pageok
pageok
pageok
Expand the federal "hate crime" law?

In Greeley, Colorado, a trial will begin this week for Allen Andrade, who is accused of murdering Angie Zapata. Zapata (former first name "Justin") was a female transgender person. It appears that Zapata tricked Andrade into a sexual relationship. Andrade was led to believe that Zapata was a female in the conventional sense of the term; when he found out otherwise, he flew into a rage and beat Zapata to death.

Colorado law for sexual assault states that there is no "consent" if the consent "is induced by force, duress, or deception." Accordingly, Zapata may have perpetrated the crime of "unlawful sexual contact", which is a Class 1 misdemeanor and is subject to enhanced sentencing as an "extraordinary risk crime."

As detailed in an article in the Greeley Tribune, GLBT activsts are hoping to use the Andrade prosecution as a springboard for enactment of a federal hate crime law for sexual orientation, the Local Law Enforcement Hate Crimes Prevention Act. The Greeley Tribune accurately quotes my views that hate crime laws in general are a bad idea, and that therefore expanding the laws is bad idea, regardless of arguments made about whether some particular group should or should not be included. That view is set forth in this 2003 Issue Paper.

However, if I were a lobbyist who supported the federal proposal, I would be wary about making Zapata into the face of a lobbying campaign. Matthew Shepard was entirely innocent, and was, accordingly, a sympathetic person around whom to build a campaign. In contrast, Zapata was (on what appears to be an uncontested version of the facts, although the trial might reveal otherwise) criminal whose death resulted from unjustifiable retilation by the victim. Of course Zapata did not deserve to die, but people who perpetrate sex crimes by deception are not particularly sympathetic characters.

UPDATE: Some commenters were interested in the question of whether the linked section of Colorado law is applicable to the definition of "consent" for sex crimes. It is. See People v. Holwuttle (Colo. App. 1986). There is an additional set of definitions in Colorado law for sex crimes. In relevant part, it states, "'Consent means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act." The Holwuttle approves of blending these two definitions into a single jury instruction. If we hypothesized that only the second definition applied, I do not think it changes the legal analysis. As applied to sex, "the nature of the act" certainly includes the sex of person with whom one is performing the act; maybe some bisexuals would be indifferent as to the other person's sex, but I think that the vast majority of people would consider a person's particular sex to a sine qua non for their consent to a sexual act with that person.

Malvolio:
It appears that Andrade tricked Zapata into a sexual relationship.
Perhaps Zapata tricked Andrade? That would seems more plausible.

Zapata was criminal whose death resulted from unjustifiable retilation by the victim. Of course Zapata did not deserve to die
Mmmm, pretty close. Killing the perpetrator to prevent a sexual assault is universally considered justified; killing him in revenge is legally problematic, but a jury might very well acquit.


[DK: I had just transposed the names. Thanks for catching that. I fixed the text.]
4.13.2009 1:29pm
Whadonna More:
Calling the deceased "[sic] criminal" without a trial is both unfair and incorrect. Zapata might have been found guilty of the crime, but that's no more certain than it would be for a man who deceives a victim by falsely saying he'll respect her in the morning.

Hate crime laws are stupid in any event.
4.13.2009 1:30pm
hattio1:
Well,
Was she convicted? Then she wasn't a criminal. I agree that the facts look like they might fit the statutory definition. But, I think a prosecutor would have a tough time proving the charge (presuming she were still alive). More importantly, while she might not be an entirely sympathetic figure, I don't think most people would think about what she was doing as a sex crime. For example, if you lie to someone and tell them you love them in order to get them to sleep with you, is that really a crime? And, of course, there's the whole question of whether she did lie. Allowing someone to believe their assumptions without correcting them is not necessarily deception.
4.13.2009 1:31pm
ThreeOneFive (mail):
What is the authority of the federal government to punish hate crimes? Commerce clause?
4.13.2009 1:39pm
EricPWJohnson (mail):
Well, one of the reactions of male rape victims - which the defendant might be considered - is a momentary rage and loss of control.

The timing, the size differential, the number of blows the actual cause of death

All these must be considered first.

Taking this to trial, is a iffy iffy thing - this is not Harvey Milk this was passive rape of a straight individual
4.13.2009 1:40pm
Guest poster (mail):
Let's change the hypo a bit. Imagine Zapata promised Andrade to marry her and they slept together. Then, Zapata admitted to Andrade that she wasn't telling the truth about marriage and she just wanted to hook up. Andrade then murdered Zapata. Would you say that Zapata is "not sympathetic" because she induced the relationship by "deception" and is therefore a "criminal"? No way.

By the way, I rather doubt that Zapata's behavior in that hypo - or in the actual case - would fall within the Colorado statute, even though it is technically "deceptive." Courts have construed "sex via deception" statutes quite narrowly so as not to encompass all situations where someone tells a lie to get someone else into bed.
4.13.2009 1:41pm
DennisN (mail):
Why do we need another hate crime law? Isn't killing someone bad enough? Does it make the killing worse because the perp was committing a thought crime at the time? Is this somehow worse than killing someone because in some sick way you love them? Do we need Love Crime legislation?

I agree Whadonna, hate crime legislation is just stupid.
4.13.2009 1:43pm
Steve:
It's interesting that Zapata is somehow transformed from a person who "may have perpetrated a crime" in the second paragraph into a "criminal" with a "victim" in the fourth paragraph. Yet I don't see any evidence of guilt introduced in between those two paragraphs.

It's not a trivial point. The definition of "obtaining consent via deception" is extraordinarily problematic. If I deceive someone as to my identity in order to seduce them - for example, if I pretend to be my identical twin brother in order to have sex with his girlfriend - that strikes me as a pretty clear case. But what about more "everyday" examples of deception? Let's say I falsely inform a woman that I am a wealthy doctor for the purpose of seducing her, or let's say I falsely advise her that I am interested in more than just a one-night stand. Have I really committed a crime? I wouldn't think this sort of "deception" would be sufficient to justify criminal liability.

Lying about one's gender is surely more significant than lying about one's occupation, but is it clear on which side of the line it falls? Could there even be mens rea if Zapata honestly considered himself/herself to be female? I think it would be pretty hard to pin a criminal prosecution on an allegation that Zapata failed to volunteer, "By the way, I'm a woman, but not a woman in the conventional sense of woman."
4.13.2009 1:44pm
einhverfr (mail) (www):
I like Guest Poster's reasoning.

It seems to me that one of the issues involving "consent" and "deception" is that any number of white lies can lead to a rape charge. A wife says to her husband "If we have sex tonight, can I sleep in tomorrow" and the husband says "sure" does that make it rape if he doesn't take care of everything and she has to get up early?

Really I think that deception must relate to the act itself. For example, there was a case in the UK a while ago where a doctor told a bunch of women that the only way to apply a certain medicine was for him to have sex with them. That is deception to the point of undermining consent. The husband in my hypothetical might be undermining his marriage but I would hesitate to suggest it is criminal.
4.13.2009 1:46pm
Poor old dirt farmer:
I've never understood "hate crimes". Is it "more wrong" for me to kill a black person than a white person? In my mind, no. Is it "more wrong" for me to kill a gay guy than a straight guy? Again, in my mind, no.

If someone commits a crime (any crime) just punish that person for the crime and don't try to weigh whether the victim was different in some way from the attacker. What if a straight guy attacks and kills a gay guy without knowing he was gay? What if he knows he is gay but doesn't hate gay people. There is no way those examples can be a "hate crime" but you know that allegation will come up simply because the attacker and victim were different.

I know many people will not share my view on this but I don't really care if the attacker knows the victim is gay/black/whatever and that is the reason he attacked them. If you murder someone you face murder charges not murder of someone who is different from you charges. I don't care why you did it I just care that you did it. Just my opinion.
4.13.2009 1:49pm
Per Son:
There are so many unknowns here.

In another article (from The Denver Post) I found this:

"According to the murderer's confession, while he rifled through her belongings, he realized she wasn't quite dead, and returned and continued to beat her with the fire extinguisher. Angie was discovered by two of her sisters."

...

"The murderer has indicated that his sole motivation to murder Angie was that she was a transgender woman. In fact, since being in jail, the murderer has been quoted saying, "all gay things need to die.""
4.13.2009 1:56pm
dlduncan2:

Zapata was criminal whose death resulted from unjustifiable [retaliation] by the victim. Of course Zapata did not deserve to die, but people who perpetrate sex crimes by deception are not particularly sympathetic characters.

I'm not in favor of hate crimes legislation, but that is an abhorent and twisted way of looking at this case.

Under Mr. Kopel's theory of "unlawful sexual conduct" any man or woman who misrepresented their age, weight, income or marital status on an on-line dating site and went on to have sexual contact with someone they met from that site without correcting the misrepresentation would be guilty of exactly the same "crime" as Zapata. I think Colorado would be overrun with sex crime prepetrators under this understanding of the statute.

I somehow doubt Mr. Kopel would blame the victim so readily if this case involved a disappointed woman shooting a man in cold blood when she realized he was married rather than single as he claimed on Match.com.

Really, this is about as relevant as asking whether Zapata violated the speed limit the same day she she was brutally beaten to death by Andrade with a fire extinguisher.
4.13.2009 1:58pm
Monty:
Dirt Farmer -

The idea of a hate crime is not that you are being punished because of the class characteristic of your victim, but because that class characteristic is what motivated your crime. Its the difference between assaulted a person to rob them, and assaulting them for no other reason (or primarly) because of thier race. (or other protected characteristic)

I would question whether the criminal justice system can really know why you committed a crime, but thats another part of the aurgument.
4.13.2009 2:00pm
Ken Arromdee:
Could there even be mens rea if Zapata honestly considered himself/herself to be female?

The deception isn't telling another person "I am female", the deception is telling another person "I am female by your standards".
4.13.2009 2:00pm
Per Son:
I am not a fan of hate crime legislation, but all sorts of laws make differences depending on what motivated the act.

We have standards such as reckless, willful, negligent and what not. We consider reckless worse than negligent. We consider pre-planned murder different than heat of the moment. Hate crime is simply a legislated concept of enhancing penalties for particular motivations. Thus, murdering someone because of their race gets a stiffer penalty than murdering somebody because they gave a snickering snear.

The whole concept of mens rea is about what goes on in a person's mind.
4.13.2009 2:02pm
Hans Bader (mail) (www):
Another problem with the federal hate crimes bill is that it is designed to take advantage of a loophole in constitutional protections against double jeopardy.

For example, Attorney General Eric Holder, a booster of the hate-crimes bill, has advocated hate-crimes it as a means of prosecuting people whom state prosecutors refuse to prosecute citing a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

Advocates of a broad federal hate-crimes law have pointed to the Duke Lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were ACTUALLY INNOCENT, as North Carolina's attorney general conceded, and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations. Supporters of federal hate-crimes legislation like Janet Reno view it as a way of getting around constitutional protections against double jeopardy, by allowing reprosecution in federal court of people who have already been found innocent in state court. Civil libertarians like Wendy Kaminer have criticized it for taking advantage of a loophole in constitutional double-jeopardy protections.

I wrote earlier about how the federal hate-crimes bill backed by Obama and Congressional leaders would violate constitutional federalism safeguards, and how it would allow people found innocent in state court to be retried in federal court. Supporters of the hate-crimes bill have all sorts of rationalizations for disregarding not-guilty verdicts. Hate-crimes activist Brian Levin, who testified before Congress, claims reprosecutions are needed because local jury pools are biased. NOW Legal Defense Fund told Congress that reprosecutions are appropriate if local prosecutors had "inadequate resources" or were of "questionable effectiveness."

Given the politically-charged nature of many hate-crimes trials, Kimberly Potter of New York University was probably right when she told Congress back in 1998 that if the federal hate crimes bill is enacted, "the acquittal of [hate-crimes] defendants in state court will frequently trigger demands for federal prosecution."

The defendants in the Duke lacrosse case, charged with an interracial rape, were vindicated by DNA evidence. But their detractors, such as former John Edwards staffer Amanda Marcotte (who has repeatedly smeared critics of the federal hate crimes bill as being bigots) and radical activist Alton Maddox (who was involved in the Tawana Brawley hate-crime hoax), continue to insist that they were guilty of hate crimes, and that more hate-crimes laws are needed.

For some people, it seems, hate crimes are so terrible that not even innocence should be a defense. Such people eagerly await passage of the federal hate-crimes bill.
4.13.2009 2:03pm
Hans Bader (mail) (www):
Another problem with the federal hate crimes bill is that it is designed to take advantage of a loophole in constitutional protections against double jeopardy.

For example, Attorney General Eric Holder, a booster of the federal hate-crimes bill, has advocated it as a means of prosecuting people whom state prosecutors refuse to prosecute citing a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

Advocates of a broad federal hate-crimes law have pointed to the Duke Lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players — even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina's attorney general conceded, and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations. Supporters of federal hate-crimes legislation like Janet Reno view it as a way of getting around constitutional protections against double jeopardy, by allowing reprosecution in federal court of people who have already been found innocent in state court. Civil libertarians like Wendy Kaminer have criticized it for taking advantage of a loophole in constitutional double-jeopardy protections.

I wrote earlier about how the federal hate-crimes bill backed by Obama and Congressional leaders would violate constitutional federalism safeguards, and how it would allow people found innocent in state court to be retried in federal court. Supporters of the hate-crimes bill have all sorts of rationalizations for disregarding not-guilty verdicts. Hate-crimes activist Brian Levin, who testified before Congress, claims reprosecutions are needed because local jury pools are biased. NOW Legal Defense Fund told Congress that reprosecutions are appropriate if local prosecutors had "inadequate resources" or were of "questionable effectiveness."

Given the politically-charged nature of many hate-crimes trials, Kimberly Potter of New York University was probably right when she told Congress back in 1998 that if the federal hate crimes bill is enacted, "the acquittal of [hate-crimes] defendants in state court will frequently trigger demands for federal prosecution."

The defendants in the Duke lacrosse case, charged with an interracial rape, were vindicated by DNA evidence. But their detractors, such as former John Edwards staffer Amanda Marcotte (who has repeatedly smeared critics of the federal hate crimes bill as being bigots) and radical activist Alton Maddox (who was involved in the Tawana Brawley hate-crime hoax), continue to insist that they were guilty of hate crimes, and that more hate-crimes laws are needed.

For some people, it seems, hate crimes are so terrible that not even innocence should be a defense. Such people eagerly await passage of the federal hate-crimes bill.
4.13.2009 2:04pm
DangerMouse:
Is it "more wrong" for me to kill a black person than a white person? In my mind, no. Is it "more wrong" for me to kill a gay guy than a straight guy? Again, in my mind, no.

Yes, according to libs, it IS more wrong to kill a minority than a white person. It IS more wrong to kill a homosexual than a straight person.

Liberalism, with its roots in marxism, breaks people into classes. And those classes include races, sex, etc. In a way, the breaking of individuals into classes means that racial classification is inherent to liberalism. When viewed through a deconstructive "who's oppressing who" lens, hate crime laws are all about remedying the perceived power structure by forcing the law to treat as more wrong the murder of a minority by a majority-member, instead of treating it as a mere murder.

This is why there's the oft-reported fake hate crimes incident. The entire purpose of hate crimes law is to remedy perceived power injustices. But when the remedy isn't quick enough (ie: no hate crimes are occurring), the activists sometimes take the situation into their own hands and create fake hate crimes.
4.13.2009 2:06pm
matthewccr (mail):
I don't mean this to be ad hominem or off-topic (this post if my strongest reasons for this request yet), but I would like to reiterate a request for the Select a Blogger "exclude" feature to have RSS support. Every day there are very worthwhile posts on this site that I benefit greatly from and I wouldn't want to miss. But at the same time, there are a very few number of contributors for whom I feel very differently. This is already a feature for the website generally; I think a lot of people would greatly appreciate it as part of the RSS as well.
4.13.2009 2:06pm
donaldk2 (mail):
Hate crime legislation serves its proponents as a badge of their extraordinary virtue.

Society is infested with examples of this tendency: the contemporary wealth of euphemisms offered for such phrases as "war on terror", "illegal alien"; multiculty and instances of political correctness in general.
4.13.2009 2:08pm
einhverfr (mail) (www):
Although I oppose hate crime legislation in general, this seems to me very dangerous:

The deception isn't telling another person "I am female", the deception is telling another person "I am female by your standards".

The devil himself knows not the mind of man. There is NO WAY of knowing what someone else's definitions are with enough precision to make such a line work.

