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View Diary: TX lesbian beaten unconscious on playground in front of children (133 comments)

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  •  Open and shut case (10+ / 0-)

    If they arrest the guy, of course. If he really said “well if you think you’re a man… I’m going to treat you like a man” that pretty much establishes why he beat her up: he hates women who “think they are men”. Which falls dead center into the definition of a hate crime.

    So, I hope they lock him up and throw away the keys.

    •  I don't think it's that open and shut (6+ / 0-)

      at least on the hate crimes element. It's clear the assailant did a horrible thing.

      But I see a major issue, which is, what motivated the attack itself. If it were a hate crime (i.e. the victim was attacked simply because the victim was a lesbian), then why didn't the assailtant attack the victim before the incident with the children?

      Presumably the assailant was at the same playground, and had seen the women from afar. Of course, there are reports that he thought the woman was a man, so that could be the prosecution's counter.

      But lost in this debate has been something important. That is, the ACTUAL language of Texas's hate crime statute. Because every person thinks they know what a hate crime is, and that's fine, but it's not really germane to the conversation. Really what matters (in terms of getting all pissed of at the police) is what's in the statute. And it says:

      In the trial of an offense under Title 5, Penal Code, or Section 28.02, 28.03, or 28.08, Penal Code, the judge shall make an affirmative finding of fact and enter the affirmative finding in the judgment of the case if at the guilt or innocence phase of the trial, the judge or the jury, whichever is the trier of fact, determines beyond a reasonable doubt that the defendant intentionally selected the person against whom the offense was committed or intentionally selected property damaged or affected as a result of the offense because of the defendant's bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference.
      I have bolded what I believe to be the relevant part of this statute. And there's a serious defense argument to be made that the assailant did not intentionally select the victim because of her sexual orientation. The defense attorney could very easily argue that the assailant singled out his victim for aggression before he even knew the victim's gender, much less her sexual orientation.

      The state argument, of course, would be that the assailant never intended to harm the victim until he found out that she was a lesbian. But this could be difficult to prove, given that stupid idiots fight over people approaching their children all the time.

      AND, here we get to the major crux of the issue, and why the police/prosecution have no interest in charging hate crimes in cases like this. It's because in order to prove the hate crimes element of the crime, they would have to, in some ways, undermine their underlying case. As I said earlier, you'd have to argue that the assailant approached the victim with no intention of striking her at first. The state would much rather argue a theory of the case that involves the assailant planning the attack for a few seconds before carrying it out. You open up certain defenses, and the possibility of a lessened crime, when you undermine in some way an important part of the underlying case.

      As with most things law, the devil is in the details. And the language "intentionally selected" is the problem here.

      My impression is that the federal law is more inclusive. I can't comment with any resolve because I haven't read it in its entirety.

      There is a reason why Texas hasn't used its hate crimes statute over the decade of existence (it has been used in like 10 cases, only one of which went to trial). It's because it is incredibly difficult to prove. This may say something about the quality of the legislature though they have never been accused of doing things to make life easier on criminals. This one kind of conflicts the deep-Texas Republican heart. It's a crime that makes life harder on criminals, but also protects groups that Texas generally doesn't protect.

      "I believe that, as long as there is plenty, poverty is evil." ~Bobby Kennedy

      by Grizzard on Fri Mar 01, 2013 at 08:51:05 PM PST

      [ Parent ]

      •  thank you (0+ / 0-)

        Many don't understand that something isn't a "hate crime" unless the person was singled out because of their respective protected class to begin with.

        I. E., if some mugger beat me up and yelled that I was some "dirty Mexican" it wouldn't be a hate crime...unless the mugger had deliberately decided to mug a "Mexican".

        "Obama won. Get over it."

        by onanyes on Sat Mar 02, 2013 at 03:44:07 AM PST

        [ Parent ]

      •  makes a good case (1+ / 0-)
        Recommended by:
        NancyWH

        for modifying the definition of hate crime

      •  Well, I would argue (0+ / 0-)

        that the assault did not begin until some time after the doer spoke those words, and that the victim was obviously chosen on the basis of being in a group identifiable by gender and sexual preference.

        It is not a crime to go over and talk to another parent on the playground. It's not necessarily a crime to argue or yell with another parent on the playground.

        It's a crime to attack them physically and injure them seriously, and that assault started only after the “think you're a man” words were uttered. This means that the victim was in fact selected on the basis of being a woman who looks like she was trying to be a man.

        In other words, until the decision was made to begin a criminal assault, logically, no victim had been chosen. The decision and the choice of victim were both based on the perpetrator's hatred for an identifiable group, a hatred which he expressed vocally as he swung into action.

        Therefore, unless the timing was very different from what was reported in the media, the requirements of the TX hate crime law were fully met in this case.

        •  Sure, you could argue that (0+ / 0-)

          but as the prosecutor, you have the prove it beyond a reasonable doubt. And what you're presenting just isn't that compelling.

          The reason is that the timing itself is not anything near the only thing at issue. In order for it to be a hate crime, the assailant had to choose the victim "because of" the victim's race/gender/orientation/creed/whatever.

          Committing a crime while being a bigot is not a hate crime. There's a fine distinction between that and attacking a person because of his or her protected status.

