Ever since defense attorneys made the announcement Feb. 24 in a Boston courtroom that three African-American women accused of an anti-gay hate crime in the Forest Hills MBTA station are lesbians, much of the gay blogosphere has been abuzz with the question: should a gay, lesbian, bisexual, or transgender person be convicted of an anti-LGBT hate crime? Wouldn’t that be a perversion of what such laws are supposed to be about?
And that debate has engendered new forms of old questions about whether hate crimes laws are really crimes against thought and free speech.
The case allowed the Boston Herald to trot out gadfly hate crimes law opponent Harvey Silverglate, the accomplished Boston civil liberties lawyer who, said in a Feb. 25 article, “My guess is that no sane jury would convict them under those circumstances, but what this really demonstrates is the idiocy of the hate-crime legislation. If you beat someone up, you’re guilty of assault and battery of a human being. Period. The idea of trying to break down human beings into categories is doomed to failure.”
Aside from anti-gay nutcases and nearly-as-nutty gay homocons who populate the anti-hate crimes universe, Silverglate has acted as the go-to guy whenever the right-wing Herald wants someone to rail against hate crimes laws. And he never disappoints, at least on this issue, because Silverglate is like the little old man in your neighborhood who is obsessed over kids stepping on his mangy grass. Except this grass has been dead since at least 1993 and the case Wisconsin v. Mitchell when the U.S. Supreme Court (SCOTUS) decided that the Wisconsin hate crimes statute (used to convict in that case some black men who attacked a white teenager) was indeed constitutional.
In a unanimous decision penned by conservative Chief Justice William Rehnquist, the court held that such laws furthered a legitimate government interest in preventing, among other things, retaliatory crimes against certain classes of its citizens and the incitement of community unrest through bias crimes against a class of citizens.
In addition, SCOTUS noted, prosecutors use a person’s state of mind all the time determine what kind of charges to bring against a defendant. After all, this is how prosecutors decide all the time whether a crime was premeditated or done in a moment of passion or perceived self-defense. Somehow because these same criteria are used to decide a bias crime—and these laws are only for serious crimes, not civil infractions—Silverglate seems stuck on the simplistic thought that it is a crime prosecuted solely on the content of one’s thought processes, and not simply to decide how to determine the motivation for the criminal act that will actually be prosecuted.
As for the question of whether a lesbians can ever hate gay men enough to be convicted of a hate crime against them, let us first entertain the possibility that, as much as one can abhor violence in any form, the gay male victim at Forest Hills may have brought part of this on himself. The three women say he bumped into them first and used racial slurs.
This would not be shocking. One of the great disappointments I’ve found in using Facebook is how quickly some of the people you thought you knew as good, progressive people can expose themselves fairly quickly as ignorant bigots. But that is a subject for another time.
The question here is: can LGBT people hate other LGBT people enough to be convicted of hate crimes against them? Of course they can.
Just the animosity between the members of those four groups—lesbians, gay men, bisexual and transgender folk—has been enough to start bar fights and shoving matches at community events, often over something similar to the simple bump and shove that is said to have led to the alleged attack on the MBTA. I’ve seen fight-seeking lesbians thrown out of gay male bars flailing and screaming with a security person on each limb, and I’ve heard enough anti-lesbian and anti-transgender venom from gay men to fill a book and then some. To suggest that none of this could lead to a lesbian-on-gay (or vice-versa) bias crime under the right circumstances is to be deluded.
It is also a given that some of our worst detractors and enemies in this community have been other gay men and lesbians, and I know of several examples of anti-gay attackers who came out of the closet later in life. I know several gay men who were themselves anti-gay bullies in high school. Fear of exposure can be a powerful motivator toward violence.
So let’s put to rest this inane debate, once and for all, because it is pointless. LGBT people who physically attack other LGBT people solely on the basis of sexual orientation or gender identity should answer for it just as any other hate crimes perpetrator should be prosecuted. That is what these laws are for. It is part of why they continue to make perfect sense.
