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September 18, 2007

Hate Crimes Quandary--a gay defendant?

In today's New York Times, the press points out that a defendant currently facing trial for a hate crimes act (killing a gay man based on sexual orientation) claims that he, too, is gay.  New York Times, Section B (Sept. 18, 2007).

This raises an interesting question--if the defendant is actually gay, should that matter?  In the usual hate crime scenario, the defendant is accused of having hurt or killed a person based specifically on the victim's race, sexual orientation, etc.  These types of crimes tend to carry higher penalties.  We tend to think that a crime based on these factors is a more heinous type of crime--similar to lynchings and other race-based killings from years past.

However, does it negate "intent" for the hate crime if the person charged falls into the protected class as well?  (Note that the NY Hate Crimes Act requires that the person "intentionally selects" the victim based on the protected class.  N.Y. Penal Law Section 485.05 (McKinney 2007)).

Is it possible to be a member of a protected class (for hate crimes purposes) and hate that class at the same time?  Probably.  It seems to me that membership in the protected class should not be an "automatic" nullification of intent.  Here's why:

Racial tensions run deep.  In Rwanda, for example, members of the same general "race" (African or Rwandan) further broke down their affiliations into sects and killed members of other sects based on race or group-affiliation.  Could someone be a member of the gay community, yet target other gay people?  Unfortunately, yes. 

Is this the type of crime that was meant to be punished by Hate Crimes Legislation?  That is a more difficult question, it seems to me...

I welcome comments here as I continue to research and think about this question...


September 18, 2007 in Other, Sara R. Benson | Permalink


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In addition to your Rwanda analogy, I would venture to mention certain Republican lawmakers of recent news fame who hypocritically vote against rights for homosexuals while engaging in those same actions themselves. Granted, bringing politics into this discussion gets sticky, but it leads to my general point that self-hatred is present in many groups. I don't find it at all hard to believe that someone of a protected group would attack a fellow member based on the protected characteristic.

Posted by: David Musselwhite | Sep 19, 2007 11:02:24 AM


Thank you for your comment. I agree that self-hatred and/or hatred based on membership in a particular minority group could be common. However, in the case of Larry Craig, he did not commit an act of agression against the LGBT community (at least not an act of agression that could be categorized as a hate crime), whereas, in the case of Rwanda, minorities were killing each other on the basis of race categorization.

Posted by: Sara Benson | Sep 25, 2007 6:59:05 AM

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