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Is Being Gay a Defense to Gay Hate Crime?

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By Christopher Coble, Esq. on June 17, 2015 3:55 PM

It's not racism because I'm a minority too. It's not sexist because I'm a woman too. It's not a hate crime because I'm gay too?

On Cinco de Mayo, two gay men were beaten during a brawl. The victims claim it was a hate crime. The defendant claims he's gay too, so it's not a hate crime. Is being gay a defense to a gay hate crime?

The Brawl

Jonathan Snipes and Ethan York-Adams were leaving a New York restaurant called Dallas BBQ. Reports say Snipes accidentally bumped into a table and spilled a glass of water. He claims he heard someone say, "White f****ts, spilling drinks." Insulted by the derogatory slur against his sexual orientation, Snipes got into a heated argument with the men at the table. A brawl ensued. A man, later identified as Bayna-Lehkiem El-Amin, bashed the two victims with a chair.

The two victims claim they were attacked because of their sexuality. Meanwhile, El-Amin claims that he is gay as well, so it wasn't a hate crime. In fact, El-Amin argues that Snipes was the aggressor in the fight.

El-Amin recently turned himself in to police. He has been charged with assault and attempted assault, but not with a hate crime. According to the New York Daily News, police sources say there is no hate crime because El-Amin is gay as well.

Hate Crime Laws

While El-Amin believes (and so, evidently does his attorney and gosh, the NYPD) he gets a pass on the hate crime charge simply because he is gay, the law isn't written quite that way.

New York's statute states, "A person commits a hate crime when he or she commits a specified offense and ... intentionally selects the person against whom the offense is committed ... because of a belief or perception regarding the race, color ... sexual orientation of a person, regardless of whether the belief or perception is correct."

A crime does not automatically become a hate crime just because the victim is gay and the defendant is straight. Similarly, the fact that a defendant is gay as well does not mean a crime is automatically not a hate crime. It would, however, be much harder to convince a jury that a gay man would have the needed intent for a gay hate crime.

To be a hate crime, the defendant must be motivated by his hate of the victim's sexual orientation (that's the intent). El-Amin claims he didn't even attack the victims, they attacked him. He would also say he didn't attack those victims because they were gay, but because they were arguing. Lucky for his case, despite the victim's claims of anti-gay slurs, the Daily News reports there isn't evidence of such slurs on the videos.

In the end, it is most likely the police didn't find enough evidence of El-Amin being motivated because of his victims' sexuality, so they did not charge him with a hate crime. He did not avoid a hate crime charge just because he happened to be gay too.

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