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    October 17, 2007

    A hate crime minus the hate

    Posted by: Chris

    Lost in all the headlines about whether to include transgender protection in the Employment Non-Discrimination Act is a brewing debate over the scope of the other gay rights law set to pass Congress: the federal hate crime law. Only the debate isn't over whether to include "gender identity"; it's already included in the version of the Matthew Shepard Act that has passed the House and the Senate.

    Amd_michaelsandy1 Until now, conservatives have opposed the Shepard Act based on the completely erroneous notion that somehow it would criminalize anti-gay speech or anti-gay sermons. They know full well that there is a specific provision that outlaws the use of any evidence of a defendant’s speech or beliefs unrelated to the offense itself.

    Hate crime laws can be difficult to reign in, however, as a jury in Brooklyn found out last week, when two young men were convinced of manslaughter and an anti-gay hate crime, even though jurors were convinced they weren’t homophobes.

    John Fox and Anthony Fortunato were prosecuted for the tragic death of Michael Sandy, a promising black gay designer (pictured). They had lured Sandy on a gay chatroom with the promise of meeting Fox to smoke marijuana and have sex. When Sandy showed, he realized it was a trap and ran onto a nearby freeway, where he was struck and killed by an oncoming car.

    Jurors didn’t break a sweat over whether the two were guilty of manslaughter, but they were deeply troubled about the hate crime charge.  That's because the judge had ruled back in August that under New York state's hate crime law, it wasn't necessary to prove that the defendants were motivated by hatred toward gay people. The prosecution only had to establish that Sandy had been targeted because he is gay.
    Even so, the defense gave it their best shot.

    Fortunato Fortunato's lawyer took the bigger gambit, having his client admit to being gay with the hope of convincing the jurors that he couldn't have been motivated by hatred toward gays since he was one himself.

    It almost worked. The jurors convicted Fortunato of the hate crime enhancement but were apparently very disturbed by the judge's ruling back in August. The jury foreman even said he and others wept while casting their votes because they felt compelled to do so even though they disagreed with the scope of the law.

    That's pretty powerful stuff, and it should give us pause about whether hate crime laws should be applied beyond the core type of offense they're intended to prevent. Hate crime laws are really a form of anti-terror legislation. Crimes motivated by hatred against a particular group have the same effect, after all, as terrorist acts: they send a message to the target group that they should be scared for their safety.

    But the Michael Sandy case and others where the victim is targeted simply for being gay aren’t intended to terrorize gays. They aren’t even motivated by some sort of anti-gay bias, unlike gay men targeted for robbery as they leave bars based on a belief they are weak and easy marks, or men targeted while cruising for sex in public parks because it’s assumed they'll be too embarrassed to report the crime.

    In the Sandy case, the defendants presumably thought that it was simply chose to lure a gay man to meet them in a public place with the promise of sex, something they just as easily could have tried with a straight man if any of them had been women. But if they had gone that route, seeking out a man in a hetero chatroom, would they have similarly been guilty of a hate crime, since they would have targeted him because he is heterosexual?

    All three types of cases go beyond the scope of what hate crime laws really should target: crimes motivated by hatred of the targeted group, but at least the gay bar and park cruiser examples involve anti-gay bias.

    Fortunately, the Matthew Shepard Act appears to be more narrowly crafted that the New York hate crime law. I say "appears" because hate crimes are defined one way in one part of the statute and another way in another part.

    The New York law defines a hate crime as "intentionally selecting" the victim "because of a belief or perception regarding" the sexual orientation of the person. The Shepard Act, on the other hand, requires the crime be "motivated by prejudice based on the actual or perceived" sexual orientation of the victim.

    So crimes motivated by hatred toward gays are covered by both statutes, and the gay bar and park cruising examples are covered under both laws. But the Sandy case, at least as I read the statutes, would not be a hate crime as defined by federal law.  As horrible and tragic as Michael Sandy's death was, that is the correct result. It's bad enough to prosecute a hate crime minus the hate, but to go after a bias crime minus even the bias goes way too far.

    I would limit hate crime laws even more, to require proof that the victim was targeted not simply because of his sexual orientation, or even based on prejudice against his sexual orientation, but based on hatred of the gay people. It's those violent crimes, motivated by hatred of gay people, that are intended to send a larger message of intimidation and terror to gay people generally, and which therefore deserve federal involvement and a heavier sentence.

