Thursday, June 21, 2007

Do “Hate” Crimes Have to Involve Hatred?

Earlier this week, the New York Times ran a story about a case that is unfolding in the New York courts. Three men – Anthony Fortunato, John Fox, and Ilya Shurov – have been indicted for murder under the state Hate Crimes Act in connection with the killing of twenty-nine-year-old Michael Sandy. The three defendants allegedly entered a gay chat room to find a robbery target, selected Sandy in that chat room, and lured their prey into meeting with them at a deserted spot. They stand accused of subsequently beating Sandy and chasing him into traffic, where he sustained injuries that led to his death in the hospital.

The defense is asking the judge who approved the indictment, Justice Jill Konviser-Levine, to dismiss the hate-crime-enhanced murder charges, on the ground that there is no evidence that the defendants hated gay people. The prosecution responds that unlike other states’ hate crime legislation, the New York Hate Crime law does not require hatred or animosity toward the group from which a victim is selected.

The relevant language of the law provides for longer sentences when a defendant was motivated to select her victim in whole or 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 [the victim].”

How does one interpret the language of the statute? On its face, it appears to cover the decision to target a person because he is gay, even if the “belief” regarding gay people has to do – as defense attorneys claim here – with opportunism rather than hatred. According to the defense, the choice of a gay victim reflected a belief that a gay man would be more willing to meet in a deserted spot, more likely to show up alone and to be in possession of money or drugs, and less likely to resist attempts to rob him. If hate need not be proved, defense attorneys add, one could classify crimes against the elderly, women, and immigrants – selected for their perceived fearfulness and inability to fight off assailants – as hate crimes.

The dispute between the defense and prosecution seems squarely to raise the question of what is the essential point of hate crime statutes. If the point is to address “hatred” of particular groups, as the word “hate” in the title suggests, then prosecuting a robber for picking old women as easy targets would seem misconceived, inappropriately exposing garden-variety robbers to enhanced sentences. It is natural for criminals more generally to choose a victim who they believe will offer the greatest payoff at the lowest risk. That stereotypes play a role in guiding such choices does not make them hate-motivated, in the way that a lynching is.

One might conceive of hate crime statutes differently, however, as addressing something broader than group-directed hatred. They may be about extending added protection against (and hence punishment for) crimes that discriminate – for whatever reason – on the basis of enumerated characteristics. The hate crime statute, if read this way, represents a recognition of a distinct harm in being targeted as a crime victim because you are a member of a particular group, much in the way that anti-discrimination law conceives of adverse employment decisions on the basis of race or sex to be a distinct harm.

When an employer decides to fire an employee because of the latter’s race, it may be out of the belief that people in particular racial groups are less intelligent or able than people in other racial groups. A holder of such a belief does not necessarily feel any hatred or animosity toward the perceived “inferior” group. Similarly, an employer who refuses to promote women because they believe women’s priority will be their families rather than their job does not necessarily “hate” women, but he or she does still discriminate against them on the basis of sex. As a society, we believe that such discrimination is qualitatively different from, and worse than, decisions (to terminate, to fail to promote, and to rob or kill) that have nothing to do with invidious classifications.

Perhaps the ambiguity lies in the statute’s use of the word “hate” in “hate crime.” Maybe what is meant, at least in New York, is that the crime targets people on the basis of a category that is frequently associated with invidious hatred. It is, for example, possibly because of a more generalized hatred against gay people (and the stereotypes that have developed as part of that hatred) that a group of men planning a robbery might be led to believe that a gay chat room would be a good place to find a compliant, lonely, and cooperative victim. That they might do so out of greed combined with stereotypical thinking rather than out of hatred does not alter the reality that they have discriminated against a man because he is gay.