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A hate crime minus the hate
A hate crime minus the hate
Michael Sandy's killers were convicted of a hate crime even though they weren't anti-gay. The law went too far even in his tragic case.

by Chris Crain - SGN Contributing Writer

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 a protected category in the Matthew Shepard Act, which has passed both the House and the Senate.

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. 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. Anthony 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 very disturbed by the judge's interpretation of the statute. 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 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 Shepard bill 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.

Hate crime laws really ought to be limited 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, and which therefore deserve federal involvement and a heavier sentence.

Chris Crain is former editor of the Washington Blade and five other gay publications and now edits GayNewsWatch.com. He can be reached via his blog at ?www.citizencrain.com.


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