Monday, June 25, 2007

An Easy Target, but Does That Mean Hatred?

By CLYDE HABERMAN
NYC
The New York Times
June 26, 2007

Hate-crime laws have long had their skeptics, and the one enacted by New York State in 2000 is no exception.

The law increases the penalties for wrongdoing committed out of hatred of the victim because of factors like race, religion, age, sexual orientation or disability. Beat up someone for being, say, Jewish or black or gay, and you will do extra prison time if convicted. The theory is that a crime motivated by hatred can affect an entire community, not just the victim.

But as critics see it, the law punishes thought. The actions themselves — assault, for example, not to mention murder — are already serious crimes. Adding years to a mugger’s sentence because he dislikes Jews or blacks or gays amounts to a penalty for holding beliefs that society considers unacceptable. So the critics would say.

And there lies an Orwellian slippery slope, they say. What other thoughts might one day be deemed impure? Some object to the creation of different classes of victims; they say it undermines the 14th Amendment’s guarantee of “equal protection of the laws.”

Now a case in Brooklyn adds a new twist, in the form of a question that goes to the heart of the law:

Can you have a hate crime without hate?

Yes, the Brooklyn district attorney says. But to a lawyer for three men charged with murder, that is “absurd.” It is up to a state judge in Brooklyn to decide who is right.

The case is rooted in the death of Michael J. Sandy, 29, last October. According to the charges, the three men used an Internet chat room to lure Mr. Sandy to a secluded area in Sheepshead Bay known as a gay trysting spot. They were in search of money and drugs, it is charged, and thought that a gay man would be an easy target, unlikely to put up much resistance or to report the crime.

The charges say that they beat Mr. Sandy, but that he broke free and ran onto the nearby Belt Parkway, where he was hit by a car. Five days later, he died.

The defendants are accused not only of murder but also of murder as a hate crime. It is the hate-crime charge that their lawyer, Gerald J. Di Chiara, wants tossed out. They bore no ill will against gays, Mr. Di Chiara says. “The crimes alleged are not crimes of hate but rather crimes of opportunity,” he wrote the judge, Justice Jill Konviser-Levine of State Supreme Court.

The distinction that Mr. Di Chiara makes is significant, some would say. Not Brooklyn prosecutors, however. They acknowledge that there is no evidence of “an animus toward gay men” by the defendants. But blatant hatred is not required under the 2000 law, they say. If it were, the law would have explicitly said so.

What it says instead is that a person commits a hate crime when he makes someone a target “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.” The prosecutors say that the three men picked on Mr. Sandy precisely “because of a belief or perception” about him — namely that a gay man would make a soft target.

The statute’s language, they told the judge, is “unambiguous.”

WOULD that life were so simple.

The law also says that “proof of race, color, national origin” and all the rest “does not, by itself, constitute legally sufficient evidence” to substantiate a hate crime charge. More is presumably needed. Like what? Mr. Di Chiara cited a State Senate memorandum from 2000 that spoke of limiting prosecutions to “only those who are truly motivated by invidious hatred.”

Invidious hatred? Not on the part of his clients, the lawyer said. They were just looking for easy pickings.

Under the prosecution’s interpretation, he said, hate crime charges could be brought against a mugger who attacks an old woman in the belief that she will offer little resistance. Or against a burglar who goes after an illegal immigrant figuring that the victim won’t go to the police.

One might also conclude, Mr. Di Chiara said, that “all sex crimes are hate crimes because the victims were chosen ‘because of’ their sex.” Yet you do not see rapists routinely prosecuted as hate criminals.

Slippery slopes. They are what happens, some say, when the law does not let actions speak for themselves, and climbs into people’s heads in often fruitless attempts to figure out what is rattling there.

E-mail: haberman@nytimes.com

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