Could Defendants' Backgrounds Challenge Hate Crime Law?

Two assaults with undertones of hate crime garnered headlines last week.

In one case, a homeless man is charged with brutally beating a gay man outside a West Village McDonald's. In another, a 12-year-old boy is accused of trying to rip the head scarf off a Muslim classmate, while asking, "are you Muslim?"

In both cases, the defendants' backgrounds could weigh into whether they are convicted of a hate crime. The homeless man told police he should not be prosecuted for a hate crime because he too is gay, while the father of the 12-year-old said his son is also a Muslim.

Damian Furtch, who was attacked outside the McDonald's, told the New York Post, "the fact that the attacker in custody alleges he is gay does not change the fact that he shouted anti gay slurs while attacking me."

Mark Bederow, a New York City lawyer who has been both a prosecutor and defense attorney in hate crimes cases, said he is skeptical of the gay defense in Furtch's case.

"I don't think that's what I would call a great defense," Bederow told HuffPost. "If somebody is attacked because of what they are, that's the purpose of the hate crime law. It could be something a jury would factor in, but all it would do is turn it into a mini-trial on whether a defendant is gay and I'm just not sure how that's relevant."

Bederow takes a different view of the case against the 12-year-old boy.

"The prosecutor should use serious discretion here before charging a hate crime, given the circumstances as I understand them, including the history of the two involved and their ages," Bederow said. "If these are all of the facts, then I don't see this as a hate crime."

But Bederow also noted that just being a member of a persecuted group is not an iron clad defense against a hate crime conviction.

"The fact that the defendant may be Muslim is certainly a relevant factor to be considered by the DA in considering hate crime charges, but it's not a dispositive factor," Bederow said. There is no 'I am a Muslim so I cannot commit a Muslim hate crime' defense."

Comments

[Shawn Kelloway]

02:52 PM on 04/06/2011

All crime stems from some sort of hate.

I hate people that have money and I don't, so I rob people I think have money! Hate Crime!

I hate you so I beat you up. Hate Crime!

This legislation appears to focus on what people say during or after the attack. If you use society accepted stereotypical phrases to marginalize the person you are committing a crime against then that is a hate crime.

In the future, criminals should keep their mouths shut while beating the crap out of someone, take a plea bargain, and save themselves some jail time. If your gonna be a criminal; be a smart criminal.

-- Paid for by Smart Crime That Pays

[Angry Cloud]

03:15 AM on 04/06/2011

Did the homeless man come to blows with the gay man because of hate or some other reason?

[joebiteme]

07:27 PM on 04/05/2011

The entire hate crime philosophy is bogus. They are either guilty or not of a crime. Notice that OJ was never prosecuted under the statute. Nor have gays or other minorities even been prosecuted. The recent attack of a white child with limited mental ability only garnered a black student a 3 day suspension

[MoeB]

11:58 AM on 04/06/2011

It appears that your beef is not really with hate crimes, but with the enforcement (or lack thereof) of hate crimes that affect whites and straight people. I'd love to hear of an instance of a gay person attacking a straight person because they were straight.

And why would OJ have been prosecuted under hate crimes legislation? Did he allegedly kill those folks BECAUSE they were white?

[joebiteme]

02:15 PM on 04/06/2011

yep

[mikey09]

06:32 PM on 04/05/2011

So, two girls are in a fight and one calls the other a "B".....is that a ha8 crime against women? Is it possible for 2 gay men to get into a fight and use ugly talk, 2 kids of the same religion?...interesting.

[pbnyc59]

06:48 PM on 04/05/2011

Two gay men did not get into a fight and use ugly talk, one man who claims to be gay beat another man who is gay while calling him gay slurs. If the attacker is gay it is irrelevant, many gays are self hating.

If a black man puts on a white sheet and hood, then burns a cross on a black family's home, it is still a hate crime. Against the family, and sadly himself.

[thereisonlyoneparty]

01:54 AM on 04/06/2011

That is stupid though.

"Gay slurs"?  What were those?

And it has nothing to do with self-hating.  It has to do with using appropriate words for the situation.  You do not use insults for a "race' against someone who is not that "race", you know?

The use of slurs does not even mean that someone is hateful or bigoted either.

[MoeB]

04:59 PM on 04/05/2011

It shouldn't matter if the attacker is an alleged gay or not. If the reason he attacked that man was BECAUSE he was gay, then the same rules apply if a straight person had done it because of his sexuality.

[thereisonlyoneparty]

01:55 AM on 04/06/2011

According to the other news story it was due to clothing.

[MoeB]

11:55 AM on 04/06/2011

What clothing? Did the guy not like what he was wearing?

[Kim Visan]

03:09 PM on 04/05/2011

Disgusting no matter who is the perpetrator!