04/05/2011 03:02 pm ET Updated Jun 05, 2011

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."