Hate Crime? No, I Love It!
Well, the last couple of weeks at work have been fairly uneventful, hence the recent topical wandering on this blog. But later today, that may change. This morning, I will be appearing on behalf of Mr. O at his preliminary hearing. Mr. O (along with two cohorts) is charged with a "hate crime," based on the following scenario:
Mr. O and his friends are in the drive-thru lane at Taco Bell. Two guys in the car behind Mr. O's have their stereo up more than a tad too loud. Mr. O and/or one or more of his friends tell them rather impolitely to turn down the stereo. The language used in the request includes "faggots," "queers," and "other derogatory terms." The guys with the loud stereo retreat out of the drive-thru lane but are pursued by Mr. O and friends who run them off the road to deliver a misdemeanor battery to one of them and a felony vandalism to their windshield. Again, epithets beginning with F and Q are hurled.
Is this a hate crime? To be a hate crime under California law, discriminatory motive must be a "substantial factor" contributing to the selection of the victim. In America, merely calling someone a "faggot" is not against the law, even while you're punching them in the face. Certainly the punching to the face is illegal, but the accompanying insult adds nothing to the culpability of the assailant, unless the victim is being punched because he is gay.
In my opinion, the question of motivation in Mr. O's case might well be resolved by finding out one crucial fact that was not included in the police report:
What was the loud music playing on the gay guys' stereo?
Oh, and I decided to take Nimiwey's advice and not argue to the judge that the hate crime enhancement should be stricken because it is gay.
posted by brainmarket @ 5:45 AM
12 Comments:
LOL OMG. It's not a hate a crime, this "victim" was not selected because he was gay, but more because he was rude. American men are homophobes, so calling one another "gay" is considered to be a HUGE insult. (IMO the guy wielding this as insult is expressing his inner Tom Cruise). Your clients may more likely be homophobes with little willies looking for fights to attempt to prove otherwise, probably would be gay-bashers if the opportunity arose, but in this instance, not as such.
PS IF they were listening to Cher, gay.
Do we know what they were listening to?
First reason I never wanted to go into law, I cannot defend somebody who offends my principles. In some ways people who can are much more flexible and open minded than me, in others some are more money oriented and less ethical; depending on reasons for doing it.
New Order, apparently. Not sure if it was one of the "gayish" remixes.
I don't think of it as defending a person, or his or her actions, sometimes these clients actions abhor me, however, we are defending their rights to a fair trial and a good defense. Most criminal defense attorneys are swimming upstream anyway...having to fight against THEIR OWN CLIENTS' STATEMENTS. Something like 90% of trials end with a guilty.
PS New Order = bi. It's hate crime, good luck with that one.
Hmm... Gay music (if it exists).
For the record:
I've heard "gay" used as a catch-all insult, having nothing to do with the insultee's sexual orientation. We can thank generalized homophobia for that one.
I've never heard "queer" used in the same way. (I'm struggling with the word "fag" and whether I've heard it used as a general insult or whether it tends to mean gay. Or cigarette!)
But I agree that even if the F and Q words were used and they meant gay, it still sounds like the crime was motivated by the music/noise issue....
---Anon
I am drawn to the final line of the post. Do you mean to say that you believe that 'hate' cannot make a crime more criminal than it already is?
Yes, Rebel. Unless it is the "hate" or, in legal terms, the "discriminatory motive," which contributes to the decision to commit the crime. If a crime is initiated without a discriminatory motive (as I believe was the case in the example I described), then the amount of "hate" felt or expressed during the commission of the crime is irrelevant.
We should not be punished for our thoughts and emotions, only our conduct.
Sheesh... New Order equals gay? Good lord.. Sounds just like a regu;ar equal opportunities thug drubbing to me, with some insensitive langiage bunged in to muddy the watersm
The law often prosecutes our thought (burglary...entering a building with the INTENT to commit a felony) conspiracy, attempted murder assault...being subpoenaed as a witness...then refusing to testify...
i need to lie down now
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