    For complete coverage of the Michael Sandy trial and hate crimes generally, click or bookmark: gaynewswatch.com/hatecrimes

    For complete coverage of black GLBT stories, click or bookmark: gaynewswatch.com/black

    For complete coverage of GLBT-related crimes stories, click or bookmark: gaynewswatch/crime

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    Comments

    1. Sean on Oct 17, 2007 4:59:25 AM:

      I am disappointed and extremely angry with you, Chris. You actually believe the defense’s claim that this was not an anti-gay attack? Let’s examine the defense. Anthony Fortunato lures a gay man through a gay hook-up site, sets up a meeting with his victim, and then brings his buddies along when he meets the guy. The defense claimed that this was all so Fortunato could come out as gay and get some ass and drugs in the process. Hmm. How many gay people have come out to their friends while in the process of courting someone? I’m guessing none. The defense’s claims defy logic. Supposedly Fortunato wanted to come out. So he goes to an isolated area to tell his friends? Most gay kids are scared to tell anyone, they wouldn’t dare go to a remote location alone to tell a group of friends. Gay kids think of the worst possible scenarios for when they come out so why would he allow himself to be that vulnerable? The answer is because he is straight. He doesn’t know what it’s like to be gay. Isn’t it telling that Michael Sandy recognized that it was a setup and ran? Isn’t it telling that the perpetrators ran after him? Isn’t it telling that Michael Sandy had no drugs? Isn’t it telling that a group of four straight males attacked one gay man?

      We all know that if the law is the way you want it then the jury will turn into the straight good ol boys club where bias crimes against gay people are denied all the time. The jury foreman in this case is a straight male. Straight males are almost always the perpetrators of anti-gay crimes. In 1996, a scientist conducted a survey of anti-gay bias in straight males. He found that all the subjects were biased against gay people. Is it a surprise that the straight male foreman thought Michael Sandy’s death was not an anti-gay attack? No. That bias undoubtedly permeates the justice system in this country from the police to the jury. Results from the Implicit Association Test show that a whopping 68% of Americans have a negative bias against gay people, 13% have a favorable bias while the rest are neutral. If you are gay and a victim of a crime the perpetrators that victimized you will get lesser punishment than if you were straight and if you are gay and commit a crime you will get more punishment than if you were straight. That’s how the just system works in this country. Look up the statistics. I know the justice system is stacked against gay people, you should too.

      Here are two resources on anti-gay hate crimes:
      http://64.233.169.104/search?q=cache:qDGxkFhnWrsJ:www.chronline.org/PDFs/Express%252010-2005%2520Article.pdf+gay+inequality+police&hl=en&ct=clnk&cd=41&gl=us
      http://psychology.ucdavis.edu/rainbow/html/hate_crimes.html

    1. Citizen Crain on Oct 17, 2007 1:35:18 PM:

      Sean, I don't think your position is defensible because you're ignoring what the jurors said. I'm taking it as a given that the jurors concluded the crime was not motivated by hatred of gays. The judge similarly found that the law doesn't require the attack on Sandy was motivated by hatred of gays. My point is that hate crime laws ought to require proof that the crime was motivated by hatred of gay people.

      You can't just assume hatred of gays based upon the fact that some or all of the defendants are straight. That's the kind of stereotyping allegedly used by prosecutors in the Jena 6 case. You can quote all the surveys about bias all you want, but it would be a gross injustice to convict a defendant of a hate crime because he is straight and the victim is gay. More has to be required than that.

      As for Fortunato's story, I agree with you that the idea he hatched the crime to come out to his friends or gauge their reactions is bizarre. But even if you discount it, the judge still ruled that proof of hate isn't required and the jurors still agreed that the intent of the defendants was not to bash a gay guy. That's not a hate crime in my book.

      I think Michael Sandy's death was an ugly, senseless crime that hit me in the gut the same way it did you the first time I read about it. But you can't call it a hate crime based solely on the sexual orientation of those involved or the fact that he was lured through a gay chatroom.

    1. Double T on Oct 17, 2007 2:27:31 PM:

      A better title would have been

      *Lost in Translation*

      Sean, you have some great insight.

      Chris, you're acting as though it was a coincidence (the orientation of the individuals). Not so, they deliberately selected a gay male. That was not an accident. Why him?

