H. Alexander Robinson

The Criteria of Prosecuting Hate Crimes

Filed By H. Alexander Robinson | September 20, 2007 3:24 PM | comments

Filed in: The Movement
Tags: African-American, black, hate crimes legislation, LGBT, Megan Williams, Michael Sandy, West Virginia

Recent hate crimes have grabbed the headlines but more for their legal twists and turns than for their actual prosecution. We were first riveted by the West Virginia case where a black woman was tortured for over week by six white captors who called her racial epithets as they sexually, physically, and mentally abused her.

However, since the captive, Megan Williams knew her attackers and possibly had a social relationship with one of them prior to her attack; authorities have declined to apply hate crime statutes to the case just yet.

Meanwhile in New York City, attackers of a gay black man, Michael Sandy stand trial for his murder. Sandy was targeted and lured in October 2006 from the gay sex website, Adam4Adam.com and was later robbed then killed by a passing car as he attempted to flee from his attackers.

In an earlier ruling, Judge Jill Konviser of the State Supreme Court in Brooklyn ruled that although robbery was the intent and not anti-gay hate that the New York state bias crime statute could still be used to prosecute his attackers without a motivation of hate.

But this week one of Sandy’s attackers, Michael Fortunato confessed in court through his lawyer that he himself is gay and because of this revelation, there is an argument whether or not Fortunato should be tried for an anti-gay hate crime.

From Gay Panic to Hate Crimes with Exceptions

We’ve seemingly grown from using gay panic as a defense to splitting hairs over intent and now mutual identification. In the West Virginia case, prosecutors mistakenly feel that because Megan Williams was not randomly selected at a Wal-Mart parking lot based on her race but instead she knew and even dated one of her attackers, that her torture doesn’t measure up to being a racially motivated hate crime.

And in New York City, Michael Fortunato’s lawyers mistakenly argue that since he and the victim, Michael Sandy were both gay, that there could not possibly be hate motivated interaction between the two of them that is based upon their sexual orientation.

In both instances the line of thought is flawed and time, energy and resources are being wasted on the attempts to exonerate the defendants from their own guilty actions

Megan Williams who is slightly mentally challenged was targeted based upon her race along with other possible factors. The fact she knew her attackers should not make a difference. Statistically we know that most assaults are committed by individuals who know their victims. Hence there is no basis for the authorities to not pursue hate crimes prosecution.

In the New York City case of the death of Michael Sandy, we need only be reminded that statistically those who are usually vehemently opposed to the LGBT community in every arena, politically, religiously, and physically often have latent homosexual tendencies. These tendencies are internalized in a form of fear and hatred towards themselves and others who remind them of themselves.

Additional Reasons to Pass the Hate Crimes Bill

If the pending Hate crimes bill were already passed and signed into law, Megan Williams could potentially have been protected in two additional areas. There already exist legal protections based upon racial bias which she is protected under. But the new proposed hate crimes law would further provide protections to Williams because she is both a woman and a person living with a disability. Her attackers could potentially be tried on up to three counts under the expanded hate crimes law.

Further, authorities should not shy away from using hate crime protections even if it does not fit neatly into a legal box. Electing not to prosecute under the hate crimes law creates a very dangerous precedence of using personal gut instinct versus the overall theme of intimidation which clearly runs throughout all anti-bias cases.

Let’s Not Be Fooled

The LGBT community should not be led astray into thinking that we must now begin to identify and categorize hate crimes based upon the criteria of previous relationship or of like sexual orientation.
Hate is Hate no matter how much one attempts to dress up its approach. We must remember this as we continue to advance the legal protections of all lesbian, gay, bisexual, and transgender men, women, and youth.


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I have to admit, I'm a little worried about something you said, Alexander. Let's clear it up so I know if I got your intended meaning...

If the pending Hate crimes bill were already passed and signed into law, Megan Williams could potentially have been protected in two additional areas. There already exist legal protections based upon racial bias which she is protected under. But the new proposed hate crimes law would further provide protections to Williams because she is both a woman and a person living with a disability. Her attackers could potentially be tried on up to three counts under the expanded hate crimes law.

