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

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  •  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”.

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