Does anyone know what case law regarding "deception" in this context states? If someone lies about his/her age in order to begin a relationship and doesn't disclose the lie, does that make it deception? If a Muslim woman lies about being a virgin until after marriage does that make her guilty of rape?
4.13.2009 2:09pm
Per Son:
Dangermouse - liberalism finds its origins in the European Enlightenment.

Also, where does anyone say that killing a black person because that person is black is worse than killing a white person because that person is white?


In other words, we are only talking about instances where the race was the reason for the murder - the only area that hate crimes (which I am not a fan of the legislation) would cover.

Where?
4.13.2009 2:10pm
David Drake:
From this quote, it appears that the purpose of these laws is horatory:


"You need to think about the special nature of hate violence," said Allyson Robinson, associate director of diversity with the Human Rights Campaign in Washington, which is supporting the federal legislation. "It's not just targeted at an individual, it's meant to send a message beyond the victim. ... 'You're not welcome here. I do not validate your right to exist.' These laws counter that by saying, 'Yes, we do value every member of this community, particularly those who are especially vulnerable or targeted by the kind of violence."


In other words, what's wrong in the opinion of the Human Rights Campaign spokesperson is not the violence, but that the murderer allegedly intends to "send a message" and the reason for legislation is to "send a message" back.

Leave aside the obvious: that any murderer sends the message that he or she "does not value" the victim's "right to exist," regardless of race, religion, national origin, gender or sexual preference. If this is the purpose of "hate crimes" legislation, then "hate crimes" statutes are aimed directly at suppressing view-point based expression and should be struck down under the First Amendment.
4.13.2009 2:18pm
Steve:
The deception isn't telling another person "I am female", the deception is telling another person "I am female by your standards".

But I very much doubt that Zapata ever made the latter statement - or even the former. The suggestion is that Zapata would be guilty of a crime simply for failing to volunteer, "I'm not female by what I assume to be your standards."

I don't think the intent of "sexual assault by deception" statutes is to make the sexual assault laws into something like the securities laws where you have an affirmative duty to disclose all material facts, etc.
4.13.2009 2:21pm
Scape:
Totally echoing matthewccr here.

Ugh. I can't believe this post even exists. Accusing a murder victim who was brutally beaten to death of sexual assault because she didn't tell every single fact about her life history?

I can't engage with that. I just want to never see it again.
4.13.2009 2:21pm
1Ler:
Most of the posters on here obviously haven't had a crim law class any time lately... we were bombarded with examples of rape stemming from mis-truths and lies milder than the one in question. These don't have a real high chance of leading to a prosecution, but I remember several fear-of-God examples.
4.13.2009 2:21pm
Per Son:
David Drake:

You will run into some trouble. In Wisconsin v. Mitchell, the Supreme Court unanimously upheld a Wisconsin statute which provides for an enhanced sentence where the defendant "intentionally selects the person against whom the crime [is committed] because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person." The defendant in Mitchell had incited a group of young Black men who had just finished watching the movie "Mississippi Burning" to assault a young white man by asking, "Do you all feel hyped up to move on some white people," and by calling out, "You all want to f*&k somebody up? There goes a white boy; go get him."
4.13.2009 2:22pm
Blue:

Under Mr. Kopel's theory of "unlawful sexual conduct" any man or woman who misrepresented their age, weight, income or marital status on an on-line dating site and went on to have sexual contact with someone they met from that site without correcting the misrepresentation would be guilty of exactly the same "crime" as Zapata.


Postmodern rot. Misrepresenting your biological gender in a dating/relationship situation is fundamentally different that trivia such as age, height, and weight.
4.13.2009 2:23pm
Tony Tutins (mail):
Sounds like the Gwen Araujo case, where four men who had had oral and anal sex with a transgendered teen beat her to death when they discovered her male genitalia.
4.13.2009 2:24pm
Don Miller (mail) (www):
My problem with hate crimes legislation is that it borders too closely to Government censorship for me.

Motive has always been a factor in prosecution and sentencing. I have no problem with racism, sexism being considered for motive/increased punishment reasons. The motive is part of the act and is fair game in prosecution and sentencing. Laws that give Prosecutors and Judges latitude to include motive as a sentencing enhancement are appropriate.

However, to make a persons thoughts and statements a separate crime above and beyond the actual act is a potential infringement on the 1st Amendment. We have the right to say and believe what we want in this country. If your thoughts and statements are turned into actions that result in a crime, the crime is the action, not the thoughts and statements.
4.13.2009 2:27pm
einhverfr (mail) (www):
More thoughts in hate crime legislation generally (and what hate crime legislation I would support).

The general problem with hate crime legislation is that it suggests that one motive (dislike of a group) is more important than another motive (say, money). If you murder your wife due to inheritance politics, why is that less bad than killing someone on account of his/her being Jewish with no other attempt to advertise such a motive? Crime is crime and only where it poses specific problems relating to further danger or damage to society should additional factors increase sentences.

I would like to see some extremely reasonable hate-crime legislation enacted but such legislation would bear no real resemblance to what we have now. Instead one can think of it as "domestic terrorism legislation." I would like to see added penalties to a law where both of the following conditions exist:

1) An individual is singled out due to affiliation with a formal or informal social classification.

2) The crime is perpetrated in such a way as to intentionally send an intimidating message to members of this classification.

In short, what should be punished is an attempt to intimidate or terrorize a group through crime, not merely a question of motivation. In short the question shouldn't be "why did you?" but "What did you seek to accomplish?" Examples of things I think should be punished as hate crimes:

1) Crimes advertised in advance targeting a distinct group of people.
2) If the KKK burns a cross on the lawn of a house owned by a black family, yes, that should be additionally punished as a hate crime.
3) We might look into the past and see the role that public lynchings had on attempting to intimidate the black population for a key example.
4.13.2009 2:29pm
ruuffles (mail) (www):

Misrepresenting your biological gender in a dating/relationship situation is fundamentally different that trivia such as age, height, and weight.

I'm not sure that criteria is so trivial when you're on the lower end of the scale. Have courts dismissed statutory rape when the girl lies about her age?
4.13.2009 2:29pm
KeithK (mail):
The fact that Zapata was never convicted of a crime might not matter in terms of public opinion. If the facts point to the individual having committed a crime (or can be painted that way) then that individual is a criminal for the purposes of a lobbying campaign.

Whether you think the facts are convincing (to you or the man on the street) is a different matter.
4.13.2009 2:30pm
william (mail):
I'm against hate crimes laws because they essentially punish thoughts rather than actions and ask juries/judges to engage in mind-reading. I have the same problem with suggesting that Zapata engaged in rape by deception. For that to be true you have to either a) somehow discover what gender a dead victim identified as or b) expect individuals truthfully reveal all personal details which might be salient to a sexual parter prior to any sexual activity. In the first case you're asking judges and juries to read the minds of a dead person, in the second case you're asking everyone to read the minds of their potential partners.

Oh, and Dangermouse, liberalism has it's roots in classical liberalism, which has virtually nothing to do with Marxism. If you're going to take pot shots at the left wing at least bother to use your terms correctly instead of trying to figure out what Rush or Sean might say.
4.13.2009 2:35pm
BerkeleyBeetle:
As Tony Tutins notes, this story is very similar to the Gwen Araujo story. The hate crime charges failed because the murder was seen as a reaction to the situation (finding out that she was transgendered), rather than because of her identity. The DA took the position that some of her actions "were impossible to defend" and so focused the case away from issues of transgendered people, apparently taking the same view that Kopel does, that the jury wouldn't react well to the "deception."
4.13.2009 2:35pm
another anonVCfan:
@DennisN, @Poor old dirt farmer:

As a libertarian who doesn't really know anything about hate-crime law, I find the "isn't killing a white person as bad as killing a black person" argument totally unpersuasive. The statement assumes that retribution is the only valid purpose for criminal punishment. But most people, including many conservatives, accept many other justifications for criminal punishment, and one of those is the isolation of dangerous people from the rest of society.

Suppose it were empirically verifiable that people who attack other people on the basis of race, gender, or sexual orientation have higher rates of recidivism than people who commit identical crimes for reasons unrelated to the victim's identity. If that were true, and one of the goals of criminal sentencing is to protect society from dangerous people, then it might very well make sense to give longer sentences for "hate crimes" than for similar "non-hate crimes."

I don't know if this recidivism supposition is true, but it's certainly testable. If it turns out to be true, I'd be curious to hear how opponents of hate-crime law (those who also believe in the isolation function of criminal sentencing) would defend their position.
4.13.2009 2:36pm
My Middle Name Is Ralph:
Kopel, is it too much trouble to include a link to the underlying facts?
4.13.2009 2:38pm
Lior:
Per Son: could these opinions of Mr. Andrade be a result of his experience rather than the cause of it?

To me, a more interesting question is the following: In layman's terms (IANAL) I believe the severity of the offence committed would depend on whether Andrade was "provoked". Should "provocation" ever be an excuse for physically harming another person?
4.13.2009 2:39pm
Richard Aubrey (mail):
Miranda wasn't all that savory, either. At one of his many trials, the judge later noted, the question of his guilt never arose--presumably it was the old "sure he's guilty but look how you found out" defense that was the issue.
And we have a doctrine based on the case(s) stemming from his crime. It happened because, as with Tookie Williams and Mumia, the victims simply disappeared down society's memory hole, with substantial help from the activists and journos. As it happens, with perps dear to the left, the vics disappear quite routinely.
So this could work.
4.13.2009 2:45pm
Per Son:
Lior:

To your first question - absolutely. Personally, I do not know if he even made those comments beyond "reportedly" making them.

Provocation will probably play into the defense. The trouble is the fact that after he calmed down to rifle through her wallet, she sat up and then he killed her. In other words - he appears to not have simply went beserk and calmed down. Instead, he went beserk and calmed down, then murdered Angie when he realized she was not dead after all.
4.13.2009 2:46pm
Joe T Guest:
So if Zapata is utterly innocent, would we be as forgiving of a straight male who cross-dressed and posed as a woman in order to have sexual relations with a lesbian, then sprung a little penetrating surprise on her?

I'm not so sure we would be.
4.13.2009 2:49pm
trad and anon (mail):
I agree with the criticisms of Kopel's point. It's far from certain that Zapata violated the statute. Not every lie people tell to get sex is a crime, and most of them are not. I don't know anything about this statute in particular but these statutes are (rightly) construed narrowly so as not to ban every false "I love you" and "Yes, I care about you as a person." We're looking for things like pretending to be someone else or maybe lying about your HIV status. Perhaps misrepresenting your biological sex would be considered to violate the Colorado statute but it's not an open-and-shut case.

And even if biological sex misrepresentation can be criminal in Colorado there are other questions about whether these specific facts fit the appropriate standard. What did Zapata even do to "deceive" Andrade? Did she actually claim to be a biological woman, or did she just fail to disclose that she was transgender? Even if a direct lie would be a violation of the statute nondisclosure very well might not be. Not telling someone you have HIV isn't the same thing as lying about it. And, as Steve asks, did Zapata even have the appropriate mens rea if she sincerely considered herself to be a woman (which she almost certainly did)?

I'd also add that to the extent Zapata is perceived as an unsympathetic figure because of her acts I don't think the public's reaction will be significantly affected by whether or not her acts constituted a misdemeanor. The public reaction is likely to depend on what most Americans think of transgendered women misrepresenting their biological sex to potential partners. I think that's likely to be viewed quite harshly but that's because people view biological sex as very important (especially in the domain of actual sex!) and being transgender is highly stigmatized. If a man finds out his wife is cheating on him and beats her to death, how much is the public reaction going to depend on whether or not adultery is a criminal offense in that state? My guess is "not at all."

Kopel is jumping to a lot of conclusions here.
4.13.2009 2:52pm
DangerMouse:
Oh, and Dangermouse, liberalism has it's roots in classical liberalism, which has virtually nothing to do with Marxism. If you're going to take pot shots at the left wing at least bother to use your terms correctly instead of trying to figure out what Rush or Sean might say.

Libs view people not as individuals but as members of a class. Classical liberalism starts off with an individualist view. It is entirely correct to say that modern liberalism has more of its roots in marxism than in classical liberalism. Ask Saul Alinsky.

The entire reason for hate crimes law is because of the obsession libs have with classifications of people into groups.
4.13.2009 2:52pm
My Middle Name Is Ralph:

I've never understood "hate crimes". Is it "more wrong" for me to kill a black person than a white person? In my mind, no. Is it "more wrong" for me to kill a gay guy than a straight guy? Again, in my mind, no.



You misunderstand what hate crimes are. Killing a black person or a gay guy does not a hate crime make. Killing a black person or a gay guy because he's a black guy or a gay person is a hate crime. Such crimes are, IMHO, worse than non-hate crimes because create fear among the victim's group and lead to increased tensions among different groups in society. In a strictly utilitarian sense, hate crimes create much greater negative utility than non-hate crimes.
4.13.2009 2:54pm
Putting Two and Two...:
Natonal hate crime legislation provides two important functions:

1) It requires statistics to be kept.

2) It allows federal authorities to pressure or step in when local authorities do not care to prosecute.

And for those who do not understand how a hate crime is different. Consider gas station robberies. They're remarkably common. Then remember the sniper shootings in the DC suburbs a few years ago.
4.13.2009 2:54pm
einhverfr (mail) (www):
Joe T Guest:

Where and when does consent occur? Where and when can consent be withdrawn? What is the relationship between the consent and the deception?

In your case, I am not sure there would be consent since it is undisputed that there are no problems withdrawing consent between disrobing and engaging in sexual intercourse. The idea that consent can be withdrawn even during sexual intercourse is also established at least in some jurisdictions.

So what would be the crime in your case? If she said no after he undressed, that would be rape plain and simple. At any rate, by the time sexual relations occurred, the deception would be sufficiently undermined.

So I think the crossdressing in your hypothetical would be entirely irrelevant and the case would still turn normally on consent given.
4.13.2009 2:57pm
Houston Lawyer:
I thought the notion that Matthew Shepherd was the victim of a "hate crime" had been pretty well debunked. From what I understand, he was just in the wrong place at the wrong time. His killers were looking to victimize someone and they came across him first. While Mr. Shepherd was the innocent victim of a crime, it wasn't the crime his death made famous.

In this case, leading someone on about your sexual identity is grounds for a beating if things go too far.
4.13.2009 2:58pm
ohwilleke:
The hate crime element of this prosecution isn't very important to the available sentence -- given that the defendant's involvement in a homicide appears to largely admitted and supported by physical evidence and a not fully suppressed confession. Hate crime counts carry a sentence far suborinate to the primary crimes of homicide and theft in this case in Colorado.

Instead, the hate crimes count serve to broaden the evidence and testimony that may be relevant (and to take a public stance of the defendant's motives). Scope of evidence will be important, both for the prosecution and the defense (given its theory of the case, which is that the defendant would be in peril from his life from his gang if this incident was discovered) since part of the defendant's custodial confession was suppressed in preliminary hearings.

The defense will want to argue that the offense should be a lower grade homicide, with a "heat of passion"/deception defense (two classes of felony below Murder One). The hate crime issue may also impact whether the "heat of passion" basis is entitled to legal consideration.

The prosecution's strongest card is a little publicized fact -- that the defendant after killing Zapata, stole Zapata's car and wallet. Thus, the prosecution will argue that this is a felony-murder case (with a LWOP sentence) to which the heat of passion offense grading consideration does not apply.
4.13.2009 3:00pm
10ksnooker (mail):
Laymen speaking -- It's perplexing what 'hate crime laws' are supposed to do. When the crime is murder, isn't that already enough "against the law" to satisfy most requirements? Wouldn't just punishment for that be sufficient.?

I just fail to see the need to make something really really against the law. Say -- armed robbery is against the law, regardless of races involved.

Secondly, isn't what is in a persons mind properly left to fantasy-land thought police, and kept out of the a fact finding courtroom?
4.13.2009 3:00pm
Per Son:
Joe T Guest:

Your situation is quite different, as it is quite clear that Ms. Zapate lived (outwardly) as a straight female, and identified as a female.

