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Hate Crimes: Enhancing mens rea to what end?

Hate Crimes: Enhancing mens rea to what end?

I’ll cut right to the chase on Hate Crimes.  I don’t like them.  Allow me to explain.  It’ll take a few paragraphs …

Let’s say that someone beats me upside the head with a baseball bat.  Hate when that happens.  I suffer significant injuries.  He gets 2 to 4 years on an Agg Assault charge.  I smile through my bandaged head from the courtroom galley seated in my wheelchair with a left arm that I can’t seem to stop twitching.

Eventually I heal completely.  I go for a walk wearing a traditional Lithuanian (which I am) garment (which I don’t – get the image out of your head – this is a hypothetical) and carrying a tray of freshly made perogies (which I might because I make them).  Some yahoo attacks me with a baseball bat yelling “I hate Lithwoks” (a very derogatory term aimed at my national origin).  A few months later, there I sit in my wheelchair (again) with twitching left arm (again) and smiling through my bandages (again) as the guy gets 5 to 10 for Agg Assault with a Hate Crime enhancement (achieved by bumping the level of the crime, more below).

There is one difference between the two “crimes”:  The words spoken.

Those words resulted in more time in prison.

Tell me, kind sir or madam, what crimes are committed when words are spoken?  Sure, screaming “fire” in crowded theater can cause panic, so we slap a Summary offense on it.  Inciting a riot can suck (and be just as hard to prove).  Our freedom of speech is critically important.  Without the words spoken in the second example of getting my ass kicked, it just wouldn’t be possible to tag “Hate Crime” to it.  Words have become the basis for significant increases in penalties – that’s a problem.

In order to have a crime, we need both thought and action.  The action is the baseball bat in repetitive movement to the side of my head.  That contributes to the existing crime of Agg Assault.  The Hate Crime element relies upon the exact same action.  Therefore, let’s be honest, we are punishing thought.  And that is a terrible precedent.  It just isn’t enough, in my mind, to assign the action of speaking certain words as constituting actus reus.

OK, off my soapbox.  Onto the law …

18 Pa. Cons. Stat. § 2710.  Ethnic Intimidation:

(a) Offense defined.–A person commits the offense of ethnic intimidation if, with malicious intention toward the race, color, religion, national origin,  of another individual or group of individuals, he commits an offense under any other provision of this article or under Chapter 33 (relating to arson, criminal mischief and other property destruction) exclusive of section 3307 (relating to institutional vandalism) or under section 3503 (relating to criminal trespass) with respect to such individual or his or her property or with respect to one or more members of such group or to their property.  [My note – this section used to include the additional categories of “ancestry, mental or physical disability, sexual orientation, gender or gender identity,” and the qualifiers “actual or perceived” before “race.”  Those additions were found to be unconstitutional due to the legislative manner in which they were added.  See Marcavage v. Rendell.]

(b) Grading.–An offense under this section shall be classified as a misdemeanor of the third degree if the other offense is classified as a summary offense. Otherwise, an offense under this section shall be classified one degree higher in the classification specified in section 106 (relating to classes of offenses) than the classification of the other offense.

(c) Definition.–As used in this section “malicious intention” means the intention to commit any act, the commission of which is a necessary element of any offense referred to in subsection (a) motivated by hatred toward the race, color, religion or national origin of another individual or group of individuals.

Let’s return to my ass kicking.  The underlying beating fits here:

§ 2702.  Aggravated assault. (a)  Offense defined.–A person is guilty of aggravated assault if he: … (4)  attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon;

That’s graded as a Felony 2.  Add the words and malicious intent of ethnic intimidation, and it gets bumped to an F1.

Now we can add a recent Pa. Supreme Court decision.  At issue is whether the hate-crime element needs to be the sole – or at least primary – motivator in the crime.  In Com. v. Sinnott, decided November 2, 2011, the defendant had an employment dispute with some guy.  The dude claimed he was “cheated.”  He then went after the guy’s wife. Long story short, contrary to the soon-to-be-defendant’s claims, the woman was from Puerto Rico not Mexico, thus her alleged “wetback” status was incorrect.  Further, “going back to the Alamo” was lame, Mexican or not.  After a few more allegations concerning her proclivity to share carnal knowledge of herself freely and of some genealogical ties to canines, there was a threat of bodily harm with a power drill and hammer.  Bodily harm did occur when the woman’s fingernails were removed without the benefit of anesthesia or a numbing agent of any kind when they caught on the aggressor’s clothing.  He was charged with simple assault, ethnic intimidation, and a couple of other things.

Although he was found guilty across the board, he won on appeal to the Superior Court to have the ethnic intimidation charge tossed.  The Court reasoned that the hate-crime aspect had to be, in essence, the primary motivator for selecting the victim.  The Court reasoned that the employment dispute was the primary motivator, and that the ethnic intimidation – although present – was secondary.  They tossed the conviction.

The Supreme Court reinstated the conviction:

Human beings may act with a single, exclusive motive; they may act for multiple reasons. Where one intent is criminal under § 2710 and the other not, the question is not which is primary or dominant. If the evidence of criminal intent (here, racial animus) is sufficiently established, it cannot be negated by establishing that a second intent coexisted in the mind of the actor. Such a rule would lead to an absurd result which the legislature did not intend. See 1 Pa.C.S. § 1922(1) (legislature does not intend result that is absurd, impossible of execution, or unreasonable). Accordingly, we hold § 2710’s intent element is satisfied if there is evidence that ethnic malice was a motivator for the defendant’s criminal act; it need not be the sole motivator.

This ruling serves to broaden the application of 2710.  It seems that if ethnic intimidation is merely present during the commission of the crime, then the hate-crime enhancement attaches.

Let’s return to a hypothetical comparison.  Assume that two hours prior to my second ass kicking above (wherein my national origin is cited in an unfriendly manner), the very same yahoos took the very same bat to another person.  This other person was a Hasidic Jew.  These yahoos have such an intense hatred of the black hat and curls that they could not bring themselves to utter a word – they just swung the bat.  That’s a Felony 2.

Now assume that just one hour before my second beating the yahoos agree to beat the 17th person they see.  After several re-starts then agreeing to lower the number to something they could count with their fingers, they find and beat some old guy.  That’s a Felony 2.

Then to find me and discuss my heritage.  That’s a Felony 1.

We all got whooped exactly the same.  The yahoos had ethnic intimidation in mind in two out of the three beatings, yet received an enhanced charge just once.  And because they denounced my national origin, my beating becomes more significant to society than the old guy’s?

This is why we look for overt acts in furtherance of conspiracies.  This is why actus reus is viewed first when looking for crimes, then we look at mens rea.  We want acts – not thoughts, not words – we want acts.  They are the best manner in which we can discern criminal behavior.

Here’s my fear in a nutshell:  The concept of hate crimes will be detached from the concept (used at present) of an underlying crime.  Then we will be punishing thought.

And here’s my complaint in a nutshell:  Just because some criminal beat me because I’m Lithuanian does not make it more egregious than the exact same level of beating another person took.  My life is worth no more or no less than any other person in society – and this is doubly so when we are making comparisons based upon immutable conditions.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

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