          The fact of the matter is that the assailant singled out the victim for confrontation after the victim approached the children. This alone is good evidence that the assailant engaged the victim because he didn't like the way she handled the situation, or because he didn't like the way she spoke to him, or whatever. This isn't a "preponderance" of the evidence sort of thing. The beyond a reasonable doubt standard is a high bar to clear, and there's plenty of reasonable doubt about the assailant's motive based upon the circumstances.

          Which goes back to the strategy element of this. Why would a DA intentionally weaken his case in order to try and prove an enhancement upon which he has very little evidence? Because, as I said, in order to try and prove a hate crime, you have to spend your time in trial painting the assailant as a person who approached the victim in a reasonable frame of mind. This brings into question what happened during the confrontation that might have led to the assailant throwing his punch.

          It's just not sound trial strategy in my estimation. DAs win cases by providing a non-wavering picture of the criminal as an "evil" person who was dead set on inflicting terror that day. It's difficult to get back to that characterization when the prosecution explains to the jury that, up until the fight, the defendant had just been going over to have a sensible talk.

          Likewise, the entire, "if you think you're a man, I'm going to treat you like a man," doesn't necessarily imply a hate-crime motive. That statement could have a number of different meanings, including, but not limited to a sexual orientation reference.

          The defense is going to argue that he was referring to her standing up to him. Or her confronting the children. Or her clothing. Or any number of other things than who she chooses to partner up with. They'd argue, I'm sure, that he was referring to her willingness to stand up to him.

          That introduces a question of whether he targeted her because of her status has a woman. But that implicates its own reasonable doubt issues.

          I still think the biggest problem with the hate crimes enhancement portion of the case is what happened before the altercation. This has to be considered at least as compelling evidence as to motive as any statements made there (short of, "IM GOING TO HIT YOU BECAUSE I HATE LESBIANS." which he didn't say). And I frankly don't think that part would present a competent defense attorney with any problem whatsoever.

          Essentially, they need to prove that he hit her because she was a gay woman. It's not enough to prove that he hit her because she was a gay woman who was talking to his kids. That introduces a second feasible motive, and it's more than enough for reasonable doubt. And while I wouldn't be surprised to learn that this man was a full-blown bigot, the presence of an alternative (and frankly, more plausible) motive muddies the waters for any DA.

          "I believe that, as long as there is plenty, poverty is evil." ~Bobby Kennedy

          by Grizzard on Sat Mar 02, 2013 at 03:14:47 PM PST

          [ Parent ]

          •  If you agree that (0+ / 0-)

            if everything was the same, but that he said “I'm going to hit you because you're a lesbian” before assaulting her, then the hate crime charge would be proven, then I frankly don't see why you think the same thing would be hard to establish if what he said was that since you think you are a man, I'm going to treat you like a man before assaulting her. In other words, I don't see a material difference in effect between “you're a lesbian” and “you think you're a man”, or “I'm going to hit you” (followed by an assault) and “I'm going to treat you like a man” (followed by an assault). Or for that matter, between “because” and “so”.

      •  Just my guess (0+ / 0-)

        The fact the assailant was at first going to talk to the "father" like figure, but after discovering he was a her that was butch, was now going to be treated lkike a man.  I guess the real question is if he admits to going over to assault the person who he thought was a male, then he is guilty of premeditated assault, and if he decided after learning she was a lesbian, then it is a hate crime, at least to my way of thinking.  Thank you for the thought provoking post.

        ''The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.'' - Justice Hugo L. Black of the Supreme Court

        by geekydee on Sat Mar 02, 2013 at 02:57:07 PM PST

        [ Parent ]

        •  Yeah, that's the conundrum (1+ / 0-)
          Recommended by:
          geekydee

          I'd say you have two major pieces of evidence:

          1) His steps. By that, I mean the decision he made to walk XX number of yards to engage in some form of conflict a person who had been talking to his kids (something that presumably he did not appreciate)

          2) His statements. Which, to my knowledge, referenced treating the woman like a man because she "thinks" she's a man.

          The actual words he spoke would be important in this scenario. I can imagine some things he could have said that would make a jury believe his steps were not a reflection of his desire to make an assault. But I haven't seen anything yet that would be so strong.

          It's not impossible to prove this enhancement to a jury. I just think it's difficult, and it could detract from the prosecution of the underlying crime (which is a necessary ingredient to having a hate crime anyway).

          It's important to understand that just because a bigot commits a crime doesn't mean it's a hate crime. Even if the bigot talks about his bigotry during the crime. There has to be a causal link between the prejudice and the action. Certainly the bigot's bigotry (whether demonstrated or not) is evidence of that causal link, but other motive-based evidence could exist (as it does here).

          In theory, you could select someone both because of their race/creed/sex/etc. and because of something they have done. And the statute technically allows for prosecution in these situations (it doesn't say a person has to select a victim ONLY because of their prejudice). In reality, though, the existence of two competing motives is probably too much reasonable doubt for a hate crimes enhancement to make it. I'm talking about plausible motives.

          "I believe that, as long as there is plenty, poverty is evil." ~Bobby Kennedy

          by Grizzard on Sat Mar 02, 2013 at 03:25:36 PM PST

          [ Parent ]

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