The rush hour subway car was packed with disinterested, sweaty New Yorkers. The car jolted to a stop and the doors opened with a sigh of relief. To the annoyance of those already in the car, the platform was filled with even more sweaty New Yorkers waiting to cram in. Included in this group was a one-legged, Nigerian bicycle messenger who used his bicycle as a walking aid. In he pushed, with his bike, and miraculously found a spot.
A couple was standing by the door waiting for their stop. She was average height, mid-30s. Her wife was tall and bulky, and transgender. The bicycle messenger shifted, and the bicycle brushed up against the large transgender woman. A fight ensued. She said he called her a derogatory name. Both parties threw punches, and the bicycle messenger ended up down on the platform with the transgender woman holding his bike and calling for police.
That was the scene lawyers set for a jury I served on in New York City. This particular case was the first time city prosecutors were using new hate crime legislation. The transgender woman was an activist who had supported the legislation at multiple rallies. The defendant denied calling her a homophobic slur. Her wife couldn’t say who threw the first punch.
The jury didn’t discuss arguments for or against hate crime legislation. We weighed the evidence and found reasonable doubt over who hit who first. As there was no assault, there was no hate crime.
Hate crime legislation is intended to enhance criminal punishment for crimes motivated by race, religion, sexual orientation, national origin or disability. Republican Sen. Daniel Thatcher introduced a bill in January that enforced a one-step enhancement for hate crimes. The bill affirmed that there must be an overt, obvious, action between the usually protected speech or expression and the crime. Thatcher plans to introduce the bill again in 2018. Legislators should pass it.
Teenagers in New Hampshire recently, allegedly, pushed a biracial boy off a table with a rope around his neck. Earlier this year a mentally disabled boy was hideously kidnapped, beaten and maimed, and it was streamed on Facebook Live by teenagers in Chicago yelling “F--- white people.”
Two men were killed by a white nationalist in Portland, Oregon, after they stood up to defend young Muslim women from bigoted attacks on a train. A woman in Charlottesville, Virginia, died after a man drove a car into a crowd protesting against a Ku Klux Klan rally.
Closer to home, a Utah man was recently indicted for assaulting a black neighbor and his son after he yelled, “n-----,” and, “get out of here,” at the young boy and assaulted the man with a stun gun. Prosecutors dismissed state court charges to facilitate federal civil rights charges, possibly because Utah’s hate crime law has no bite. Nobody has ever been prosecuted under Utah’s law.
But hate crimes also have a complicated history. In 2015 the state was rattled by a report of a crime near Delta, Utah, where a young man was beaten and had the words “Die Fag” carved into his arm. The young man later admitted to inflicting the damage himself in a desperate cry for help.
Is there a need for hate crime legislation? Is a murder really more heinous because the murderer was racist? Actually, yes. Take, for example, the murders in Portland. It would have been a tragedy if a man had walked through the train and chosen two people at random to stab his knife into. But the news that two young women had been verbally attacked on a train because of their religious clothing, and then two men who tried to defend them were killed for doing so, became a national tragedy. It was more heinous because it terrorized an entire group of people, a minority group, supposedly protected by the Constitution, and the very spirit of America.
In America, we don’t criminalize thought or belief or even most speech and expression. But when those thoughts and expressions become violent, they are crimes. Hate crimes are crimes against an entire community – crimes against society. I trust that juries can decide the difference between a thought crime and an actual crime motivated by hate.
The example of the bicycle messenger shouting a gay slur and allegedly throwing a punch on a crowded subway is small potatoes when compared to crimes we’ve seen recently.
We need to stop the hate.
Michelle Quist Mumford is an editorial writer for the Salt Lake Tribune who misses the stench and camaraderie of a daily commute on a New York City subway.