Ugh. This is repugnant, but I can’t honestly say that it’s inconsistent with the way the law is written, and thanks to our state legislative clusterfuck, it’s unlikely to change in the future.
I was not the trial attorney. I have not heard of such a procedure rule in West Virginia and it wasn’t mentioned by the State or the Court during the appeal.
I see your point, and the argument has some appeal. But I think it is important to limit statutes to what the Legislature intended. The fact that the Legislature has, on 26 occasions, refused to add sexual orientation to the hate crimes statute, says to me that there is a distinction between the two and that “sex” cannot be used to also cover “sexual orientation.”
But your point is well taken. Could the KKK member that he wasn’t whipping that black guy because he is black, but only because he is black and doing something else (like whistling at a white woman) that he doesn’t like. And Butler could argue that he didn’t punch this guy because he was a man, only because he was a man kissing another man.
I guess my objection is more to hate crime laws in general. Let’s say that Butler just thought I was ugly and punched me for that reason. We would all agree that it is only misdemeanor battery. Well, as far as I’m concerned, a random or unusual reason for punching someone is about the worst reason a person can have. It is worse if he punches me because of those enumerated reasons in the statute? I fear that what we are punishing, the distinguishing feature between the felony and the misdemeanor, is not the punch, but the belief behind it. And I think that belief is protected.
However, that was an excellent example and I’ll think on it some more.
In Virginia, you preserve your record by (of course) contemporaneous objections, but you also have to move for a new trial-post verdict; the theory there is you’re preserving the claims to which you objected in an aggregate sense as tainting the outcome. Fail to do that and the Commonwealth can insist that your appellate arguments are plain error only.
The only kisses I get are from my dirty-ass dogs. Only Teddy punches me afterward.
Now you have me worried and searching through cases. 
There has been some dicta in earlier cases talking about this waiver rule. However, since the State didn’t object, didn’t IT waive the argument that Payne didn’t preserve his objections below?
If the U.S. Supreme Court grants cert, it could not raise a state law issue sua sponte, right?
Sort of. Maybe it’s just how you said it but I think it is better understood as a crime not just against a given individual but also to a community.
The KKK lynching black men was not just to kill that one guy but to terrorize all black people.
As such you have two crimes: One against the person and one against that community hence two separate crimes.
I think this is essentially the opposite of what the issue was in this case. If a klansman killed a black man, the prosecution would be arguing that he chose his victim based on his race.
In this case, the prosecution had to make the opposite argument. They had to argue that the reason Butler attacked the two men was something other than the fact that they were gay. Because being attacked because you’re gay isn’t defined as a hate crime in West Virginia.
So the prosecution would have to argue that the fact that the victims were kissing at the time of the attack was just a coincidence and Butler attacked them for some other reason, like the fact that they were Scientologists or Koreans or Democrats. Then it would be a hate crime according to West Virginia law.
Hopefully this will wake some people up in West Virginia and get them to amend the law to include sexual orientation as a reason for hate crimes.
That’s another argument I can see.
Suppose instead of terrorizing black people, a serial killer terrorized everyone without regard to race. Is that better? To terrorize everyone instead of one group?
Pretty much. As tragic as it is, and as clearly bound to sex and gender as one’s sexual orientation is, apparently the state legislature repeatedly decided to vote down amendments including sexual orientation in hate crime laws (at this point almost certainly because they’re stupid or evil), so there’s really no case that that’s what the law supports when one examines the context. Sad, really.
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I guess my objection is more to hate crime laws in general. Let’s say that Butler just thought I was ugly and punched me for that reason. We would all agree that it is only misdemeanor battery. Well, as far as I’m concerned, a random or unusual reason for punching someone is about the worst reason a person can have. It is worse if he punches me because of those enumerated reasons in the statute? I fear that what we are punishing, the distinguishing feature between the felony and the misdemeanor, is not the punch, but the belief behind it. And I think that belief is protected.
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Intent matters during a crime. If I accidentally misplace my grandma’s heart medication and she can’t find it, it’s not the same thing as if I intentionally flush it, even if she dies in both cases. If your intent was not just “I’m gonna randomly slug someone” but “I’m gonna put that faggot in their place”, then sure, the effect is the same, but it’s coming from a much nastier, much more dangerous place. You’re essentially saying, “I have an animus against this group, and I’m going to show it.” It makes it more likely that you will repeat the crime if the punishment is merely a slap on the wrist. It means you are a legitimate danger to anyone who is a member of this group. It means people from that group have to live in fear of people like you.
Hate crime laws make quite a lot of sense to me.