Are you saying that her attackers should be charged with kidnapping, battery, assault, rape, and all the other regular charges that will be pressed against them PLUS a hate crime for each of her protected categories - race, gender and disability?

Because, if so, my question is "Why?" Isn't the years they'll spend in jail enough? Why do we need to add three extra charges of "hate crime" to the sentencing? Isn't adding hate crime cubed a bit of an (pardon the pun) overkill? Aren't we being overly punitive now?

I'm not trying to excuse what the accused have done. Not at all. I'm just trying to make sure we don't give the police state an extra ability to lock folks away for extended periods of time and forget about them. As you know, our prison system is already full and most of the "offenders" have gotten all these extended sentences as the public has wanted politicians to be "tough on crime."

The issue of sentencing and prosecution of an offense as a hate crime are related but not one in the same. Federal hate crime laws provide state or local authorities with often needed additional resources to investigate and prosecute the crime.

The Matthew Shepard Act would give the Justice Department the power to investigate and prosecute bias-motivated violence by providing the department with jurisdiction over crimes of violence where the perpetrator has selected the victim because of the person’s actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity or disability.

With the ability to aid state and local jurisdictions either by lending assistance or, where local authorities are unwilling or unable, by taking the lead in investigations and prosecutions of violent crime.

I agree longer sentences are not always the appropriate answer. However, the additional tool of federal hate crime protections can be important.

When making sentencing decisions a finding that the perpetrator of the crime intentionally selected the victim because of who the victim is allows the court to take this into consideration in determining the appropriate sentence. On a broader note it allows society to express our disapproval for crimes which are intended to intimidate not only the victim but a whole community or class of individuals.

The importance of the federal hate crimes protections is that it provides a backstop to state and local law enforcement by allowing a federal prosecution if – and only if – it is necessary to achieve an effective, just result.

Alexander, I have to agree with Bil. Hate crimes legislation is a thoroughly bad idea; it punishes thoughts, not deeds, and allows the state to pursue the surveillance of our minds. Which only compounds the fact that our daily lives are already constantly under surveillance. Even the examples you've presented demonstrate how slippery this slope can be. Most crimes, especially those involving violence, are by definition "hate crimes" since they usually involve some strong emotions. How do we begin to parse and figure out which of those emotions are more unworthy than others, more in need of punishment? There are already punishments in place for the crimes that occured here.

By extending sentences, we're asking for an extension of the prison industrial complex which already incarcerates the poor and the disenfranchised at inordinately high levels. In addition, hate crimes legislation can actually lead to calls for the death penalty. See my story in the Windy City Times for more: http://www.wctimes.com/gay/lesbian/news/ARTICLE.php?AID=7209

Is this what we'd like to see more of?

I don't know with whom I'm agreeing or disagreeing here, so I'll just start, :).

I think it's a vast oversimplification to say that hate crimes legislation prosecutes thoughts, not actions, or that they allow for the surveillance of people's minds, or that every crime is motivated by hate. On the first two, it's not just thoughts that prosecutors are looking for when they prosecute these cases, but actual actions that indicate that the crime was motivate by racism, etc. And it doesn't increase mind surveillance in any real way - thoughts still cannot be prosecuted until they turn into actions, and not just speech acts. I also don't understand why we're parsing "thoughts" prosecution and "action" prosecution - isn't every crime motivated by thoughts? In order to commit a murder, etc, don't people have to think about it first? then isn't such prosecution punishing those thoughts as well as the action of committing a crime? I don't see why different thoughts that lead to different actions (in this case, an attack on a class of people instead of just an individual), shouldn't be treated differently, unless what we're really asking for is to scrap the criminal justice system altogether.

And about all crimes being motivated by hate - I would disagree. Sometimes people steal because they want something, or, in the case of my brother, because he wanted the thrill of stealing. Sometimes it's because they have serious psychological issues, sometimes it's cold and calculated, and sometimes it's caused by animus towards one person, and not an entire class.

I wonder, if such legislation, as people say, and i'm not responding to anyone in particular here, furthers the oppression of marginalized people and hurts free thought, then why has it been endorsed by the ACLU, the NAACP, and a whole slew of LGBT and T groups? I'm asking that as a legitimate question.