Your hypo suggests a man dressed up solely to have sex with a lesbian. So they do differ.
4.13.2009 3:03pm
trad and anon (mail):
I don't think the intent of "sexual assault by deception" statutes is to make the sexual assault laws into something like the securities laws where you have an affirmative duty to disclose all material facts, etc.
I'll say! That's why I think that even if biological sex misrepresentation constitutes a violation, it's far from obvious that biological sex nondisclosure would.
Most of the posters on here obviously haven't had a crim law class any time lately... we were bombarded with examples of rape stemming from mis-truths and lies milder than the one in question. These don't have a real high chance of leading to a prosecution, but I remember several fear-of-God examples.
Maybe your crim class was like that but mine sure wasn't.
So if Zapata is utterly innocent, would we be as forgiving of a straight male who cross-dressed and posed as a woman in order to have sexual relations with a lesbian, then sprung a little penetrating surprise on her?
"Utterly innocent"? I wouldn't describe Zapata that way, no. But if your hypothetical lesbian then beat this guy to death when his pants came down instead of screaming something like "you fucking asshole, get out now or I am calling the police" I would be appalled. I wouldn't be remotely upset if she responded by kicking him in the balls but beating him to death would be completely unjustifiable unless he had actually penetrated her, in which case we're talking about actual rape.
4.13.2009 3:10pm
einhverfr (mail) (www):
Per Son:

Your hypo suggests a man dressed up solely to have sex with a lesbian. So they do differ.


Even so, wouldn't normal questions of consent apply? I mean, if she decided to go ahead and have sex with him anyway because he was cross-dressing even after she saw him naked, there isn't much deception going on there, right?

If she said no after seeing him naked and he raped her, the cross-dressing would be irrelevant.

Either way, I am having trouble understanding why cross-dressing would be relevant to consent.
4.13.2009 3:19pm
trad and anon (mail):
Postmodern rot. Misrepresenting your biological gender in a dating/relationship situation is fundamentally different that trivia such as age, height, and weight.


I'm sure calling the defense's position "postmodern rot" will get you a long way at oral argument. I don't think the legal question is remotely that obvious.

I agree that misrepresenting your biological sex to a sex partner is a Big Deal, but not everything that's a Big Deal is a crime. I think saying "I love you" when you don't care about the person and just want sex is a Big Deal too, but it would not (and should not) be cognizable violation of the deception statute.
4.13.2009 3:21pm
Putting Two and Two...:

Nevertheless, some advocacy groups continue to
exaggerate the extent of hate crimes. For example,
the Southern Poverty Law Center (a direct mail
fundraising group which does not actually engage
in poverty law) claimed that in 1996, twenty-one
people were murdered because they were homosexual.
The FBI, though, said that the actual number
was two.1 Similarly, Kerry Lobel, executive director
of the National Gay and Lesbian Task Force, alleges
that there is "a national emergency'' of hate crimes.2
To the contrary, today's America is far more racially
tolerant, and far more accepting of homosexuality,
than was any previous generation of Americans.


That's from Kopel's "report". I stopped there. Surely an "expert" on this field knows that the FBI only tracked anti-gay hate crimes in a handful of states in 1996 and still does not track them nationally.

Sins of omission, sins of omission.

I truly do not understand this sort of mis/dis/non-information. Was it too difficult to find the list of 21? Did he even try?

If you feel the need to debunk, then DEBUNK!
4.13.2009 3:23pm
My Middle Name Is Ralph:

Secondly, isn't what is in a persons mind properly left to fantasy-land thought police, and kept out of the a fact finding courtroom?


Absolutely not. Juries are asked to make decisions about someone's motives (i.e. their thoughts) all the time, in both criminal and civil cases. Consider every case of perjury. It's not a crime to misstate the truth under oath; one must be lying. It's up to a jury to decide.
4.13.2009 3:24pm
Bored Lawyer:
The Supreme Court upheld hate crime legislation in an opinion written by then Chief Justice Rehnquist joined in by a unanimous Court, Wisconsin v. Mitchell (1993), including Scalia and Thomas as well as the other members of the Court.

Contrary to what has been suggested here, hate crimes are not limited to violence against racial (or other types of) minorities. In fact, the defendant in Mitchell was a black youth who, with a group of other black youths, randomly assaulted and robbed a white victim after watching the movie "Mississippi Burning." The racial motivation allowed an enhanced sentence (for aggravated battery), regardless of whether the victim was white or black.

The crucial points in upholding the enhancement were:


Traditionally, sentencing judges have considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant.

The defendant's motive for committing the offense is one important factor. Thus, in many States the commission of a murder, or other capital offense, for pecuniary gain is a separate aggravating circumstance under the capital sentencing statute.



Mitchell argues that the Wisconsin penalty enhancement statute is invalid because it punishes the defendant's discriminatory motive, or reason, for acting. But motive plays the same role under the Wisconsin statute as it does under federal and state antidiscrimination laws, which we have previously upheld against constitutional challenge. Title VII, for example, makes it unlawful for an employer to discriminate against an employee "because of such individual's race, color, religion, sex, or national origin."

Moreover, the Wisconsin statute singles out for enhancement bias inspired conduct because this conduct is thought to inflict greater individual and societal harm. For example, according to the State and its amici, bias motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest. The State's desire to redress these perceived harms provides an adequate explanation for its penalty enhancement provision over and above mere disagreement with offenders' beliefs or biases. As Blackstone said long ago, "it is but reasonable that among crimes of different natures those should be most severely punished, which are the most destructive of the public safety and happiness." 4 W. Blackstone, Commentaries *16.


The argument accepted by the Supreme Court is that greater social unrest is generated by an assault or a murder committed for racial reasons than, say, for knocking over a liquor store or having an ordinary quarrel among neighbors or family members.
4.13.2009 3:25pm
Steve:
Laymen speaking -- It's perplexing what 'hate crime laws' are supposed to do. When the crime is murder, isn't that already enough "against the law" to satisfy most requirements? Wouldn't just punishment for that be sufficient.?

Consider that premeditated murder is generally punished more severely than regular old murder. You could make the same argument, that the victim has been murdered either way, and why should we insist on reading the killer's mind in order to dole out more punishment. Yet there are plenty of objections to hate crimes legislation on this basis and few objections (or none at all) to the concept of additional punishment for premeditated murder.

Bad intent is punished by the law all the time when it is coupled with an actual criminal act. If you want to separate the unlawful act from the evil intent that motivated it, there's an awful lot of "thought crimes" on the books already.
4.13.2009 3:33pm
Daryl Herbert (www):
The murderer has indicated that his sole motivation to murder Angie was that she was a transgender woman. In fact, since being in jail, the murderer has been quoted saying, "all gay things need to die."

It's bad enough to be in prison. It's much worse to be in prison if the other inmates think you're a homo. He's just protecting himself.

When transgendered people trick other people into having a relationship (or sexual encounter) with them, the victim ends up being labeled a homo. In academic circles, that might not be a big deal, but for lower income people (especially inner-city African Americans and hispanics), being labeled a homo means they will suffer hate crimes, including severe beatings.

It's a perfectly natural male response to that kind of deception and danger to beat someone to death. It's perfectly logical to express anti-gay ideas in a prison setting, in order to protect your own backside, and it tells us nothing about his state of mind at the time of the homicide.
4.13.2009 3:39pm
Per Son:
I understand what you are saying for the second, but the first statement was alelgedly made to the cops. Not too bright, eh?
4.13.2009 3:44pm
Poor old dirt farmer:
@My Middle Name Is Ralph:

You said:

"You misunderstand what hate crimes are. Killing a black person or a gay guy does not a hate crime make. Killing a black person or a gay guy because he's a black guy or a gay person is a hate crime..."

I wonder why you chose to leave out a key phrase from my comment, "but you know that allegation will come up simply because the attacker and victim were different."

I fully understand the difference but that doesn't stop anyone from suggesting every white on black murder is a hate crime. Leaders of the minority groups most always start screaming "hate crime" immediately when one of their own is killed by someone outside their group. It doesn't matter to them what drove the killer to murder.

On another note, does anyone remember any minority on majority "hate crimes" receiving any news time?
4.13.2009 3:45pm
Jim at FSU (mail):
I would vote to acquit. If I was the prosecution, I would argue temporary insanity on the part of the shocked killer.

In our culture, if you are a male-to-female transgender, you should inform prospective partners of this before beginning a sexual relationship. Why? Because the vast majority of the population finds it horrifying to discover that their female partner is actually a man. It's a gigantic taboo. Anyone who pretends this isn't so is engaging in self-delusion.

Zapata dating guys without telling them of the sausage surprise would be like me feigning innocence and victimhood after serving someone a hamburger made of meat ground from their pet cat. Let's assume I found their cat already dead on the roadside.

How about a guy who feigns interest in a woman just so for an opportunity to have sex with her poodle? How about one of her children? Horror? Shock? Perhaps violence?

Anyone who violates severe social taboos, especially sexual ones, should expect violence in response. Perhaps your taboo-violating acts are technically legal and perhaps they are even constitutionally protected, but lets not pretend that people will never be shocked into a violent and illegal response by your behavior.

Most taboos are associated with criminal sanctions, but many are not, especially if the taboo has only recently formed. In this case, I think that society is hostile to the notion of men pretending to be women so they can have sexual relationships with other men. Whether the tranny believes they are actually female is immaterial. The taboo is real and it's not going away.
4.13.2009 3:46pm
ShelbyC:

I agree that misrepresenting your biological sex to a sex partner is a Big Deal, but not everything that's a Big Deal is a crime. I think saying "I love you" when you don't care about the person and just want sex is a Big Deal too, but it would not (and should not) be cognizable violation of the deception statute.



Why not? It's deception. You can argue about the wisdom of outlawing consent obtained through deception, but that's the law. Is there any evidence that the law has been intrepreted to exclude some kinds of deceptin?
4.13.2009 3:48pm
trad and anon (mail):
Libs view people not as individuals but as members of a class.


What is this even supposed to mean? Who an individual is has a lot to do with their membership in various classes. A large part of my identity as an individual is constituted by the fact that I'm a member of certain classes (e.g., men, lawyers, gays, liberals, atheists, Americans). If those class memberships were different (say, if I were a French, libertarian straight Muslim woman homemaker) I'd be a completely different person, and other people would think of me as one. Do you really see individual identity as independent of those sorts of categories? I sure don't.

Identity is not remotely wholly determined by those types of categories either but if you were blind to sex, nationality, religion, occupation, and sexual orientation you'd miss a lot of extremely important differences among people.
4.13.2009 3:48pm
Putting Two and Two...:
Am I the only person who thinks it's cool that Daryl's guards let him post here?
4.13.2009 3:49pm
Joe McDermott (mail):
I think the deception involved here should be an absolute defense to the murder charge.
4.13.2009 3:55pm
Fact Checker:
It's a perfectly natural male response to that kind of deception and danger to beat someone to death.

In what kind of sick and twisted world do you live in where it is the "perfectly natural male response to that kind of deception" (or any kind of deception for that matter) to beat someone to death with a fire extinguisher. And before you go off and claim I left out the "danger" part, exactly what danger was he in that it justified him beating this woman to death with a fire extinguisher?
4.13.2009 3:58pm
Sarah K. (mail):
DangerMouse: "Liberalism, with its roots in marxism..."

Uh...wha...?
4.13.2009 4:00pm
trad and anon (mail):
Why not? It's deception. You can argue about the wisdom of outlawing consent obtained through deception, but that's the law. Is there any evidence that the law has been intrepreted to exclude some kinds of deceptin?


You obviously do not know much about these laws. They are interpreted narrowly, so they actually exclude most acts of deception for sex. Otherwise every false "I care about you as a person" and "I'll respect you in the morning" would be a crime in the states with such laws.

Anyone who violates severe social taboos, especially sexual ones, should expect violence in response. Perhaps your taboo-violating acts are technically legal and perhaps they are even constitutionally protected, but lets not pretend that people will never be shocked into a violent and illegal response by your behavior.


Am I shocked? Not at all. I am not shocked every time someone cheats on their spouse, a school administrator overreacts to some minor offense, or the government passes another stupid law. Those things happen all the time, so I expect them. That doesn't make them OK.
4.13.2009 4:01pm
Per Son:
Jim at FSU:

You would vote to acquit - why?

As for: "Whether the tranny believes they are actually female is immaterial."

You could not be more wrong. That came up in a discussion regarding deception, and in order to decieve (criminally) one must have the requisite intent. If they truly believe that they are female, how can they have the requisite intent?

You also note: "In this case, I think that society is hostile to the notion of men pretending to be women so they can have sexual relationships with other men."

So now it was Angie pretending to be a woman in order to have the sexual relationship. If you read anything about her, you would realize that the identity and outward appearence had a lot more to it than solely to have sex with men.

Lastly, is anyone here saying that not letting the prospective partner know was not a problem? The question/issue has only been about whether Angie's actions were criminal.
4.13.2009 4:02pm
ronnie dobbs (mail):

Totally echoing matthewccr here.

Ugh. I can't believe this post even exists. Accusing a murder victim who was brutally beaten to death of sexual assault because she didn't tell every single fact about her life history?

I can't engage with that. I just want to never see it again.


Lots of delicate flowers on the comment threads today, apparently.
4.13.2009 4:06pm
DennisN (mail):
@another anonVCfan

[blockquote]
Suppose it were empirically verifiable that people who attack other people on the basis of race, gender, or sexual orientation have higher rates of recidivism than people who commit identical crimes for reasons unrelated to the victim's identity.
[/blockquote]

There's a lot of supposition there. I go back to my original, is it more dangerous to society that a perp offends because he is hate filled, or is it more dangerous if he is simply indifferent to the fate of his fellows? I can't see enough distinction there to support additional punishment.


I like einhverfr's definition of hate crime:

[blockquote]
1) An individual is singled out due to affiliation with a formal or informal social classification.

2) The crime is perpetrated in such a way as to intentionally send an intimidating message to members of this classification.
[/blockquote]

This provides a social distinction between the motivations as to be socially useful. It is arguably in society's interest to punish deliberate intimidation. An actions based standard also avoids the peril of peering into some one's heart.

On other points, I think the issue of Zapata's technical guilt or innocence is a bit of a red herring. If I shoot a home invader, few would object to branding him a criminal, even though he's not been convicted? I'm not even sure how far the sexual deception progressed, so what level of "illegal contact" was made. There's a lot of smoke, there. What appears incontrovertible is that Zapata performed an incredibly dangerous and provocative act. I've known a few trans who behaved like this and everyone was always amazed that they had not yet wound up in a ditch.

This is a case of the "naked Virgin rule."

A naked virgin should be able to walk down any dark alley at midnight with a bag of gold in each hand. It is not recommended, however. Is the NV at fault if she is attacked? Does Darwinian Impropriety count as fault? It is certainly a tactically unwise decision.

Non Standard Sexuality is an extremely evocative issue among some people. Does that effect on the mens rea serve as a mitigating factor? I'd argue not, but I'm sure the argument will be made by someone.
4.13.2009 4:10pm
Ken Arromdee:
The devil himself knows not the mind of man. There is NO WAY of knowing what someone else's definitions are with enough precision to make such a line work.

I don't know what the law in question actually says, but this sort of thing in general is no problem for the law, which has concepts such as "reasonable expectation" in it.

I think it's hard to sincerely argue that a transsexual won't know that lots of people would distinguish between someone born female and a transsexual.
4.13.2009 4:13pm
Lior:
FSU Jim: Mr. Andrade clearly lacks the self-control necessary for membership in society. It may be that the best course is involuntarily committment until we can be assured that he will not kill again when faced with emotional stress, but I don't think that is the usual approach the US legal system takes with killers.
4.13.2009 4:16pm
My Middle Name Is Ralph:

I wonder why you chose to leave out a key phrase from my comment, "but you know that allegation will come up simply because the attacker and victim were different."

I fully understand the difference but that doesn't stop anyone from suggesting every white on black murder is a hate crime. Leaders of the minority groups most always start screaming "hate crime" immediately when one of their own is killed by someone outside their group. It doesn't matter to them what drove the killer to murder.


I didn't quote that part (or the rest of your post) because I didn't think it was relevant to the point I was addressing. But, I'm happy to address this point specifically.

First, as a factual matter, I think you're simply wrong. There must be tens, if not hundreds, of thousands of felony crimes every year involving victims and perpetrators of different races, genders, sexual orientations, or other groups that would be subject to current hate crime laws. The overwhelming majority of them never make any news whatsoever and there are never any allegations that these crimes were motivated by hate of the protected classification.

