It was inevitable that the video would instantly become national news: like something from a horror movie, a mentally-disabled 18-year-old was bound with tape and tortured, the attackers' ambivalence about their own cruelty magnified by streaming it live on Facebook. And it was inevitable that officials would be pressured to call it a hate crime, as the video was punctuated with attackers allegedly saying "fuck Donald Trump," "fuck white people," and that the victim "represents Trump."
The so-called Facebook 4 have been charged with hate crimes. But it's a complex process, as a lawyer told the Tribune today:
Josh Kutnick, a longtime criminal-defense attorney who has represented several people charged in Cook County with hate crimes, said such cases are often difficult for prosecutors to prove.
"It's hard to prove that something was done 'by reason of,'" Kutnick said. "No one ever says, 'I'm pounding on you because you are black,' or, 'I'm pounding on you because you are gay.'"
This has long been an issue in defining and prosecuting hate crimes—and in Illinois the laws are drawn and have been interpreted rather broadly to include those gray areas.
The Facebook video, given its racial language, may not seem so gray. But consider how police say the attack begins. The white victim, who was friends or at least acquainted with one of the alleged attackers—all African-American—from school, had been hanging out with that alleged assailant for a couple days, and with the other three for a few hours. Then the two got into a "play fight," which escalated into the torture seen on the video.
So was the attack done "by reason of" the victim's race? Or was the hate speech a tangent from violence that came from anger or just sadism?
"Mixed-motive" hate crime has long been a legal problem; for instance, take this law review article from 1991:
Finally, in order to prove that racism motivated the accused's particular conduct, the prosecutor will often need to pinpoint when the racist motive was formed. In any number of cases, racism could have played little if any role in the beginnings of an altercation but have been injected into an argument later when tempers flared. Testimony by the accused that he or she used a racial epithet in anger or that motivation other than racism caused the altercation would require the prosecution to pinpoint when the accused's racist motive was formed. Proving the exact point at which an individual's motive became racist, however, is an impossible task given the nature of motive. The question arises[,] at which point does the presence of racial motivation trigger the conclusion that the accused acted "because of" those motives rather than others[?]
A few years later, Illinois got considerable clarity on that issue in the 1996 case People v. Davis. The defendant "had five beers in less than an hour, had just been expelled from the bar after a 'problem' with a female patron, and claims to have believed that Whitlow [the victim] and Henry were laughing at him." The defendant, who is white, punched and kicked Whitlow, who is black, knocking him unconscious, after calling him the n-word.
Hate crime or stupid bar fight? Why not both? the circuit court decided.
Finally, neither Whitlow nor Henry told the responding officer that the attack was racially motivated. This case may be, as defendant suggests, an aggravated battery that is transformed into a hate crime by reason of the spoken word "n—-r." While we do not suggest that premeditation is a requirement under the hate crime statute, we observe that these facts present a liberal application of its terms.
[E]ven assuming that defendant's decision to initially confront Whitlow and Henry was based on his perception that the two were mocking him, defendant directed his words and assault at Whitlow, an African-American, rather than his white companion. Viewing this evidence in the light that most favors the prosecution, we cannot say that defendant did not assault Whitlow "by reason of his race." Accordingly, defendant's conviction for hate crime is affirmed.
The state broadened its hate-crime statute a few years later with a subtle but important change, the addition of the phrase "regardless of the existence of any other motivating factor or factors," which took effect at the beginning of 2003. In its report Hate Crimes in Chicago: 2002, the Chicago Police Department laid out the reasoning: "the statute now specifically provides that the existence of other motives is immaterial."
And then there's the fact that the victim is reportedly mentally disabled, something that, as David Perry writes, has largely and unfortunately been lost in the racial aspect, given the frequency with which the disabled are victims of crime.
But the police considered that as part of investigating the incident as a hate crime, and it could play a role in legal proceedings. A criminal doesn't have to hate someone to be convicted of a hate crime; if the victim's race, gender, disability, is a reason they were victimized, it can be prosecuted as a hate crime:
Although the law is called the “Hate Crime Act,” the plaintiff does not need to prove that the defendant actually hates all members of the group targeted, or even the actual victim, only that the defendant committed the crime by reason of that protected class. For example, if a person robs an Asian American because he believes that Asian Americans in that community carry more money, it could constitute a theft motivated by national origin. The same would be true of an attack on a gay man by a defendant who believes that being gay makes that person more vulnerable to attack.
Likewise, if it can be proven that the victim in the Facebook torture video was chosen because of his disability—even if it's just because it made him seem more vulnerable to his attackers—it's another direction in which a prosecution on hate-crime charges could follow.
As Kim Janssen reported today, whether or not the events depicted in the video would be charged as a hate crime quickly became a flashpoint, with accusations that hate-crime charges were slow to come and due only to online outrage. In truth, hate-crime laws are complex and (sometimes intentionally) difficult to use, and that the charges are plausible at all is due to legal foundations laid in the city and state years ago.