      If I fire bomb a Synagogue and then deny I knew that it was one, would you have to proof that I was lying?

    1. North Dallas Thirty on Oct 17, 2007 4:20:57 PM:

      "They know full well that there is a specific provision that outlaws the use of any evidence of a defendant’s speech or beliefs unrelated to the offense itself."

      And they don't believe a word of it.

      Why?

      Because they know what gays and their national organizations really believe and are screaming ( http://thetaskforce.org/press/releases/pr815_042605 , http://thetaskforce.org/press/releases/pr919_020206 ) -- where they openly and flatly claim that speech caused these crimes and that these people should be prosecuted for "the blood on their hands".

      They also know that gays in Canada have used "hate crimes" laws to bring lawsuits against religious leaders to punish them and to stop them from speaking.

      And finally, they see what is happening in Jena, where black racists are shrieking "hate crime" over nooses, but spinning and making excuses for the actions of a gang of black thugs beating up a white man because of HIS skin color and insisting that they should not be punished.

      In short, what this makes obvious is that "hate crimes" laws ARE applied unequally and are used to punish and silence people who are not of the "correct" view, on the grounds that their words cause these behaviors, regardless of what the law actually says.


    1. Double T on Oct 17, 2007 4:48:19 PM:

      CORRECTION. No one in the Jena6 said, "No black person should be punished" , merely that the punishment should match the crime.

      Nice try spinning that story.

      Why don't you just admit you believe the nooses were "planted" by blacks and the whole thing is just made up by liberals at CNN.

    1. Jason on Oct 17, 2007 5:13:21 PM:

      It is unfortunate that North Dallas Thirty is using this discussion to attack some black kids who have nothing to do with this case, just a typical white person, playing the race card as often as blacks; when it is convienent for them. Calling people thugs and such has nothing to do with the story at hand, what happened to Michael Sandy. He was the victim of a hate crime. He was lured so that his victimizers could, at the very least beat him up. They knew he was gay. I call that a hate crime.

    1. North Dallas Thirty on Oct 17, 2007 5:46:47 PM:

      "Why don't you just admit you believe the nooses were "planted" by blacks and the whole thing is just made up by liberals at CNN."

      Because that wouldn't be true.

      No one in the Jena6 said, "No black person should be punished" , merely that the punishment should match the crime.

      LOL....given their argument that these boys are innocent and should go free without penalty, it's obviously not a crime for a gang of black people to beat a white person into unconsciousness.

      Didn't people like you, Double T, learn anything from the Duke lacrosse case?

      "It is unfortunate that North Dallas Thirty is using this discussion to attack some black kids who have nothing to do with this case, just a typical white person, playing the race card as often as blacks; when it is convienent for them."

      The Jena case, Jason, is an excellent example of what happens when "hate crimes" law and victim mentalities go completely out of hand and people are given passes because of their

      The point Chris is making here is that this crime veers dangerously close, if it doesn't, to heightening the penalty on people because of a characteristic of their victim versus their behavior.

    1. Sean on Oct 17, 2007 6:32:00 PM:

      Chris, Michael Sandy's death was a typical anti-gay murder motivated by hate. Did you not read any of the links I provided? Fortunato and the other three goons set up the meeting with Sandy so they could beat up a gay man. You say that the prosecutors have to prove that the defendants have hatred toward gay people. How the f*ck are they going to prove that to a straight jury? Do the defendants have to say they hate gay people as they are murdering one? As is shown in the links provided; gay people are attacked because of prejudice. The attack had all the hallmarks of an anti-gay attack.

      The judge should be awarded for his actions. He understood this case and made the right decisions.

      NDT, there is no such thing as a straight-hating gay person. That person or persons do not exist. Let me tell you why. You can live in an all white, all black, all yellow, all Jewish, all Catholic, all Muslim, or all straight (or what you believe to be) family. No person lives in an all gay family. Hate and prejudice begins with the family. Since gay people are not born into an all gay family and interact with straight people all-the-time it is impossible for gay people to be hateful. So don't compare good and honest gay organizations with black racists or any other hateful group.

    1. Sean on Oct 17, 2007 6:48:05 PM:

      "...characteristic of their victim versus their behavior."

      That's why Michael Sandy was selected and killed. Because of being gay.

