Thursday, June 24, 2010

When hate crimes aren't about hatred

I don't know what I think about this -- so I'll share. This is my blog after all.

Wednesday's New York Times carries an interesting story about how a Queens prosecutor is using a "hate crimes" enhancement to get win penalties in elder abuse cases. People who steal from vulnerable elders don't hate their victims. As the prosecutor says:

"Criminals that prey on the elderly, they love the elderly -- this is their source of wealth," said Kristen A. Kane, a Queens assistant district attorney.

She's been winning cases. Normally crooks who defraud old people don't go to jail unless they steal more than $1 million, but New York's hate crimes law is written ambiguously enough so that she can bring a hate crime enhancement to a fraud charge simply because the crook in question singled out a protected group -- the aged -- for the crime. Consequently, guilty persons who would have gotten probation find themselves doing short jail time after a plea bargain and in danger of serving long sentences should they re-offend.

It's an interesting tactic and certainly these elder abusers should get hit with major penalties for taking advantage of vulnerable people. The crime is particularly repulsive; we should be able to live out the end of our lives without having to fear ostensible caregivers.

But having mused before on how the media can explain hate crimes well and being a member of group that just recently won inclusion in federal hate crimes laws, I'm a little disturbed by the implications of this prosecutor's legal ingenuity.

Hate crimes laws make the existence of animus toward a group important by making its presence a factor that makes an existing crime more serious. It's not a hate crime to call me a "stinking, ugly lezzie!" But if you yell this insult while walking up to me on the street and hitting me over the head with a bottle, you can be charged with assault and a hate crime enhancement that increases the penalty for the assault.

I was thrilled last fall when President Obama signed the law (the Matthew Shepard-James Byrd Hate Crime Prevention Act) which finally included sexual orientation and gender identity among listed categories of hate crimes. But I wasn't thinking about the fact that abusers could now get more jail time for their crimes. I was thinking that our society had finally, through its laws and political processes, affirmed that there was something terribly wrong with gay-bashing. What for some had been a kind of acceptable sport was no longer socially acceptable. The affirmation of LGBT humanity was more important than the new legal penalties. I know prosecutors are often reluctant to charge "hate crimes" because doing so complicates the hard facts of cases with discussion of motivation; the new law isn't going to cause much of a rise in prosecutions of violence by bigots. But finally the law was unambiguous about protecting me. Hooray!

Since I am focused on how the public acknowledgment the existence of real hatred against target groups affirms those group's right to be full members of society, I'm a little uncomfortable seeing a prosecutor using a law that serves that purpose to get at the society's failure to properly penalize ripping off or otherwise abusing elders.

Maybe we need tougher laws against abuse, rather than twisting laws that make acting out of hate an add-on offense into an instrument to increase excessively light penalties in cases where no felt hate is involved? Do we really think elders should be safe? Maybe we should make sure our laws enforce that belief.

Poster from Winnipeg, Canada Elder Abuse Resource Centre.
UPDATE: A new instance of my "Gay and Gray" columns, An Elder Hero for Gay Humanity, is posted at Time Goes By today.

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