Second, I don't care much about whether "leaders of minority groups" are alleging commission of hate crimes simply because the victim was black and the perp was white (not that there's any evidence of this happening regularly). The real issue is whether criminals are being prosecuted for such crimes wrongly. Show me some evidence that there's a widespread problem of white criminals accused of hate crimes simply because the victim was black and you might begin to convince me that the misuse (as all legal scholars agree this clearly would be) of hate crime laws outweighs their benefits.
4.13.2009 4:17pm
Jim at FSU (mail):
It's irrelevant because we're dealing with how other people are expected to behave in response to your behavior, not how you perceive your behavior. If you're engaging in behavior that is well known to result in violent revulsion, should society feign ignorance of its own customs when this happens?

If society were composed entirely of promiscuous, gender-bending bisexuals, this mans response would be an abnormal overreaction to a common misunderstanding. But in the society we live in, it is Zapata's behavior that is shocking and offensive. Again, it is irrelevant that Zapata perceived itself to be engaging in non-deceptive behavior. Everyone else perceives this to be a deception of the most offensive kind. And Zapata was aware of this or it wouldn't have bothered to mention this and bring on the violence.

ps- yes, I'm using a gender neutral pronoun for Zapata because I view Zapata's gender as ambiguous.
4.13.2009 4:18pm
ChrisTS (mail):
Anyone who violates severe social taboos, especially sexual racial or religous ones, should expect violence in response. Perhaps your taboo-violating acts are technically perfectly legal and perhaps they are even constitutionally protected, but lets not pretend that violent people will never be shocked into a violent and illegal response by your behavior.

And, let's not pretend that the violent response is justified or excusable.
4.13.2009 4:23pm
Per Son:
So many items flowing at once - I'll give my feelings on them:

1) Guy killed transexual - I think he should go down for murder, the fact that he robbed and stole, and had time to chill before ultimately killing - he is scum and should be locked up.

2) Transexual should have let him know before - I agree. She was playing with fire and got burned, and engaged in very dangerous conduct. However, with the stated facts, I do not believe she acted criminally.

3) Hate crimes - they are generally constitutional, but I am not sure that I like them as a policy matter.

4) Can of worms - you betcha. There are many "straight" men who go to she-males and what not for various reasons.

If you pick up a prostitute only to find out she is not really a she, is it ok to kill them? Certainly not.

What if you picked up a woman, who was really a man at a location that unbeknownst to you was frequented by transexuals and transvestites. Does that change things?

What if you realize the woman is really a man, finish the sex act up (because you were too far into it), and then in a moment of revulsion kill her. Does that change things?

What if the woman has undergone gender reassignment surgery, and for all intents and purposes is outwardly female . . .
4.13.2009 4:24pm
Bonze Saunders (mail):
"It appears that Zapata tricked Andrade into a sexual relationship."

Sez who? Ah, the murderer!

I am astonished that anyone would credit any part of his self-serving "trans panic" defense.
4.13.2009 4:26pm
Roguestage:
@David Drake, @Don Miller:

I think the First Amendment argument against hate crimes legislation is incredibly weak. Remember, any KKK member has a protected First Amendment right to say nasty things about blacks, jews, gays, etc., or to have a parade through a largely Jewish neighborhood (remember the Skokie case). What they say isn't a crime.

But once they cross the line into assaulting someone, murdering someone, etc., they have committed a crime. There is no First Amendment right to join in a conspiracy, even if all that is done is talk; there is no First Amendment right to commit fraud, even if it is done entirely through speech; there is no First Amendment right to threaten someone, certainly not if it rises to the level of assault. Even if a crime was committed to 'send a message', that does not make the 'message' protected in the same way as it would be if written on a sign.

I agree with Bored Lawyer's analogy to Title VII - disliking someone because of their race or gender is protected by the First Amendment. Firing them or demoting them because of their race or gender is not. There are some motives for action that aren't protected by the First Amendment, at least once they mature into action, just like there is some speech that isn't protected by the First Amendment.

@poor old dirt farmer, @10ksnooker:

Adding 'hate crime' to a murder prosecution may seem like much ado about nothing, but instead of thinking about every hate crime as murder and asking, 'how much more can you punish a murderer,' I've often found it useful to think of other crimes as a justification for hate crime legislation.

For example, vandalism is a crime, though it's usually not seen as a serious one. Does that mean that covering a synagogue with swastikas on Rosh Hashanah should be punished the same was as spray-painting 'Kilroy is here' on a park bench?

In the Wisconsin case discussed above, a group of black youths beat a white youth severely, and there was little question that they were motivated by race. Is that simply assault - same as a bar fight? Or is it something worse than that?

And if you don't see a difference between either of those examples, why not?
4.13.2009 4:28pm
Ken Arromdee:
The suggestion is that Zapata would be guilty of a crime simply for failing to volunteer, "I'm not female by what I assume to be your standards."

I don't think the intent of "sexual assault by deception" statutes is to make the sexual assault laws into something like the securities laws where you have an affirmative duty to disclose all material facts, etc.


Ignoring the trolls here (I'm sure that Jim at FSU is actually trolling for the purpose of discrediting the idea), I'll answer this seriously. We don't need to require disclosure of all material facts in order to require disclosing of really major ones. Whether someone who looks female was born female is considered material by a huge chunk of the public. Requiring disclosure of this does not imply require disclosure of anything whatsoever.
4.13.2009 4:29pm
Putting Two and Two...:
Jim, do you always use "it" to describe human beings when you're unsure of an individual's gender? You must get a lot of odd looks.
4.13.2009 4:30pm
trad and anon (mail):
Lots of delicate flowers on the comment threads today, apparently.


A woman is brutally murdered without justification. A prominent blogger responds by branding her a "sex criminal" on dubious legal and factual grounds in an apparent effort to blame the victim. People object. Apparently this makes us "delicate flowers."

What appears incontrovertible is that Zapata performed an incredibly dangerous and provocative act. I've known a few trans who behaved like this and everyone was always amazed that they had not yet wound up in a ditch.


Dangerous? Apparently it was dangerous to her. Provocative? Apparently he was provoked into killing her. But no reasonable person would have flown into a killing rage in those circumstances.

Her acts were nonetheless Not OK; this is a thing that people should disclose. I would be very angry if I ended up in bed with a transgendered man without him telling me first. The vast majority of other people would feel the same way in similar circumstances and they'd have the right to feel that way. That doesn't make killing the person an acceptable response.

In some sense, it might be "dangerous" and "provocative" for a new school of Palestinian activists to walk into Israel holding a Gandhi-style nonviolent protest. But if they were killed in response it would be just as much of a mass murder as a suicide bombing at an Israeli school.
4.13.2009 4:36pm
Lior:
ShelbyC: I would guess that (like me) you are not a lawyer. In that case, it's important that we recognize that words used in legal context might be technical terms with a specific meaning.

Mathematicians commonly use the word "ball". It is true that mathematical balls share many properties with ordinary balls. Why did mathematicians choose the word? They had a concept they wanted to describe, and this concept jived pretty well with the everyday idea of a ball. For example, if you have a ball in some space then every point of the
space which is sufficiently close to the center of the ball actually lies inside the balls. This "concept" evolved over a long time before there was general agreement on the precise definition. It's partly inspired by discs, basketballs, cannonballs and grapefruit, but it's not precisely any of them. In any case the concept is a mathematical concept, and so mathematical balls have properties that are very different from everyday balls. For example, in mathematical three-dimensional space you can divide a mathematical closed ball into five disjoint pieces and reassemble them puzzle-like into a ball twice as large. [aside: because of issues like this the everyday notion of "volume" cannot be easily made mathematically precise, and any mathematically precise notion of volume has inherent limitations]

If you read a mathematical paper but use the dictionary (or your intuitive) meaning of "ball" or "volume" you will probably get the rough idea, but you might also completely miss the point -- and might even draw wrong conclusions.

Similarly, I'm fairly certain (to the extent I can be sure without knowing anything) that "deception" as used in criminal law has a technical meaning, evolved by jurists over a long time. Legal concepts are not precise the way mathematical concepts are, and are always open to disagreement and interpretation, but they are meaningful abstraction nevertheless (at least to lawyers). Using our intuitive notion (or the dictionary definition) without an idea of the precise laws, precedents, and ways of thinking normal to the field is quite risky.

Not every lie told to get something of value is criminal deception. Not every topological ball looks round, smooth, or spherical.
4.13.2009 4:41pm
Bob from Ohio (mail):
The dead person was not a woman.

He was a man. Period.

Lets be accurate at least. It is chromosomes that determine gender, not subjective belief or behavior or reconstructive surgery.
4.13.2009 4:44pm
trad and anon (mail):
Ignoring the trolls here (I'm sure that Jim at FSU is actually trolling for the purpose of discrediting the idea), I'll answer this seriously. We don't need to require disclosure of all material facts in order to require disclosing of really major ones. Whether someone who looks female was born female is considered material by a huge chunk of the public. Requiring disclosure of this does not imply require disclosure of anything whatsoever.


That doesn't mean the statute actually requires disclosure of this particular fact, even though it is a major fact. And that is the issue here: Kopel claimed that Zapata violated the law as it exists in reality, not as it should exist. I'd be shocked if that statute even mandates disclosure of HIV-positive status. I'd consider that an even more major fact than being transgender, because of the risk it poses to the partner. I'd also be shocked if it doesn't bar lying about being HIV-positive, but that is a different thing from nondisclosure.
4.13.2009 4:50pm
Per Son:
Bob:

You are wrong. Within psychological and medical circles your view is not always winning. Gender is being seen as more fluid than say, perheps, sex.
4.13.2009 4:52pm
trad and anon (mail):
The dead person was not a woman.

He was a man. Period.


I disagree, but these sorts of ontological questions are irrelevant.

It is chromosomes that determine gender, not subjective belief or behavior or reconstructive surgery.


Wrong! Biological sex is determined by the SRY gene. An XY may be female if they don't have the SRY gene, and an XX may be male if they do. I think various genetic abnormalities can cause someone to develop as a female even if they have an SRY gene. And of course people end up with various intersex conditions despite the presence of SRY (or even its absence, I think).
4.13.2009 4:58pm
ShelbyC:
t &a:

You obviously do not know much about these laws. They are interpreted narrowly, so they actually exclude most acts of deception for sex.


Correct. I do not. Is there anywhere I can read more about how narrowly they're interpreted, not that your say-so isn't good enough?
4.13.2009 5:07pm
Patrick from OZ (mail):
I would be very sceptical. We in Australia had a series of similar cases where the defendant's fact pattern was sth like:

- We met at nightclub X through [a mutual friend, a chance encounter, who cares];
- We were heading home at the same time and I agreed to let him stay the night at mine [/he suggested I stay the night at his];
- I woke up to find him kissing me;
- I beat him to death in rage and confusion and shock.

The obvious legal inference implied was that the defendant had been provoked. The obvious practical inference is that the defendant was lying. Nonetheless, the High Court agreed, twice, that this could legally constitute provocation (our High Court also hears State appeals). Famously at least one (discreetly) gay judge signed on to the majority.

Provocation has now been abolished in nearly every Australian jurisdiction - I wonder why?
4.13.2009 5:09pm
My Middle Name Is Ralph:

ShelbyC: I would guess that (like me) you are not a lawyer. In that case, it's important that we recognize that words used in legal context might be technical terms with a specific meaning.

. . . .

Similarly, I'm fairly certain (to the extent I can be sure without knowing anything) that "deception" as used in criminal law has a technical meaning, evolved by jurists over a long time.


Your first statement is definitely true, in that some words might have technical legal meanings apart from their ordinary definitions. But, I'm not aware of any special legal meaning for the word "deception." The statute may give a definition or case law might refine the term. The context in which the word is used or the legislative history behind the statute might provide some insight into a word's meaning. But, generally, words in statutes are given their common, ordinary meanings. The problem with this statute is that a broad reading of "deception" would bring in a LOT of conduct which it seems the legislature was unlikely to have intended doing. Thus, some say that "deception" in statutes like this is given a narrow reading (no idea if true, but it certainly makes sense). So, one criticism in this thread is that Kopel makes a pretty definitive statement that Zapata violated the ciminal statute when common legal sense tells some of us that it is unlikely to be that clear cut (assuming there is not more specific legal guidance in the statute or case law as to the meaning of "deception," which presumably Kopel would have provided had he been aware of it).
4.13.2009 5:10pm
feminstx.blogspot.com (mail) (www):
I doubt many people would have trouble feeling sympathy for the victim though they could probably understand that the perpetrator would be angry. I don't think this is a bad representative for the purpose of expanding hate crimes to transgendered individuals.
4.13.2009 5:11pm
ShelbyC:

For example, vandalism is a crime, though it's usually not seen as a serious one. Does that mean that covering a synagogue with swastikas on Rosh Hashanah should be punished the same was as spray-painting 'Kilroy is here' on a park bench?



I want to punish the second one more because the sentiments expressed make me angry.
4.13.2009 5:14pm
Bruce Hayden (mail):
You are wrong. Within psychological and medical circles your view is not always winning. Gender is being seen as more fluid than say, perheps, sex.
But in this sort of case, I would suggest that that is almost irrelevant. Sure, the "elites" might consider Zapata a woman, but the masses mostly probably consider such a man.

Homophobia is alive and well at this level, and isn't going anywhere. No matter how many psychologists or physicians try to tell the average person on the street that this was a woman, most would not agree, and many males would react violently to such a situation. Maybe not identically, but definitely violently.

And from that point of view, what was going on was homosexual sex by deception, as defined as one guy having sex with another one.
4.13.2009 5:15pm
another anonVCfan:
@DennisN
There's a lot of supposition there. I go back to my original, is it more dangerous to society that a perp offends because he is hate filled, or is it more dangerous if he is simply indifferent to the fate of his fellows? I can't see enough distinction there to support additional punishment.
Well, it wasn't a lot of supposition--it was one supposition. And my point was that if it is empirically true, then it's something that could reasonably be factored into criminal punishment. By stating that you can't see a distinction, all you're doing is denying that there's an empirical question as to whether those who commit "hate crimes" are more likely to re-commit. I'm not sure what your basis for that is.

But just for purpose of argument, grant my one supposition (I won't tell anyone). If it is empirically true that people who commit hate crimes are more likely than the average criminal to re-commit, why shouldn't that be factored into criminal sentencing? And if it should be factored in if true, shouldn't we try to find out whether it's true?
4.13.2009 5:17pm
Bruce Hayden (mail):
Denver Post:
Only when Andrade grabbed at Zapata's crotch did he discover the truth. But when she smiled at him and said, "I'm all woman," it drove an enraged Andrade to commit murder, attorney Annette Kundelius said.
Sure sounds like Zapata still had male sex organs.
4.13.2009 5:18pm
c.gray (mail):

I would be very angry if I ended up in bed with a transgendered man without him telling me first. The vast majority of other people would feel the same way in similar circumstances and they'd have the right to feel that way. That doesn't make killing the person an acceptable response.


Whether acceptable or not, in the world we actually live in, homicidal rage is a sufficiently likely response from a male stranger under these circumstances that Zapata deservedly won the Darwin award.

I'm all for punishing Andrade as an "ordinary" murderer. But would any real purpose be served by enhancing his punishment by labeling this offense a hate crime? Its not like Andrade chose his victim with murder in mind or out of some generalized class hatred. In fact, its more like the victim chose him...
4.13.2009 5:22pm
Blue:
"A woman is brutally murdered without justification."

That's not true, however. Zapata was a man who acted like a woman. The notion that you can just switch around gender is the "postmodern rot" I described earlier.

Look, I think the guy should be jailed due because of rifling through Zapata's belongings before returning to finish the job. Maybe the gender deception knocks that down to manslaughter over second-degree murder. Would depend on addional facts of the case.
4.13.2009 5:26pm
Don Miller (mail) (www):
DennisN:

A naked virgin should be able to walk down any dark alley at midnight with a bag of gold in each hand. It is not recommended, however. Is the NV at fault if she is attacked? Does Darwinian Impropriety count as fault? It is certainly a tactically unwise decision.


I have had this argument with rape counselors. Yes she is to blame for her attack. She made a foolish decision and suffered grievious harm. This does not excuse the attacker or lessen the evil that he did. He should be punished to the full extent of the law. But when dealing with the victim and trying to help her come to grips with what happened the "You did nothing wrong, the man was evil" is exactly the wrong thing to say. Helping her to identify the flaws in her critical thinking skills that led her to walk naked down an alley with bags of gold will help her more to come to grips with what happened and how to overcome it. Sometimes rape is a lightning strike where the woman did absolutely nothing wrong. But sometimes the woman knows in her heart that she made some foolish choices that led to the situation and helping her recognize those and fix the thinking that led to those decisions helps her recover faster.

