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When Is a Hate Crime Not a Hate Crime?


It’s hard to argue with the sentiment behind hate-crime laws. Who, after all, isn’t against hate? Many states began creating a special category of punishment for racial prejudice or homophobia or anti-Semitism in the nineties as a response to bias crimes that clearly seemed to be about much more than violence against just one person—like the Yusuf Hawkins case. They were meant to acknowledge that certain crimes resonate more than others—and are, in effect, attacks on our society. At the time, these new laws seemed like a healthy reflex of a justice system that prides itself on protecting minority rights. The politicians who created them, and the constituencies that supported them, agreed that creating special punishment for crimes of hate—singling out racism, homophobia, and anti-Semitism as so abominable as to require a unique reaction—didn’t just punish a criminal but helped to correct a larger social ill.

But the Anthony Fortunato case points out the limitations of hate-crime laws. Lots of gay hate crimes, for one, are committed by confused, self-loathing gay people. Does the perpetrators’ gayness make their crimes any less horrible? Should it even be considered a mitigating factor? Since Michael Sandy was black, why weren’t Fortunato and his friends charged with hate crimes against blacks?

The New York State hate-crimes law has been controversial since it was passed seven years ago. At issue is the question of motive versus deed. An original version of the bill in the Democratic-controlled State Assembly had required that both factors be considered—that to be convicted of a hate crime, the criminal must demonstrate “invidious hatred, prejudice, and bias” and single out the victim based on his race, religion, sexual orientation, or the like. But the final version, a bill that came out of the Republican-controlled State Senate, made motive almost irrelevant. All that mattered was the selection itself.

“Guys, you can get high with someone that’s gay, right?” Fortunato asked his friends. “You don’t have any problems?”

The trouble with that law, critics say, is that a hate crime doesn’t even have to involve hatred. “What if a black person decided to prey upon another black person out of a perception that black people are weak, more susceptible to crime?” asks John Sampson, an African-American state senator from Brooklyn who helped pass the law but now believes the way it’s being applied has exposed its loopholes. Is that a hate crime? He doesn’t think so. “With examples like that,” he says, “we’re moving away from the spirit of the law.”

Sampson would prefer to see a law that “looks at a person’s prior acts.” The goal would be to identify whether the person was truly bigoted—and whether the crime was committed specifically out of hate. Testimony could be given; witnesses called, he says. But even then, he concedes, such a law would be imperfect. How can you know what’s truly in a person’s heart?

Those are practical, legal issues. In the end, there’s still a larger philosophical question hovering over the whole notion of a hate crime: Why does it matter if a murderer kills for reasons of bias? Isn’t a murder a murder?

Back at Rikers, Anthony tells me that in the flash of the moment they shook hands at the car on Coyle Street, he thought he liked Michael Sandy. He certainly didn’t hate him, he says—he seemed like a nice guy. That summer, he’d been looking for older men who were gay whom he could turn to for advice and help understand better who he was.

He tells me he was 13 years old when he first suspected he was gay and 14 when he first masturbated in front of a friend. “He was my first good friend,” Anthony says. “But he eventually started, like, coming on to me and touching me. And I wasn’t comfortable with that. So I just stopped hanging around with him. But then I noticed when I was watching heterosexual porn I was also watching the men—and the women. I didn’t know what that really meant.” Even if he had been certain he was gay, he says, he couldn’t have come out. “My family was always very happy … My mother always talked about, you know, someday she wants to have grandkids. And I couldn’t come to terms with denying them that dream.” The girlfriends sort of just happened, he says. “They were always dominant girls, so it was pretty much what they wanted when they wanted it. I was all right with that.”


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