeting.
Who is "we?"
Presuming that I'm part of the "we" you're invoking, I'd kindly ask you to speak for myself.
I find the idea of someone being beaten to death for wearing the wrong sport's team's jacket, or being gay, or being black, or driving a Dodge, to all be equally despicable.
I find the idea that someone who murders me could get more time in prison than someone who murders my mother or sister, simply because I am gay.
Of course, those of us who find the idea that heterosexual people or other "non-protected" classes are worth less prison time if they're murdered than elevated special classes aren't included in the "we." Although many of US are members of the classes that are supposedly being "protected."