I won't go into details, but something bad (not rape) happened to my step-daughter, and it took a good counselor who helped her fix her decision making to really help her get over it.

RogueStage:
I agree with Bored Lawyer's analogy to Title VII - disliking someone because of their race or gender is protected by the First Amendment. Firing them or demoting them because of their race or gender is not. There are some motives for action that aren't protected by the First Amendment, at least once they mature into action, just like there is some speech that isn't protected by the First Amendment.


Actions are crimes. Thoughts and feelings/motivations are an important part of proving the crime. They can and should be used in figuring out the appropriate sentence/punishment.

My problem is with stand alone hate crime legislation that the thoughts/feelings are being treated as a seperate crime. That is where 1st Amendment grounds are being trampled on.

Murder with sentencing ehancement, good

Murder with seperate hate crime charge, bad
4.13.2009 5:29pm
einhverfr (mail) (www):
Ken:

I don't know what the law in question actually says, but this sort of thing in general is no problem for the law, which has concepts such as "reasonable expectation" in it.

I think it's hard to sincerely argue that a transsexual won't know that lots of people would distinguish between someone born female and a transsexual.


So where do you draw the line? Lying about age (for example, going to a college campus and pretending to be, say, 5 years younger than you are)? Marital status (Adultery punishable as rape)? Lying about one's profession? Falsely saying "I love you" in order to sleep with someone?

ISTM, that one would REALLY have to define deception in this sort of case extremely narrowly or else one would run into quite legitimate 4th amendment issues.

If that French case over annulments and deception about virginity happened in Colorado would the wife be charged with sexual assault?

In most states that have these laws, the intent is to prevent people from fraudulently representing themselves as someone's spouse in order to obtain sexual relations. While there may be some other limited cases where fraud might be legitimately argued. However these tend to be extremely rare.

Now, as it turns out, Kopel is wrong here. He is looking to a law which establishes affirmative defence rules and these rules appear to be written for cases like SMBD cases, etc. It does not address the meaning of the word "consent" in this specific statute:




As used in this part 4, unless the context otherwise requires:




(1) "Actor" means the person accused of a sexual offense pursuant to this part 4.




(1.5) "Consent" means cooperation in act or attitude pursuant to an exercise of free will and with knowledge of the nature of the act. A current or previous relationship shall not be sufficient to constitute consent under the provisions of this part 4. Submission under the influence of fear shall not constitute consent. Nothing in this definition shall be construed to affect the admissibility of evidence or the burden of proof in regard to the issue of consent under this part 4.


Now, what this says to me is that deception is LIMITED to the the nature of the act, not the actor. Hence there was no issue of unlawful sexual activity here!
4.13.2009 5:35pm
einhverfr (mail) (www):
Now, in the area Kopel cites would be relevant if I say "beat me" and you do and I am only slightly injured, then the fact that I consented to the beating is an affirmative defence. However, this is NOT quite the case of the same thing wrt unlawful sexual activity. Here deceptive means to obtain consent are more narrowly defined.
4.13.2009 5:37pm
Per Son:
Don Miller:

You think the naked virgin is to blame for the attack? I will go so far to say that she is a moron, stupid, on crack, but to actually lay the blame for the rape on her shoulders is abhorrent. So would a credible rape defense be: "she was naked." Or whatabout: "she was naked, and I was there." Foolish decisions do not equal blameworthyness. If a man is convicted of check kiting and he gets to prison and is raped, is he to blame?

When is she no longer to blame?

If she does not have gold?
If she wore a shiny catsuit instead?
If she was topless?
Bottomless?
Burka?
Not in the alley.

What is the line?

Did the white driver who got beaten during the LA Riots deserve blame for his assault - he was white and was in the middle of the riots.
4.13.2009 5:51pm
Lior:
@My Middle Name Is Ralph:
The statute may give a definition or case law might refine the term. The context in which the word is used or the legislative history behind the statute might provide some insight into a word's meaning. But, generally, words in statutes are given their common, ordinary meanings. The problem with this statute is that a broad reading of "deception" would bring in a LOT of conduct which it seems the legislature was unlikely to have intended doing. Thus, some say that "deception" in statutes like this is given a narrow reading (no idea if true, but it certainly makes sense).


This precisely proves my point, except that we use different words for the same phenomenon. What you call a "reading" of the term is what I call its "technical meaning". There can be disagreements about the proper choice of reading -- but still the act of "giving a reading of the term" is just the legal profession's way to take an ordinary word and make it a technical term.

Since it's the "reading" that counts, I think that the "reading" should be thought of as true meaning of the term. When the Supreme Court considers whether a particular crime was a "crime of violence" making an alien removable, what they are really doing is defining a technical term of immigration law. They may start with the dictionary but once they're done immigration lawyers will use "violence felony" to mean "the class of crimes defined by the Congress in the USC, interpreted by Supreme Court in INS v X and later refined by INS v Y". It is not an accident that the intuitive notion each of us has of what a "violent felony" is does not deviate significantly from the class of crimes actually covered in practice, but the terms are not coextensive.

For example, there was disagreement about whether a conviction for an act involving violence counts as a "violent felony" when the felony the person was actually charged with and convicted of did not include physical violence as an element of the crime. I don't remember what the Court ruled in the end, but it doesn't matter -- in any case the term "violent felony" in immigration law now leads a life of its own, separate from the meaning of the words "violence" and "felony" in everyday speech.
4.13.2009 5:55pm
einhverfr (mail) (www):
Lior and Ralph:

Fortunately the legislative intent was clear and the consent defence bit that Kopel cites is not the definition of sexual consent in Colorado state law....
4.13.2009 5:57pm
Ken Arromdee:
So where do you draw the line? Lying about age (for example, going to a college campus and pretending to be, say, 5 years younger than you are)? Marital status (Adultery punishable as rape)? Lying about one's profession? Falsely saying "I love you" in order to sleep with someone?

If you were to ask the average person on the street how bad it was to lie about your birth sex (in a sexual context), I'm pretty sure they'd call it worse than lying about your profession, lying about your marital status, falsely saying "I love you", or just about anything else except maybe HIV status.

So it's actually pretty easy to distinguish the cases. Would a really large number of people think the lie is really serious? Yes? Then not telling them or lying by omission is deceitful.
4.13.2009 5:58pm
DennisN (mail):
@ trad and anon

[blockquote] Dangerous? Apparently it was dangerous to her. Provocative? Apparently he was provoked into killing her. But no reasonable person would have flown into a killing rage in those circumstances. [/blockquote]

I agree that no reasonable person would have flown into a killing rage in those circumstances. Sex acts tend to make people, especially perps, it seems, less reasonable than otherwise. Does this justify the killing? Hell no. I don't think it justifies a hate crime add-on, though. Then again, how much of an add-on can you apply to Murder One?


@another anonVCfan
[blockquote] But just for purpose of argument, grant my one supposition (I won't tell anyone). If it is empirically true that people who commit hate crimes are more likely than the average criminal to re-commit, why shouldn't that be factored into criminal sentencing? And if it should be factored in if true, shouldn't we try to find out whether it's true? [/blockquote]

Only if the same effort is made to perform that kind of analysis for every permutation. I don't believe it is practical or accurate.

@Blue

[blockquote] Look, I think the guy should be jailed due because of rifling through Zapata's belongings before returning to finish the job. Maybe the gender deception knocks that down to manslaughter over second-degree murder. Would depend on additional facts of the case.
[/blockquote]

Taking a break to do his stealing and then coming back to "finish the job," should be an aggravating factor, and probably was considered so since the perp was charged with Murder one. It becomes much more of a cold blooded act than a crime of passion.

@Don Miller

[blockquote] I have had this argument with rape counselors. Yes she is to blame for her attack. She made a foolish decision and suffered grievious harm. This does not excuse the attacker or lessen the evil that he did. He should be punished to the full extent of the law. But when dealing with the victim and trying to help her come to grips with what happened the "You did nothing wrong, the man was evil" is exactly the wrong thing to say. Helping her to identify the flaws in her critical thinking skills that led her to walk naked down an alley with bags of gold will help her more to come to grips with what happened and how to overcome it. [/blockquote]

I agree, as long as you are careful to separate the stupid tactical decision from the moral culpability of the rapist. Rape victims often feel morally responsible, and that's not right. We all make stupid tactical decisions. Sometimes Darwin is watching, sometimes he is not.

[blockquote] Murder with sentencing ehancement, good

Murder with seperate hate crime charge, bad [/blockquote]

I can sign on to that.
4.13.2009 5:59pm
hazemyth:
The issue of deception goes right to the heart of transexuality in way that no one seems to have noted. Most transexuals aspire to 'pass'. That is, they identify as a particular sex other than their biological sex and wish to be thus identified by others. Again, for many, this is transexuality itself. Are we saying that it is an act of perhaps criminal deception?

As for hate crimes... I agree with the functional distinctions drawn above (i.e. swastika's vs. kilroy -- which, now that I read it, sounds like a really fascinating court case). But if this is our basis for understanding hate crime law, it's not clear to me that it applies to the Andrade case. After all, even if he was motivated by disgust toward a transexual, there's no indication he sought to intimidate the transexual population or otherwise 'send a message'.
4.13.2009 6:02pm
CLS (mail) (www):
Wow! I can say I just lost some respect for Mr. Kopel. Very strong wording to call the murdered individual a criminal due to "deception" in that relationship. Half the straight men in America (and I'm being conservative) would be classified as rapists under that premise. Telling a woman you really love her, when you are mildly in-like but very horny, is also deception. Men deceive women all the time and I'm sure that women do as well, in order, to have a relationship. According to Kopel's take on this case then all those men are rapists. I found the analysis very disappointing. After recently reading Mr. Kopel's article on gun control in Germany I had very high regard for him. Today, not so high, I felt the tone of his article here was unpleasant and perhaps even bigoted toward someone who was transgendered. (It is transgendered not "female transgender person" which is awkward). I have a good friend who is transgendered and that has made me aware of the difficulties and issues around this issue. I can't say I was at all impressed by Kopel's take on it.
4.13.2009 6:02pm
CLS (mail) (www):
Wow! I can say I just lost some respect for Mr. Kopel. Very strong wording to call the murdered individual a criminal due to "deception" in that relationship. Half the straight men in America (and I'm being conservative) would be classified as rapists under that premise. Telling a woman you really love her, when you are mildly in-like but very horny, is also deception. Men deceive women all the time and I'm sure that women do as well, in order, to have a relationship. According to Kopel's take on this case then all those men are rapists. I found the analysis very disappointing. After recently reading Mr. Kopel's article on gun control in Germany I had very high regard for him. Today, not so high, I felt the tone of his article here was unpleasant and perhaps even bigoted toward someone who was transgendered. (It is transgendered not "female transgender person" which is awkward). I have a good friend who is transgendered and that has made me aware of the difficulties and issues around this issue. I can't say I was at all impressed by Kopel's take on it.
4.13.2009 6:02pm
Perseus (mail):
Postmodern rot. Misrepresenting your biological gender in a dating/relationship situation is fundamentally different that trivia such as age, height, and weight.

Nonetheless, I anticipate a parade of university professors testifying about the social construction of gender identity.
4.13.2009 6:06pm
einhverfr (mail) (www):
Ken:


If you were to ask the average person on the street how bad it was to lie about your birth sex (in a sexual context), I'm pretty sure they'd call it worse than lying about your profession, lying about your marital status, falsely saying "I love you", or just about anything else except maybe HIV status.

So it's actually pretty easy to distinguish the cases. Would a really large number of people think the lie is really serious? Yes? Then not telling them or lying by omission is deceitful.


Assuming arguendo that Kopel is right and 18-1-505 governs sexual consent (I think 18-3-401 definitions of consent, where deceit would be limited to questions of the nature of the act, not the nature of the actor, governs sexual consent). I don't think it does, but let's explore your argument a little.

Your view is that jurors should be asked to convict people because their lies were "a big deal?" Certainly it is quite reasonable to expect an Islamic husband who has been assured that his fiancee is a virgin to see that as a big deal. If he finds out after they are married that she is not, you think she should be possibly imprisoned?
4.13.2009 6:06pm
einhverfr (mail) (www):
CLS:

I think he cited the wrong definition for consent too.....
4.13.2009 6:07pm
Don Miller (mail) (www):
Per Son:

You think the naked virgin is to blame for the attack? I will go so far to say that she is a moron, stupid, on crack, but to actually lay the blame for the rape on her shoulders is abhorrent. So would a credible rape defense be: "she was naked." Or whatabout: "she was naked, and I was there." Foolish decisions do not equal blameworthyness. If a man is convicted of check kiting and he gets to prison and is raped, is he to blame?
When is she no longer to blame?


I can feel your outrage from here.

When bad things happen to people, most of sit back and analyze, why did this bad thing happen to me? What did I do wrong and how can I prevent it in the future? That is a normal reaction. We do it all the time without even thinking about it. We call it learning.

In this case, the bad decision making by the naked virgin led her to be in a bad place. She made herself vulnerable to attack. From a legal and moral standpoint of defense for the attacker, this is meaningless. The attacker was wrong. The attacker should fry. Her bad decisions are not a defense.

But from a position of emotional recovery, telling the naked virgin that she bears no responsibility for what happened to her is just stupid. It goes against our basic human nature of learning to protect ourselves. A good counselor would say, you made bad decisions that led to this result. We both know it. We can see the decisions that put you in this position. Now, lets figure out what your were thinking, why you made those decisions and what you can do to prevent yourself from being a victim again. This is empowering behavior and helps the woman gain control of her life again.

No one deserves to be raped. Ever. Rapists should get no sympathy from the courts.

But from a counseling standpoint, telling someone that they bear no personal responsibility for being a victim, when the pattern of poor decisionmaking is obvious to the victim and everyone around them, is just lying to them. It doesn't help them recover and it doesn't help them prevent it from happening again.
4.13.2009 6:15pm
Perseus (mail):
The issue of deception goes right to the heart of transexuality in way that no one seems to have noted. Most transexuals aspire to 'pass'. That is, they identify as a particular sex other than their biological sex and wish to be thus identified by others. Again, for many, this is transexuality itself. Are we saying that it is an act of perhaps criminal deception?

Identifying as a gender other than biological sex is arguably an act of self-deception. IANAL, but I don't think that self-deception, however sincere, immunizes a person against a charge of deceiving others.
4.13.2009 6:21pm
einhverfr (mail) (www):
Perseus:

Do you agree that under that definition if a woman tells her prospective husband that she is a virgin and he finds out after the marriage that she is not, then she is not only guilty of fraud in this sort of case but also sexual assault? Send her to prison and make her register as a sex offender?
4.13.2009 6:27pm
Steve:
IANAL, but I don't think that self-deception, however sincere, immunizes a person against a charge of deceiving others.

Well sure it does. You can't have the criminal intent to defraud if you think your statement is true.
4.13.2009 6:27pm
hazemyth:
The 'naked virgin' analogy is pretty tendentious. How often are actual rape victims' actions risky, in themselves -- let alone identifiably so (before the fact)? Having to assess the myriad of quotidian decisions that may have inadvertently placed the victim in danger sounds neurotic and paralyzing. Not good for recovery.

If this is still meant to be an analogy to Zapata... Nothing I've read suggests that her behavior was obviously risky. Some people here have asserted that transexuality is inherently risky because of widespread social abhorrence -- which, if anything, strikes me as an indictment society. In reality, transexuals seek to identify with their chosen sex and negotiate any risk (physical or emotional) involved. We needn't assume her behavior was risky because she apparently didn't disclose. It seems she mistakenly gauged Andrade. But mistakes are not the same as wanton risk.
4.13.2009 6:27pm
Putting Two and Two...:
I'm having trouble with this naked version scenario. Is the bad decision her nudity or her virginity?
4.13.2009 6:28pm
Lior:
einhverfr: As I said, I'm not a lawyer, so I have no opinion regarding criminal deception a matter of Colorado law. I would say that ordinary lying should generally not be a criminal act, but this has no bearing on the actual definition of sexual deception in Colorado (you provided part of it -- the part created by the legislature).

In a way, that was my whole point: as a non-lawyer in a legal forum I feel free to express my opinion on what the law should be, but I am more cautious when expressing opinions on what the law is.

