Judge rules using the slur during assault doesn’t make it a hate crime
ARTHUR S. LEONARD
An Albany trial judge ruled on August 3 against an attempted hate crime prosecution on the ground that the only relevant evidence was that the perpetrator called the victim a “faggot” while hitting him in the nose. According to Albany County Family Court Judge W. Dennis Duggan, this is not sufficient evidence to sustain such a charge without any evidence that the assailant knew or believed that the victim was gay.
An additional complication, and the reason this case was in the Family Court rather than a criminal court, is that both parties are 14-year-old boys (whose full names do not appear in Duggan’s opinion). According to the victim’s deposition, “I know John V. From previously attending Watervliet Elementary School with him. John V. has had issues with me starting in October & November, 2005. In the past, he has made references and stated that I was a queer, faggot, and a fucking bitch… Upon crossing 4th Avenue, I observed John run from the group towards me. John approached me. I turned around and stated to John, “What do you want?” John stated, ‘This is what you get for calling the cops on me Faggot.’ At this time John used his hand and struck me on the nose.”
The prosecutor alleged that John V. had committed a hate crime, a bias-motivated assault on the victim. But Duggan was not persuaded. Noting that the statute “requires that the victim have been ‘intentionally’ selected ‘in whole or in substantial part’ because of a belief by the defendant regarding the complainant’s sexual orientation,” Duggan found that “the petition and supporting documents allege no facts to support a direct finding or an inference that the alleged victim is homosexual” and “there are no alleged facts to support a direct finding or an inference that the Respondent believed that the alleged victim was a homosexual––except for the fact that he called him one. Finally, there are no statements of fact to support a direct finding or an inference that the Respondent’s actions were motivated by a belief held by the Respondent that the alleged victim was a homosexual. The most natural inference that can be drawn from the Respondent’s complete statement is that he was motivated by revenge because the alleged victim called the cops on him.”
Duggan’s decision was clearly affected by common knowledge that teenage boys use the term “faggot” indiscriminately as an insult without necessarily meaning that the target is gay. His opinion includes a lengthy history of the word “faggot,” emphasizing its varied meanings in American and English usage.
The crux of Duggan’s reasoning, however, turns on the behavior characteristic of teenage boys.
“To sustain this petition,” he wrote, “the Court would have to conclude that any fourteen-year old-boy who called another fourteen-year-old boy a faggot was motivated to hit him because he believed the person was, in fact, a homosexual and that conclusion who have to be based entirely on the fact that he called him a faggot. Anyone with any knowledge of teenage boys would conclude that it is just as likely, or even more so, that this is typical teenage trash-talking.”
gaycitynews.com