    1. North Dallas Thirty on Oct 17, 2007 7:00:33 PM:

      "NDT, there is no such thing as a straight-hating gay person. That person or persons do not exist."

      Look in the mirror.

      "How the f*ck are they going to prove that to a straight jury?"

      "We all know that if the law is the way you want it then the jury will turn into the straight good ol boys club where bias crimes against gay people are denied all the time. The jury foreman in this case is a straight male. Straight males are almost always the perpetrators of anti-gay crimes. In 1996, a scientist conducted a survey of anti-gay bias in straight males. He found that all the subjects were biased against gay people. Is it a surprise that the straight male foreman thought Michael Sandy’s death was not an anti-gay attack? No. That bias undoubtedly permeates the justice system in this country from the police to the jury."

      Your prejudice and hatred against straight males reeks from every letter and punctuation mark in that statement.

      You are dangerous, sean, because you don't even recognize what hate, bigotry, and prejudice look like any more. Instead, you've divided behavior into two forms -- anything done by straights is hateful, bigoted, and prejudiced, and anything done by gays CANNOT be hateful, bigoted, and prejudiced.

      That road leads to Jesse Jackson and Al Sharpton's level of comic irrelevance.

    1. Citizen Crain on Oct 17, 2007 10:26:41 PM:

      Sean, your links (a) didn't work and (b) were presumably about anti-gay hate crimes in general. I'm always interested to learn but after more than a decade covering gay news, I'm pretty well informed about hate crimes.

      The evidence simply doesn't back you up that the defendants' plan was to "beat up a gay man." In fact, their attack lacked almost all the "hallmarks of an anti-gay attack." There was no evidence of anti-gay motive. That was WHY the judge ruled back in August that such evidence wasn't required.

      To assume prejudice anytime there are straight defendants and a gay victim is a form of prejudice itself. It is the mirror version of assuming the worst of a black defendant and a white victim (or vice versa).

      To protect the First Amendment, hate crime laws must require actual evidence that the offense itself was motivated by hate (or at least bias). Targeting someone in a gay environment, such as a chatroom or bar, isn't enough.

      The judge's August ruling may well be overturned, either because he took the statute too far or because the statute itself goes too far. Otherwise, it's just a bad law.

    1. Double T on Oct 18, 2007 11:43:52 AM:

      Chris, I'm confused.

      *Chatroom target = hate crime*

      So it's ok to target gays for crime because they make nice victims, just as long as you don't have hatred in your heart?

      Could Gay-on-Gay be a hate crime, I think so.

      If Larry Craig(or pick a name ) killed a gay person in Idaho, and sent the entire Idaho gay community into a panic, even though (bare with me) Craig is gay. Can he still not terrorize people for BEING gay?

      Could a Jew secretly working for the Nazis, running a death camp, could his actions not be considered anti-semitic?

      Enlighten me.

    1. Citizen Crain on Oct 18, 2007 12:53:55 PM:

      There are basically three kinds of targeting at issue here, Double T:

      1. Victim targeted because of hatred for gays (e.g., slurs used during an attack, or written on the victim's damaged property, gay couple beaten for holding hands): clearly a hate crime.

      2. Victim targeted because of bias toward gays (e.g., gays leaving bars picked out of a belief they're weak or won't report): probably a hate crime under most laws.

      3. Victim targeted in an environment that is exclusively gay (e.g., online or phone chatroom, pickpockets in gay bars): but for being gay, they wouldn't have been victimized, but otherwise no evidence of hatred or bias toward gays.

      I would argue that only the first is a "hate crime," intended to send a larger terror-like message, and therefore worthy of stiffer punishments

    1. Sean on Oct 18, 2007 10:46:04 PM:

      Chris, the killers went out of their way to kill Michael Sandy. They targeted him because he was gay. There was no drugs on him ok. The killers said they wanted drugs. He had no drugs. They wanted to beat up a gay man because they hate gay men.

      My links do work. Copy and paste them in the address bar.

      NDT, I'm telling reality because no one wants to say it. Straight males are almost always the perpetrators of anti-gay violence.

    1. North Dallas Thirty on Oct 19, 2007 1:11:14 AM:

      "Straight males are almost always the perpetrators of anti-gay violence."

      And based on that sort of logic, you can say all black and Hispanic people are gang members, because gangs are almost always predominantly black and Hispanic.

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