This is not to say I don't, but that when I do I try to be aware of my limitations. A statute can seem clear to me and I can still be wrong about it. Knowing only the Fifth Amendment but not Kelo I would have given you a very confident version of takings law, whereas the law is in fact the exact opposite of what I'd have said.
4.13.2009 6:31pm
einhverfr (mail) (www):
Lior, I am not a lawyer either, but I started reading up on Colorado law due to the discussion and concluded that Kopel cited the wrong statute for the definition of consent as it relates to the definition of unlawful sexual activity. I was unable to find any case law though.
4.13.2009 6:34pm
hazemyth:

IANAL, but I don't think that self-deception, however sincere, immunizes a person against a charge of deceiving others.

Well sure it does. You can't have the criminal intent to defraud if you think your statement is true.


In fairness to Perseus, I think he's referring to cases where the person is reasonably capable of assessing the facts but does not.

Transexual identity is not about facts, tho. Transexuals know that they were born one sex. They identify with another sex as being more 'true'. That Zapata felt, and stated, that she was 'really' a woman, does not mean that she was dishonest about facts concerning her biological nature. She didn't see them as relevant. She failed to accurately gauge their relevance for Andrade, who putatively abhorred transexuals. None of this constitutes dishonesty.
4.13.2009 6:34pm
einhverfr (mail) (www):
For the appropriate section, see section 18-3-401. Kopel cites 18-1-501 which the annotations and definitions seem to suggest is strictly related to consent as an affirmative defence in what might otherwise be a crime as a general principle (assault, battery, etc).

18-3-401 relates to the definition of sex crimes and includes a definition of consent. It should govern 18-3-404 (unlawful sexual contact) regarding matters of definition.
4.13.2009 6:39pm
Per Son:
Don Miller:

I understand your point, but do not like your use of the word "blame."

I live in the Capitol Hill area of DC and there are lots of muggings. Whenever my wife and I see someone at night on their cell and not paying attention to their surroundings, we refer to them as morons as if they are asking to be robbed. Blameworthy - no, but morons - yes.

Not being involved and without any clue regarding rape counseling, I cannot comment on appropriate methods.
4.13.2009 6:40pm
Perseus (mail):
Well sure it does. You can't have the criminal intent to defraud if you think your statement is true.

What I was getting at is the part of the legal definition of deceit that involves whether there are reasonable grounds for believing something to be true.
4.13.2009 6:45pm
another anonVCfan:
@DennisN (or anyone else)
@another anonVCfan
[blockquote] But just for purpose of argument, grant my one supposition (I won't tell anyone). If it is empirically true that people who commit hate crimes are more likely than the average criminal to re-commit, why shouldn't that be factored into criminal sentencing? And if it should be factored in if true, shouldn't we try to find out whether it's true? [/blockquote]

Only if the same effort is made to perform that kind of analysis for every permutation. I don't believe it is practical or accurate.
Isn't that just allowing the perfect to be the enemy of the good. If we happen to know of one factor that makes criminals more dangerous, and therefore worthy of longer incarceration, is it really your position that we shouldn't subject them to longer incarceration unless we've also weighed every other factor that might lead someone to be more dangerous than average? If that's the case, is the widespread practice of giving longer prison sentence to people who rape children rather than adults--on the grounds that child rapists are more likely to be recidivists--justifiable? I can't imagine we've weighed every other factor, we've just focused on one that we know about, and most people would assume that society is safer because of it.
4.13.2009 6:53pm
einhverfr (mail) (www):
Perseus:

However, I am not sure that (with the exception of a few very specific issues) deception about the actor would necessarily abate consent in sex crime law in Colorado though. Why would 18-1-501 govern as Kopel contends (which seems to provide affirmative defence of consent regarding all sorts of crimes including assault) instead of 18-3-401 (definitions, including consent, for purposes of sex crime law)?

For example, you can't walk in to a bar, tell someone "let's go outside and fight it out" and then charge that person with assault when they do so and beat you up a bit (giving you minor injuries in the process). I think this is the sort of case where deception and consent in that statute take hold.
4.13.2009 6:54pm
rick.felt:
Whenever my wife and I see someone at night on their cell and not paying attention to their surroundings, we refer to them as morons as if they are asking to be robbed.

I used to have a quarter-mile walk from the subway through a mall parking lot late at night after work. It was almost always deserted. I felt safer when I was talking on my cell phone. You know: "Call the cops, I'm at the corner of Maple and 4th."
4.13.2009 7:09pm
Bonze Saunders (mail):

Per Son:

You think the naked virgin is to blame for the attack?
...
When is she no longer to blame?
...
Burka?


Bingo! We have a winner! All other females qualify for blame as "uncovered meat".


c.gray

Its not like Andrade chose his victim with murder in mind


And we know this because... Andrade claims he did not. Angie Zapata is no longer around to contradict him. How convenient!
4.13.2009 7:24pm
DennisN (mail):
@hazemyth:



The issue of deception goes right to the heart of transexuality in way that no one seems to have noted. Most transexuals aspire to 'pass'. That is, they identify as a particular sex other than their biological sex and wish to be thus identified by others. Again, for many, this is transexuality itself. Are we saying that it is an act of perhaps criminal deception?


I think it entirely depends on the purpose of the so-called deception. If the deception is to facilitate an underlying crime, robbery, sexual assault, whatever, then I believe the deception could be a criminal act, or an element of the underlying crime. If it is deception per se, with no criminal purpose, it is no more criminal than wearing a bad toupe. (Admittedly, I've seen toupes that should be capital offenss.)


@Perseus

Identifying as a gender other than biological sex is arguably an act of self-deception. IANAL, but I don't think that self-deception, however sincere, immunizes a person against a charge of deceiving others.


It goes to mens rea.


@hazemyth


If this is still meant to be an analogy to Zapata... Nothing I've read suggests that her behavior was obviously risky.



I would argue that a trans attempting to enter a sexual encounter with an uninformed straight man would be incredibly risky. As a minimum you risk having the snot beat out of you.


Some people here have asserted that transexuality is inherently risky because of widespread social abhorrence -- which, if anything, strikes me as an indictment society.


It is indeed an indictment of society. Just ask a f(r)iend of mine who was thrown out of a bar for using the Ladies room. I was worried we were going to wind up in a Spaghetti Western saloon brawl. They've drawn a tough hand, their fault, your fault, my fault, nobody's fault.


@ Per Son


I understand your point, but do not like your use of the word "blame."



I would try to avoid it in that context.
4.13.2009 7:30pm
Clayton E. Cramer (mail) (www):
1. I'm having trouble with the notion that beating someone to death for lying to you about their birth sex is even slightly justifiable. I can see how if you found out in flagrante delicto that it might provoke a "yuck" reaction, and perhaps even a fist to the face or something. But this sounds a good bit stronger than an immediate emotional response.

2. I notice that a lot of the same crowd that is screeching "homophobia" is also offended by the notion that there's something improper about lying to someone to get into a sexual relationship. I am not surprised. Decent people don't lie to get sex; the others go to law school, I presume so that they can work on combining deception and screwing others over into a paying occupation.

3. Matthew Shephard was an innocent victim, but not of homophobia. One of his killers was rather openly bisexual. They killed him as part of a robbery, at least partly done under the influence of intoxicants. But what are mere facts when homosexuals are demanding special treatment?
4.13.2009 7:32pm
Michelle Dulak Thomson (mail):
another anonVCfan,

Do we give those who rape children stiffer sentences than those who rape adults because the former are more likely to re-offend? Silly me; I thought it was because we thought raping a child was the worse crime.

It seems to me that such prudential considerations should have zero role in establishing punishments. A punishment ought to be what you deserve, given what you have done; you ought not to be punished further than your deserts because someone has determined that other people who committed the same crime were unusually likely to do it again.

If we are really convinced that, say, certain classes of sex offenders aren't safe to let out, then we ought to have the guts to call them mentally ill and consider them permanent patients rather than prisoners. Merely tacking an extra bit onto their sentences as a sort of down payment on the crimes they might go on to commit is unjust.
4.13.2009 7:33pm
einhverfr (mail) (www):
Clayton E Cramer:

I notice that a lot of the same crowd that is screeching "homophobia" is also offended by the notion that there's something improper about lying to someone to get into a sexual relationship.


I am not sure anyone is saying there isn't anything about improper about lying to someone to get into a sexual relationship. The argument is whether such lying can be criminalized. Those are really separate issues.

However, whether or not such lying can be criminalized categorically, I think Colorado law is fairly clear that it isn't categorically criminalized in Colorado.
4.13.2009 7:38pm
Michelle Dulak Thomson (mail):
Can we agree that the man's name is Matthew Shepard, by the way? No one (including DK) in this whole thread has spelled him right.


[DK: Thanks. I fixed it.]
4.13.2009 7:39pm
Bruce Hayden (mail):
I agree that no reasonable person would have flown into a killing rage in those circumstances. Sex acts tend to make people, especially perps, it seems, less reasonable than otherwise. Does this justify the killing? Hell no. I don't think it justifies a hate crime add-on, though. Then again, how much of an add-on can you apply to Murder One?
No reasonable person? Then I know a lot of unreasonable ones. I have no doubt that half of the guys I knew in high school would have gone violent faced with what they considered homosexual contact by deceit.

To some extent, what Zapata thought about his/her gender is irrelevant, because it was not a reasonable belief. Most people, when asked whether they thought Zapata male or female, would say male, and would also probably agree that that fact would be extremely relevant and important to most males before having sexual contact.

So, I think the question, if Zapata had been on trial, would not have been what sex he/she thought he/she was, but rather what sex he/she thought that most people would think that he/she was, knowing the facts that he/she had (i.e. still apparently having male sex organs, along with being genetically male). I seriously doubt that Zapata had any doubts as to the sex that he/she had been born, or what sex organs he/she still had. (But I don't think it would be all that much different an outcome if he/she had completed reassignment surgery).
4.13.2009 7:42pm
einhverfr (mail) (www):
Bruce Hayden:

So, I think the question, if Zapata had been on trial, would not have been what sex he/she thought he/she was, but rather what sex he/she thought that most people would think that he/she was, knowing the facts that he/she had (i.e. still apparently having male sex organs, along with being genetically male). I seriously doubt that Zapata had any doubts as to the sex that he/she had been born, or what sex organs he/she still had. (But I don't think it would be all that much different an outcome if he/she had completed reassignment surgery).


Trial for what?
4.13.2009 7:45pm
Bruce Hayden (mail):
2. I notice that a lot of the same crowd that is screeching "homophobia" is also offended by the notion that there's something improper about lying to someone to get into a sexual relationship. I am not surprised. Decent people don't lie to get sex; the others go to law school, I presume so that they can work on combining deception and screwing others over into a paying occupation.
I do think that real "homophobia" is relevant here. It is one thing to have a live and let live view when it comes to what people do with other (fully) consenting adults. But when it comes to oneself, it is very, very different. As I indicated above, I knew plenty of guys in high school, and even into college and beyond, who were extremely intolerant of male contact, esp. if it could possibly be taken as sexual. You could often get an almost violent reaction by just running your hands through their hair.

I have always attributed this to a lack of confidence in their masculinity. As they gained experience with their sexuality, this overreacting seemed to diminish.
4.13.2009 8:01pm
Ken Arromdee:
Your view is that jurors should be asked to convict people because their lies were "a big deal?"

No, my view is that if the lie is one which would be, by the populace at large, be considered serious deception, then any resulting consent should count as consent based on deception.

Most other types of lies are considered much less serious by an average person than this lie. There are lies which would be considered serious by particular non-average people, like lying to a radical Muslim about virginity, but the Muslim's beliefs about virginity are not widespread among average people. Furthermore, the radical Muslim's beliefs are associated with a system that does great harm to women, giving less of a reason to accommodate them.
4.13.2009 8:12pm
trad and anon (mail):
I notice that a lot of the same crowd that is screeching "homophobia" is also offended by the notion that there's something improper about lying to someone to get into a sexual relationship. I am not surprised. Decent people don't lie to get sex; the others go to law school, I presume so that they can work on combining deception and screwing others over into a paying occupation.


I wouldn't call this "homophobia" since I think she was a woman; if I had to use some word of that sort it would be "transphobia." But I agree that lying to get into a sexual relationship is generally wrongful. The question is when it is (or should be) illegal. It's wrong to tell someone you love them when you're really trying to get into their pants, but it is not (and should not be) a crime.
4.13.2009 8:23pm
Waldo (mail):
First, I think hate crimes laws are a bad idea in general. There should be no difference in punishment based on the "class" of the victim. Judges should have discretion, though, in sentencing to consider aggravating factors. While the court in Wisconsin v. Mitchell held that greater social unrest is generated by an assault or a murder committed for racial reasons than, say, for knocking over a liquor store or having an ordinary quarrel among neighbors or family members, it's also clear that hate crimes laws also hold the potential for unrest if perceived to protect actions acceptable to only a portion of society.

However, the idea that there should be no difference in punishment based on the "class" of the victim works both ways. What Allen Andrade did rather clearly appears to be murder, second degree perhaps, but murder nevertheless. That he was deceived by his victim might motivate a judge to mitigate his sentence. I would disagree with that, but there should be sufficient latitude in sentencing guidelines to account for motivations without creating "classes" entitled to greater or lesser protection under the law.

Finally, for those who argue that this situation justified a violent response, two words: Caveat emptor. Was there deception, yes; was it disgusting, quite possibly. May I suggest the following solutions: disengage, break contact, pop smoke, retrograde. Don't tell your friends. Get an alibi. Better yet, get one of your better friends to be your alibi. But beating someone to death with a fire extinguisher, that's just wrong.
4.13.2009 8:30pm
einhverfr (mail) (www):
Ken Arromdee:

No, my view is that if the lie is one which would be, by the populace at large, be considered serious deception, then any resulting consent should count as consent based on deception.

I don't like tying laws to contemporary community standards....
4.13.2009 8:36pm
Waldo (mail):
@Bruce Hayden:

I do think that real "homophobia" is relevant here. It is one thing to have a live and let live view when it comes to what people do with other (fully) consenting adults. But when it comes to oneself, it is very, very different. As I indicated above, I knew plenty of guys in high school, and even into college and beyond, who were extremely intolerant of male contact, esp. if it could possibly be taken as sexual. You could often get an almost violent reaction by just running your hands through their hair.

I would disagree. People do have a right to be intolerant of personal contact without their consent. And, yes, a man is quite likely to get an "almost" violent reaction by just running his hands through a woman's hair without her consent. As long as she doesn't try to beat him, that's not "phobia."
4.13.2009 8:47pm
Perseus (mail):
Do you agree that under that definition if a woman tells her prospective husband that she is a virgin and he finds out after the marriage that she is not, then she is not only guilty of fraud in this sort of case but also sexual assault? Send her to prison and make her register as a sex offender?

Interesting hypothetical, but I will punt for now since I haven't given it serious thought.
4.13.2009 8:53pm
Michelle Dulak Thomson (mail):
And, yes, a man is quite likely to get an "almost" violent reaction by just running his hands through a woman's hair without her consent. As long as she doesn't try to beat him, that's not "phobia."

Isn't that technically battery? Regardless of the sexes of the people involved?
4.13.2009 9:28pm
einhverfr (mail) (www):

Maybe the gender deception knocks that down to manslaughter over second-degree murder. Would depend on addional facts of the case.

Also according to the Denver Post, this is a first degree capital murder case..... The judge disagrees with you.
4.13.2009 9:39pm
Bob from Ohio (mail):

You are wrong. Within psychological and medical circles your view is not always winning.


The second sentence does not support the initial conclusion. The fact that my view is not "winning" does not make it wrong.

The victim here was mentally ill and medical circles are just enabling delusions like he had when they invent "transgender" theories.
4.13.2009 10:01pm
Roguestage:
@ Don Miller:

I agree, the status of an act as a 'hate crime' should be an element of motive and a sentencing enhancement.

But does the hypothetical (or proposed) federal hate crimes law do that? Or just apply 'hate crime' as a motive element and sentencing enhancement?

What about the state laws? Here is the relevant Colorado law, at issue in the Andrade case:

A person commits a bias-motivated crime if, with the intent to intimidate or harass another person because of that person's actual or perceived race, color, religion, ancestry, national origin, physical or mental disability or sexual orientation; he or she knowingly causes bodily injury [battery] to another person; or by words or conduct, knowingly places another person in fear of imminent lawless action [assault] directed at that person or that person's property and such words or conduct are likely to produce bodily injury to that person or damage to that person's property; or knowingly causes damage to or destruction of the property of another person. [vandalism; destruction of property]

(my emphasis)

Yes, this hate crime law is phrased as a separate charge - but to apply, the defendant must already have caused bodily injury (battery or murder), intimidation rising to the level of assault, or destruction of property. In fact, as I read this hate crimes law, it would be impossible to find a defendant guilty on this charge without finding them guilty of another charge as well.

