HJ-ED-DHJHerald Journal Columns
August 20, 2007, Herald Journal

Hate crime laws are confusing


Charging someone with a hate crime is difficult. First, the police have to know what the suspect was thinking at the time of the crime, and no one can read another’s thoughts. Also, the prosecuting attorney must convince a jury or judge that the penalty for “hating” and assaulting or killing the victim, should be stronger than merely assaulting or killing the victim.

In addition, hate crime legislation nullifies the freedom of expression clause of the First Amendment when it’s “hate” speech that offends the victim. The police have to decide whether the offense is speech or “hate” speech.

On top of all of those, now there is a confusing double standard in determining whether a crime is a hate crime.

Stanislav Shmulevich, 22, a student at New York’s Pace University, has been charged with a felony hate crime for tossing a Koran in the toilet following a row with Muslim students, according to Christopher Orlet of the American Spectator Aug. 10.

“There is, after all, no statute criminalizing the desecration of the US Flag, the Torah, or the Bible. New York’s galleries are filled with defiled and despoiled Christian symbols that are considered by critics to be ingenious works of art,” Orlet said.

The hate crime “rule of thumb,” according to Orlet, seems to be that what is a crime for one group, is protected speech for another.

“Hate crime statutes treat perpetrators of the same crime differently, because they hold different beliefs,” Jacob Sallum said.

For example, it is not a crime to desecrate Christian symbols, but it is a crime to desecrate other religions’ symbols, unless you are a Muslim desecrating Jewish symbols. Muslim desecration of Jewish symbols is protected “speech.”

In New York, it is a crime to desecrate the flag of an Islamic country, but not an American flag.

The biggest hurdle prosecutors in New York will have with Shmulevich’s case is that he committed his act against an ideology, not a person. There were no witnesses. He was apprehended because he stole the Koran from the university’s library, and the theft was recorded by the library’s security camera.

Originally, Shmulevich was arrested on a misdemeanor charge. Islamic groups complained, so the charge was upped to a felony hate crime.

What is even more ironic is that Shmulevich was reacting to something the Muslim students had said, that he found to be hateful and insulting. If he had complained to the authorities instead, would the Muslim students have been charged with a hate crime? Not bloody likely.