Okay, here is why I stand by my original opinion: The laws that make it a crime to do harm to someone based upon race have the purpose of eliminating racial discrimination. So, if you would whip a black guy for whistling at a white woman, but not a white guy, that is the exact type of discrimination that the law intended to protect against. The criminal has an animus against blacks in general when they do things that he doesn’t believe is proper because of their (in his mind) inferiority for being black.
Laws protecting against discrimination based upon “sex” did not have homosexuality in mind. They were largely to prevent discrimination against women in employment. Homosexuality is not part of this equation as evidenced by the 26 times the Legislature has refused to add it.
So, if Butler punches a man for kissing another man, he is not doing so because he hates men; he is doing so because he hates gay people. Certainly a terrible thought to have, but not one punishable under the statute.
The situation that ‘hate crime’ statutes are meant to address is this:
- Kids start a bonfire, burning wood on a neighbors’ lawn.
- KKK members burn a wooden cross on a neighbors’ lawn.
Clearly, the 2nd is a more serious situation (especially if the neighbors are black, jewish, gay, catholic, Obama voters, etc.) But without these statutes, both cases would be pretty minor misdemeanor violations (trespassing, damage to the lawn, etc.)
The ‘hate crimes’ statutes are designed to compensate for the fact that the 2nd case is an attempt to threaten or intimidate a whole class of people, beyond just the neighbors involved. Lynching like you mentioned only happened to a small percentage of the black population. But it was intended to terrorize & intimidate the whole population (and mostly did).
In some ways, it’s worrying that these statutes do end up making a crime more serious because it’s a ‘thought crime’ – the intent of the criminal makes it a more serious offense*. But in practice, juries/judges seem to be able to see this, plus the offenders involved generally make their bigoted intentions clear.
- There are other crimes where this is true, for example: premeditated murder vs. murder vs. negligent homicide. The prosecutor has to convince the jury of the defendant’s intent to get the higher level conviction.
I disagree. The “I’m gonna randomly slug someone” attitude terrorizes all people: men, women, white, black, gay or straight. All of society is harmed. I’m going to slug a gay person is a terrible, awful belief, but one that impacts a small portion of society, say 5 to 10 percent of people. Why is terrorizing 5 to 10 percent of people worse than terrorizing 100 percent of people?
I don’t see why hate crimes statutes are necessary to make that distinction. In the first case you have young kids screwing around doing something stupid…misdemeanor juvenile violation.
In the 2nd case you have an intent to intimidate and implicitly threaten bodily harm. Instead of burning a cross, say a guy was screwing my wife, so I burned a bed on his front lawn. That is certainly more serious than kids dicking around and a neutral law could punish trespassing and burning something with the intent to intimidate more harshly than simply burning wood for whatever stupid reasons the kids do it.
But again, I fail to see how burning something on someone’s lawn with the intent to terrorize them because I hate their race is somehow worse than burning something with the intent to terrorize them for another reason. As I said, the latter affects all of society while the former affects only a portion of it.
Because “all people” don’t have to constantly live in fear of violence in the same way LGBT people or PoC do. When’s the last time you were worried about being physically or sexually assaulted for entering a restroom? That’s literally an everyday concern for transwomen. You never have to be worried about someone slugging you (or brutally torturing and murdering you) for making out with your significant other. Gay people clearly still do. Structures of institutional and societal power still matter. The “I’m gonna randomly slug someone” attitude is so rare as to be virtually non-existent. The “I’m going to beat the shit out of you, fag” attitude is a constant concern.
Pretty much every hate crime statute I have read requires the prosecution to prove the crime was motivated wholly or partly by the victim’s actual or or perceived membership of a certain class. And nowhere do I recall reading that victim being of such a class on its own is sufficient evidence.
Disproportionate impact.
Let’s say we have a society of a thousand people. A hundred of them are gay. If ten people in the population decide to randomly attack people, there’s a ~1% chance if any individual,being attacked. If these ten people decide to attack only gay people, there’s a ten percent chance of any gay person being attacked.
Hate crimes are done with the purpose to intimidate certain Groups of People from doing something that they are allowed to - men Holding Hands and kissing, black People living in your neighborhood, hispanic-looking People Walking in the street while speaking spanish.
All of that has caused certain Groups - Neonazis, KKK - to drive around looking for These People and beat them up, unto killing them - with the intent of scaring the others off.
If this were reveresed - if White People would be hunted when Walking outside, if a man Holding Hands with a woman would be called names - how would you feel? Would you think it okay to choose between staying at home or risk being beaten/ killed?
I think what TheSeaOtter is getting at is that “sex”, “sexual orientation” and “gender” each mean different things.