At that point, what is the difference between a sentencing enhancement and a separate charge? Either way, the underlying crime is still a necessary element of the increased sentence, and the hate crime charge/enhancement only acknowledges the extra element of reprehensibility contained in that crime.

Am I missing something here?
4.13.2009 10:07pm
Waldo (mail):
@MDT:
Isn't that technically battery?
Depends. For his action, probably civil rather than criminal. For hers, depends on the meaning of "almost".
Regardless of the sexes of the people involved?
Yes.
4.13.2009 10:16pm
einhverfr (mail) (www):
A few points on Holwuttle and consent.

IANAL, but People v. Holwuttle was an appeal where the basis for appeal was the judge's acceptance of a small segment if 18-1-505(3)(d) placed in the jury instructions, and the appellate court ruled (correctly) that the fact that there was parallel wording in the statute meant that this was not an error. In short because the statute says consent obtained by force or intimidation was not valid, then the similar clause in 18-1-505(3) was usable in jury instructions.

The parallel wording requirement is an interesting one and at first I was confused by the court's note of it. However, since 18-1-505(3) states that provisions from the other statutes can override it, the parallel wording notion is instructive. It suggests to me that one starts with 18-3-401 and 18-3-404 and then applies to that elements from 18-1-505(3) which are found in parallel wording, and use them to clarify rather than override the definition of consent.

So it even Holwuttle doesn't suggest to me that 18-1-505 is the governing definition of consent to 18-3-404. It just looks like the courts are willing to entertain that it is informative as to what is valid consent.

Now if we do this, it would seem to me that most lies to get into a sexual relationship would be harmless under 18-3-401 definitions because they wouldn't cover the nature of the specific act consented to.

Now, as we look at Colorado law regarding legal genders and transgender folks, there are some interesting things which pop up. Some states allow changing the sex on the birth certificate while others do not. Some states allow transgender folks to get married as their assumed gender, while a few do not.

Now it turns out, Colorado DOES allow changing legal gender after operations. So whether there was legal deception might turn on whether Angie had taken this step. Transgender folks are also allowed in Colorado to marry as their assumed gender.

So it seems unclear to me what Angie's legal gender was. If she was legally a woman, it seems to me that there was no deception regarding the specific acts consented to (her giving him oral sex). Even if she hadn't gone through this legal step, would it have been deceptive acquisition of consent? I doubt it, given that Colorado recognizes gender as somewhat fluid. So I personally don't see a case for fraudulently obtained consent in this case.

Of course we are all arguing blind because there doesn't seem to be a lot of case law as to exactly where the line regarding deception and sexual consent is drawn. However it seems clear to me that "I make $200000 a year" is not deception from the perspective of sexual consent and neither is "I love you." "I am divorced" might be in so far as the nature of the act might be adultery. However if it didn't go beyond heavy petting, maybe that might not be relevant. So here we have someone who may have been legally female but had male genetalia, who engaged in oral sex with her male partner. It seems to me that a restrictive reading of these statutes would suggest no legally relevant deception was at work here.
4.13.2009 10:20pm
hazemyth:
There's a tendency in heternormative society to place a heightened onus of disclosure on sexual minorities. As a homosexual, for instance, you have to come out of a closet that you never entered.

A lot of the arguments here hold Zapata to a standard of disclosure set by the expectations of those around her. She should expect them not understand her sexual identity. She should know this is a volatile issue for them. Many have suggested that she was disingenuous in not anticipating and accommodating the attitudes of a man depraved enough to kill her.

Transexuals are, by and large, experienced in anticipating the prejudices of those around them, having had no small amount of exposure to those prejudices. They are not, however, morally culpable for managing those prejudices.
4.13.2009 10:23pm
trad and anon (mail):
The victim here was mentally ill and medical circles are just enabling delusions like he had when they invent "transgender" theories.

I disagree, but if you are right that just makes the killing even more culpable.
4.13.2009 10:39pm
Melancton Smith:
I hate crime, don't most people?

At any rate, if this is a hate crime it is because the kill hated himself for feeling gay for having sex with a man.

It's a self-hate crime.
4.13.2009 11:41pm
einhverfr (mail) (www):

It's a self-hate crime.


As are a surprising number of horrible crimes.....
4.13.2009 11:56pm
Anatid:
What is a proper level of disclosure for the following:

- XY Female - The result of Androgen Insensitivity Syndrome, in which an XY fetus will have the SRY gene and develop undescended testes, but tissues in neither the brain nor body have androgen receptors, causing the fetus to develop as physically and behaviorally female. The syndrome is usually discovered at puberty when she fails to menstruate (XY females will develop external female genitalia and part of a vagina, but no uterus). At that point, since she does not have ovaries, she will usually take estrogen supplements to continue developing as female. Legally, start to finish, she is female, and considers herself to be female. For non-reproductive purposes, society considers her to be female, despite having a Y chromosome and functioning testes.

- Guevedoces male - XY individuals born with an inability to manufacture the enzyme 5-a-reductase, which turns testosterone into DHT, the hormone responsible for masculinizing the external genitalia. They appear to be female at birth and are raised as female. At puberty, levels of testosterone raise high enough to stimulate the DHT receptors anyway. The testes descend, the labia fuse into a scrotum, and the clitoris develops into a (small) penis. From this point forward, the individuals are socially considered to be male. This congenital phenomenon is rare and mostly restricted to a small area, where it is culturally understood and tolerated.

- Congenital adrenal hyperplasia - CAH occurs in fetuses who, due to a variety of enzyme deficiencies, overproduce adrenal androgens during development. The overproduction reduces to normal levels by birth. In male fetuses, this is rarely an issue. Among female fetuses with this condition, some level of virilization and ambiguity of external genitalia can occur. However, CAH females still have the same rates of homosexuality and transexuality as the general population.

- True hermaphroditism - Extremely rare genetic mosaicism, with a combination of XY and XX cells. Individuals possess at least one ovotestis and have varying degrees of ambiguous genitalia.

There are a dozen other disorders which can affect the development of fertility, external genitalia, and brain regions pertaining to sexual orientation, identity, and behavior. The development of sex is a highly complex process, subject to all number of endogenous and exogenous regulators that can cause any number of sex-related factors to be incongruent with one another.

Say that a woman flew into a rage and beat to death a man who she discovered had micropenis. Would this be understandable, if not excusable? Should he have felt obligated to disclose his condition beforehand, out of concern for his physical safety and with complete disregard toward his emotional state at being expected to do so?
4.14.2009 1:32am
einhverfr (mail) (www):
ShelbyC:

Why not? It's deception. You can argue about the wisdom of outlawing consent obtained through deception, but that's the law. Is there any evidence that the law has been intrepreted to exclude some kinds of deceptin?


Sure one can. First, if this were the law (and I doubt it), it would be a violation of the 4th Amendment since such lies are so common that enforcement would be essentially arbitrary.

However, the clearer issue is that Colorado statute is fairly limited in what sort of deception undermines consent. From my reading, it has to be deception about the nature of the act (definition of consent in 18-3-401 CRS). Since Colorado recognizes transgender folks under their assumed genders, it seems to me that the nature of the act was that Andrade had oral sex with a person who was probably legally female. So the nature of this specific act was not at issue. Hence deception doesn't apply.

Naturally, IANAL....
4.14.2009 1:45am
Denever (mail):
I think that the vast majority of people would consider a person's particular sex to a sine qua non for their consent to a sexual act with that person


Probably true, but so what? The issue is whether the victim's "particular sex" = what she was born as or what she felt herself to be and then became. Post-op male-to-female persons are routinely considered female in the eyes of the DMV, the IRS, the State Dept., etc. Where does the author of this offensive post get the authority to decide that the past sex of the person is the appropriate determinant of that person's "real" sex?
4.14.2009 1:55am
Phallinius aortarunapomalopalous:
Edge cases are not especially relevant to the case of a person who starts as and naturally remains physically male through puberty.

Insofar as the sex act is physical, the presence or absence of certain physical parts is important. Zapata is not sitting on a bus; one or perhaps the major purpose of this sex act would be to enmesh Zapata's physical parts with Andrade's and be aroused.

There are only a few possibilities:

1. Zapata believed that Andrade was fine with the transgender bit. (Common understanding)

2. Zapata decieved the obvious expectations of Andrade so that Andrade would have sex with someone he did not want to, that is, against his will. (Deception and rape)

3. Zapata is an extraterrestrial, a time-traveler, or from some aboriginal tribe. (Unfamiliar with social customs tying clothing, etc. to sex)

One might argue that, by right, Zapata is free to wear whatever and act however, and the cultural commoner is in error by assuming Zapata's sex from the womanly behavior.

Yet, do two sexers not have obligations, disclosures, once they agree to join in carnal alliance? Unless Zapata is a dimwit or a space-farer, Zapata knows the secret, knows it is a secret, and conceals it.

The moral is: Do not have sex with strangers. They both should have been killed for that!
4.14.2009 2:30am
A.C.:
The notion of FEDERAL hate crimes law as a way to get ordinary state-law matters into federal court really bothers me. Sorry, folks, sometimes you just have to do your politics state by state. Even if it is boring and un-flashy compared to national efforts.

As for state-level hate crimes laws, I have no trouble with the notion for minor offenses. Painting swastikas on a synagogue IS worse than painting the name of a rock band on a railroad bridge, and having an additional increment of punishment for that offense makes sense.

But by the time you get to rape and murder, the offense itself is grave enough to overwhelm any hate crime component. Hatred based on group membership might be used to show motive, but it doesn't make the rape or murder any worse than one based on individual hatred and a desire for personal revenge. Besides, how do you tell the difference in practice?
4.14.2009 6:22am
A.C.:
And what transsexual can really pass anyway? I've known a few, and they've all been totally obvious. Once someone gets testosterone-induced facial features and skeletal structure, they don't go away no matter how much padding you try to grow over them. The Adam's apple alone is a dead giveaway.
4.14.2009 6:33am
Grover Gardner (mail):

The Adam's apple alone is a dead giveaway.


Ann Coulter is not pleased.

Sorry, I know that doesn't add "value" to the thread, but at this point I couldn't resist. And there's a little lesson about sweeping generalizations in there--somewhere. :-)
4.14.2009 6:52am
A.C.:
Coulter does have a scrawny neck and a rather butch jawline, but no sign of an Adam's apple that I can see. That bit of anatomy sits higher on women. Mine is about level with where my chin is when my teeth are clenched, which means it doesn't show unless I look straight up. It's several inches lower on most men, as well as being larger, so it shows a lot more.

Okay, enough of that.
4.14.2009 8:31am
Zoe E Brain (mail) (www):
I think I'm the only "transgendered" person to comment?

I'm technically not transsexual, my particular Intersex syndrome is sort of like a reverse Guavedoches male - they look female at birth and male later, with me it was the reverse, male for most of my life, female since the change hit in 2005. But as I always had a female gender identity, calling me transsexual is close enough.

Some facts about the case:

What we definitely know that can be adduced in evidence:

The accused was found in possession of the victim's money, creditcards, various electrical items, cellphone and car. He had fraudulently used the victim's credit card.

The accused was known from forensic evidence to have been in the apartment at the time of the killing.

The accused stated over a phone to his girlfriend that "he had made a mistake, and had to move on" and that "gay things need to die".

That's about it. The accused confession cannot be used in evidence, neither can the fact that he belongs to a homophobic gang, and that he has committed a number of similar robberies (though without violence) before.

According to the (now suppressed) confession, the victim performed oral sex on him the previous day, but remained dressed and they slept in separate rooms.

While the victim was away, the next day, the accused found several photos that made him suspicious. When the victim returned, he deliberately sought confirmation of his suspicions by sexually assaulting her - grabbing her crotch. He then battered her into immobility when his suspicions had been confirmed. He covered the body with a blanket.

He then went about robbing the apartment, and calmly cleaning up evidence of his presence. When the critically injured victim "started to sit up and gurgle", he then took a fire extinguisher to deliberately finish her off with repeated blows to the head.

He then continued to take everything of value, and then as the victim was not able to prevent it, being deceased, took her car in a felony auto theft.

We only have the accused's word for all that of course.

Contradicting that is extensive evidence that Angie was open about her status, and told everybody about it.

An alternate theory is that the accused stalked her as a victim, deliberately and with pre-meditation killed her because "gay things need to die", and then committed the kind of robbery he was accustomed to commit.

That's it for the facts of the case.

Legal issues leading up to a 1st degree murder charge

1. Because of the deliberate seeking out of provocation, it is denied as a defence - People v. Valdez (183 P.3d 720, Colo.App. 2008)

2. The charge is 1st degree murder, but not necessarily pre-meditated.
"Robbery" in felony murder provision used in generic sense. The term "robbery", as used in the felony murder statute, is to be construed as meaning this type of felony in its generic sense, including all types of robbery as defined in the statutes. People v. Raymer, 626 P.2d 705 (Colo. App. 1980), aff'd, 662 P.2d 1066 (Colo. 1983).

Any resulting death from robbery supports felony murder conviction. Any death that results in the course of any type of robbery may serve as a basis for a felony murder conviction, and all such types of robbery are necessarily merged in a felony murder charge. People v. Raymer, 626 P.2d 705 (Colo. App. 1980), aff'd, 662 P.2d 1066 (Colo. 1983).
Felony murder is 1st degree murder regardless of degree of pre-meditation.

3. That the accused has admitted that he returned after beating the victim into a coma and after cleaning up the evidence, to deliberately finish her off meets the criterion of pre-meditation.
The element of deliberation requires that the decision to commit the act is made after the exercise of reflection and judgment concerning the act; however, the length of time required for deliberation need not be long. People v. District Court, 779 P.2d 385 (Colo. 1989).
That the killing blows were struck in the course of "tidying up the evidence" and thus plausibly in order to eliminate a witness is significant.

I Am Not A Lawyer by the way. Just a Rocket Scientist who has worked on legal databases before.

Now given the number of people commenting who would vote to acquit, and that it only takes one or two for a hung jury, I consider any conviction for killing problematic. The "Trans Panic" defence has worked many times in the past. In practice, it means that an armed robber could enter my house, kill me, take all my goods, and then in the unlikely event they were caught, claim "trans-panic" as a defence with an excellent chance of escaping conviction. I of course, being dead, would be unable to testify that no sexual relations had taken place - assuming rape wasn't involved too, as it so often is.

That my biology is female is irrelevant, as I used to look more male than female at one time, and my birth certificate (a historical document I can't have altered) says "boy". No matter what my citizenship records, passports, or testimony from my OB/GYN would say to the contrary.

If asked "what sex are you" by Mr Kopel, I'd have to answer that that question depends on both jurisdiction and context. For example, my UK Birth Certificate says "boy" but my UK passport says "F". If asked again, I'd answer "A woman with a rare and heartbreaking medical history."

Now the question of "hate crimes". To me, 3 elements must be present. The first is that there be a crime of violence to person or property in and of itself. The second is that "no reasonable person" could deny that a probable effect of the crime would be to terrorise a particular enumerable group. Third is that there must have been a history of such acts of terror against this enumerable group such that society has a compelling interest in giving them a special status to act as a deterrant.

The chance of an average American citizen dying by being murdered is 1 in 18,000
The chance of a transsexual American citizen dying by being murdered is 1 in 1100 (but see below)
The chance of a transsexual black or latina woman who is an American citizen dying by being murdered appears to be 1 in 8.

As transgendered people are not covered by Federal "hate crimes" legislation, the FBI does not keep figures, and so the count has been gathered by enumerating newspaper reports, and comparing them to the official figures for rates of transsexuality in the USA. We have reason to believe those rates are undercounts, so the situation may not be as bad as it looks. Perhaps 1 in 40 rather than 1 in 8.

Even if these figures are out by a factor of 2, then there is an excellent case based on murder rate alone that transsexual people should be a protected class for the purpose of "hate crime" legislation, if anyone is!

Finally, to Angie's legal sex. While she would be counted as female in a number of jurisdictions, and from a biological standpoint, her neuro-anatomy was female even if some parts of her body were not, I think she'd be classed as male in Colorado until she was post-operative.

The situation is complicated inasmuch as in order to qualify for surgery, the patient must live "full time" in the target gender for at least a year. If sexual relations are engaged in during that period, they must be in the target gender role, or the time starts over again - and surgery may be refused outright if this condition is broken. That is in the medical "Standards of Care".

My opinions of Mr Koppel's remarks are better left unsaid. I believe them to be based on a lack of knowledge about the subject. I am very glad though that he thought the issue worth mentioning, and I'd like to see more coverage of the sometimes amazingly idiotic and insane legal decisions regarding transsexual people.

As was said by Ohio Judge Cristley in a dissenting opinion in "In Re Marriage of Nash"

"A person reading the above examples of legislation and judicial decision making would be appalled at the generalizations and outright ignorance used by courts and legislatures to justify obviously unconstitutional laws."
4.14.2009 8:39am
Zoe E Brain (mail) (www):
AC - some of us look pretty. Others pretty dreadful. Only about 1 in 10 make no secret of their status. Mostly because they can't, but some like me have "passing privilege" and could "go full stealth" if we wanted to.

If you want some examples of what transpeople really look like, see:
This gallery of pictures
And are you aware that transmen even exist? That transsexuality affects both the women you're familar with, but also men too? See:
This gallery of pictures

Think about it. You think you can tell "all transwomen" by their physical features, and no doubt for some you can. But if you couldn't, how would you know they were transwomen and not the SFM (standard factory model) rather than the field upgrade? FFS - Facial feminisation surgery - can work wonders.

See for example these before and after shots
4.14.2009 8:51am
Zoe E Brain (mail) (www):
One question for Mr Kopel - if the accused had found pictures showing that the victim may have only been "passing for white", and sexually assaulted her to find out her pubic hair colour... would the victim have been a "criminal", and a person "who perpetrated a sex crime by deception"?

Or would a violent racist reaction be not a mitigating factor, but an exacerbating one?

What about if she "didn't look Jewish"?

How are those cases distinguished? Is it that homophobia/transphobia is acceptable, while racism is not? And if so, why?

Members of the KKK or Stormfront could justifiably feel aggrieved at their unfair treatment in comparison. They would feel just as strongly, and perhaps more so, at "racial defilement". Would not they have good reason to complain that the deception by the victim in not making their status obvious (with a yellow star say) amounted to a "sex crime" too, an even worse one?

Some "perfectly natural and acceptable" feelings deserve to be discouraged. That's why we have things like the Civil Rights Act of 1964.

If "Oh but that's different..." then please make a case as to why, one based on reason rather than your own personal feelings, or even those of a majority of people you know.
4.14.2009 9:22am
Melancton Smith:
Zoe: This is why Pink Pistols filed an Amicus brief in the Heller case. I believe their organization includes transgendered as well as gay, lesbian. They argued the increased chances of being attacked, especially by multiple attackers that GLBT people endure. They cited some pretty horrific cases.

You are underserved by the legal system and must, even more so than non-GLBT people, rely on yourself to defend yourself.
4.14.2009 10:00am
David Chesler (mail) (www):
163 comments, then my 2 cents:
Agreed, using Federal law for an end-run around State double-jeopardy is bad.

Disagreed that there is necessarily a 1st Amendment problem just because the crime is expressive (of "We don't want your kind here.") I'd think that's already been dealt with in that a spoken "Get out of here by sundown or I'll kill you" is also expressive but not protected against any prosecution.

Agreed with A.C. that by the time you get to murder, enhancements for hate crime (hate-of-group as motivation) ought to be overwhelmed by the punishment for the murder itself.

Disagree that non-conviction is dispositive: If a homeowner shoots a burglar (in a classic sense) we wouldn't say "You can't say that the person who broke into your house and tied up your son and was carrying his TV with him into your daughter's room wasn't a burglar because he wasn't convicted at the time you killed him."

Interesting question just how deceptive the deception has to be to be criminal, or for the reaction of the deceived to be justified, or understandable. If a woman woke up to find that the burglar who has hours before raped her is asleep next to her, would she be justified in attacking him?

Transgender is a Big Deal in personal sexual relations. Not jusification for murder, but you'd have to be that hypothetical alien, or Osgood Fielding, to write it off to "Nobody's perfect."
4.14.2009 10:47am
einhverfr (mail) (www):
Ok. Here is a hypothetical (unanswerable according to case law afaics, but possibly answerable from a very close and careful reading of Holwutter and the statute):

Suppose a man (and a pathological liar) meets a woman he is attracted to. The man is well educated but works a relatively low-paying job. He tells the woman that he is a rich lawyer who makes, say 10x what he really makes. He then carries on this ruse for a while, they start to date, and he starts mentioning the word "marriage."

She, believing that he will be able to take care of her and that he is serious about the relationship invites him to her apartment and they have sexual relations. Then she finds out the truth and runs to the police alleging sexual assault. Sure the guy is a real jerk, etc. but is this sexual assault? In fact, I would suggest that such a ruse would be more serious than what is discussed here.

In carefully reading 18-3-401, 18-3-402, 18-3-404, and 18-1-505 together along with Holwutter, I conclude that this was not sexual assault because the requirement of knowledge for consent in 18-3-401 is the knowledge of the nature of the specific sexual act. Because she understood the nature of the sex act, even if she was entirely deceived about where this sex act would lead, there was no relevant deception. This is separable from passing off as your identical twin to sleep with his wife because of the legal entanglement of sex and marriage.

Similarly, my reading of Colorado suggests that merely engaging in sexual relations with someone who is already somewhat and coming on to you is not sexual assault unless you administered the intoxicant without the woman's consent. Even if she wouldn't have consented while sober, if she consented to getting drunk, sexual consent still is valid.

Or do others disagree with me?
4.14.2009 12:05pm
Roguestage:
@ A.C.:

As for state-level hate crimes laws, I have no trouble with the notion for minor offenses. Painting swastikas on a synagogue IS worse than painting the name of a rock band on a railroad bridge, and having an additional increment of punishment for that offense makes sense.

But by the time you get to rape and murder, the offense itself is grave enough to overwhelm any hate crime component. Hatred based on group membership might be used to show motive, but it doesn't make the rape or murder any worse than one based on individual hatred and a desire for personal revenge. Besides, how do you tell the difference in practice?


I think we're basically on the same page on this point. I would also point out, however, that I've heard a lot of opposition to hate crime laws on the basis that 'there's no higher punishment for murder, rape, etc'; I think that argument is short-sighted in that it misses cases like swastikas on a synagogue that are obviously deserving of greater punishment but unlikely to get it in the absence of a hate crime law.
I also think the argument is a bit of a red herring in other ways - I think others on this thread have gone into the distinctions between 1st and 2d degree murder, as well as the distinction between regular murder and felony murder, so I won't belabor them. The point is that a murder conviction doesn't always result in the maximum punishment available under the law. It depends what kind of murder has been committed. If the hate crime law is sufficient to change 2d-degree murder into felony murder by adding an additional felony charge to a 'gay panic' killing, that is a worthwhile end - unless, of course, you believe that society should continue to say that it is appropriate behavior for young men to fly into a rage and kill other young men who have flirted with them.


The notion of FEDERAL hate crimes law as a way to get ordinary state-law matters into federal court really bothers me. Sorry, folks, sometimes you just have to do your politics state by state. Even if it is boring and un-flashy compared to national efforts.


Since we're on the topic of federal hate crimes laws affecting murder prosecutions, would you have said the same thing about a federal anti-lynching law in the 1950s? Or does the federal government have no interest in providing additional protection to discrete and insular minorities who may not be protected by a biased state judicial or prosecutorial process?
4.14.2009 12:15pm
Ken Arromdee:
How are those cases distinguished? Is it that homophobia/transphobia is acceptable, while racism is not?

Not wanting to have sex with a trans person isn't transphobic, in the same way that not wanting to have sex with a typical man doesn't make one homophobic.
4.14.2009 12:55pm
einhverfr (mail) (www):
Roguestage:

My objections to hate crime law is that the enumerated protected categories are always and will always be incomplete. This will lead to a never-ending culture war over the subject. Hate crime law in its current form is thus bad policy.

I think a far better approach is to enact a intimidation through crime statute. The idea here is to make it broadly illegal to use crime as a means to intimidate people regarding future actions. Arguably the case here (which looks like premeditated murder and robbery) wouldn't fit that category, but painting swastikas on a synagogue would.

I would propose that the following components be a part of such future law:

1) The act must be considered a crime against a person or property on another basis first.

2) The act must be done in a way as to "send a message" to the target of that crime (murder can't send a message to the target), or to a discrete group of people.

3) Discrete groups of people may include social classifications (gays, latinos, men, women, etc), discrete communities (i.e. "everyone who attends Columbine High School"), professions (i.e. physicians in abortion clinics), etc. All that is necessary is to identify a group of people targeted for that requirement.

THe above definitions would include most (though not everything) that goes into hate crime legislation today, and it would ensure better social equality as well as avoiding entirely the special rights debate.
4.14.2009 1:44pm
My Middle Name Is Ralph:

The notion of FEDERAL hate crimes law as a way to get ordinary state-law matters into federal court really bothers me. Sorry, folks, sometimes you just have to do your politics state by state. Even if it is boring and un-flashy compared to national efforts.


I support hate crimes legislation but I'm skeptical about federal legislation as well. We should generally allow states to handle matters of crime and punishment unless there's a good reason not to. I haven't heard what that reason might be for a federal hate crimes law.
4.14.2009 2:07pm
Jim at FSU (mail):
I'm not afraid of dogs, but I would put up quite a struggle if you tried to make me have sex with one.
4.14.2009 2:24pm
einhverfr (mail) (www):
Ken Arromdee:

Is not wanting to have sex with a black person racist?
4.14.2009 3:18pm
mooglar (mail) (www):
Bob from Ohio:


You are wrong. Within psychological and medical circles your view is not always winning.

The second sentence does not support the initial conclusion. The fact that my view is not "winning" does not make it wrong.

The victim here was mentally ill and medical circles are just enabling delusions like he had when they invent "transgender" theories.


I suspect that you believe there is a simple, clear distinction between whether someone is male or female because, for you, it is simple and clear. Like me, I'm guessing you are biologically male, with male genitalia and secondary sexual characteristics, and further are mentally male, in that your self-identity is male and you emotionally identify yourself as male. When that is the case, of course the question of gender is a simple one. Especially when you happen to be in the majority of those in your species or culture.

But consider that you are also human. (I presume... you never know on the Internets...) One of the traits humans, as a whole, with obviously notable exceptions, have that most animals do not is that of empathy. The ability, if one so chooses, to put one in another's place and try to understand things from another perspective. I know that many of the commenters in this thread who have denigrated Zapata and her choices are capable of empathy, for they have shown great empathy for Andrade and how it would feel to discover a sexual partner was a transgendered female. But that's a facile level of empathy... it requires a straight male who would not knowingly choose to be intimate with a transgendered female to imagine himself in Andrade's situation, not to imagine himself as someone else.

A more difficult exercise is to imagine one's self if one were different, not just in a hypothetical scenario. In this case, that exercise is to imagine that one's internal feelings with regard to sex tell him (prior to becoming transgendered) that he is actually female. That he is in the wrong body. It's difficult to imagine, when one's internal barometer and external physical form coincide, but can imagine if they didn't? How confusing and upsetting would that be? It's not as simple as just thinking to one's self, "I'm a guy, I should just be a guy," because his internal compass, the one in his mind, is telling him just as strongly that he is female as mine or yours does that you are male. If I magically woke up as a woman tomorrow, a la Kafka's "The Metamorphosis," I would have a very difficult time adjusting, because I feel male. I can't just switch it so easily. And, I suspect, neither could Zapata.

It's easy for you and me. But consider that it wouldn't and isn't so easy for someone whose mind is a different gender than his or her body. It happens, and I doubt it is a choice rather than a fact just as your and my maleness is a fact to us.

Consider this: do you believe phantom limb syndrome is real? When a person with phantom limb syndrome complains of pain in the phantom limb, is that pain real? If you believe it is, if you believe that a person can experience physical pain in a limb that doesn't exist, then you believe that the mind can be at odds with the body. That the mind can perceive itself differently than its external physical form would dictate. If you accept that sufferers of phantom limb syndrome experience real pain, then it is no leap at all to accept that someone could mentally be aligned as a different gender than his or her physical body.

Was Zapata "mentally ill?" I suppose it depends on how we define mental illness, which is no easy task. Certainly, it does not simply end the discussion as you would like it to. Even if we accept that something is "wrong" with someone whose mind is of a different gender than his or her body, what does that matter if it can't be "cured?" To simply label it as a "mental illness" does not make it go away or change the fact that the person is mentally a different gender than his or her body. Your obvious solution, by labeling it an "illness," is that he or she should be encouraged to accept the gender of his or her physical body, as if the gender of one's mind can be wrong but the gender of one's body cannot. But I suspect you want to label transgenders as being the gender of their bodies because it is easy and simple for you, and it makes you more comfortable, without regard to what is best for the transgendered person. Because, if you listen to what the transgendered have to say, it is clear that they are in the wrong body rather than the wrong mind, and in any case, one can (with greater or lesser success) more easily change one's body's gender than one's minds, at least right now.

I should note, however, that I do not accept that the transgendered are "mentally ill." There is a problem, a disconnect between body and mind, but to assume that this constitutes a mental illness rather than a physical one is begging the question. Is a person with phantom limb syndrome experiencing pain in a missing limb simply "delusional," or are they experience actual distress regardless of whether it comes from a real limb or not? Because there really isn't much if any difference between that and someone who is transgendered. Their minds are oriented to a different gender than their bodies. That is a real fact. They aren't imagining that their mind is of a different gender than their body any more than a sufferer of phantom limb pain is just imagining the pain. It is real. A transgender person would be delusional if he or she believed that his or her body was a different sex than it physically is, but his or her mind is a different matter.
4.14.2009 3:29pm
A.C.:
To whoever it was who raised the federal anti-lynching analogy...

The south in the 50s was bizarre. Existing laws were being violated with impunity, the governments were ignoring the fact (if not participating in it), and the people most closely concerned were prohibited from organizing or even voting to correct the problem. The federal government pretty much had to step in there, as an emergency measure.

I don't see those conditions existing nowadays, at least not with respect to murder. Rape is trickier because of proof issues, but I don't think handling it federally does anything to solve those problems. And pretty much everyone is free to organize, fundraise, and vote. No reason not to do it at the state level.
4.14.2009 5:10pm
DennisN (mail):
@einhverfr

Is not wanting to have sex with a black person racist?


Does it matter? Is it significantly different from "Gentlemen prefer Blondes?"

I think that everyone is racist to some extent. And we all compensate (or overcompensate) for it to some extent. The problem rises when racism is used to oppress others.
4.14.2009 6:02pm
einhverfr (mail) (www):
DennisN:

I don't think preferring fair-skinned blonds to black folk is racist in normal senses.

However, I would conclude that beating your girlfriend to death because you discovered she had two black grandparents WOULD be racist :-).

I was trying to show how the difference of "I don't want to have sex with X" is different from "I hate/am afraid of X."
4.14.2009 6:20pm
Harvey Mosley (mail):
Even if Andrade had "only" beaten Zapata to death in a fit of rage, I think a second degree murder charge is appropriate. Committing robbery and going back to finish the job make it first degree murder.

It appears to me that a transgendered person who still has externally visible sex organs of the previous gender has engaged in consent by deception if that person does not tell the prospective partner at some point prior to sexual contact. This does not justify murder. It doesn't even justify assault. Violently pushing the transgendered person away might be justifiable, if it was a reaction, and not premeditated. No other physical violence is even conceivably justified, unless it is required to stop an unwanted sexual act in progress.

If you think this isn't covered by the consent by deception provision, what would be? If you say this doesn't involve the nature of the act, then why can't homosexuals just have sex with people of the opposite gender?
4.14.2009 6:24pm
Hans Bader:
The real problem with the federal hate crimes bill is that it exploits a dangerous loophole in constitutional protections against double jeopardy.

Attorney General Eric Holder has advocated hate-crimes legislation to prosecute people whom state prosecutors refuse to prosecute because of a lack of evidence. To justify broadening federal hate-crimes law, he cited three examples where state prosecutors refused to prosecute, citing a lack of evidence. In each, a federal jury acquitted the accused, finding them not guilty.

Syndicated columnist Jacob Sullum notes that Janet Reno, Clinton's Attorney General, similarly backed the bill as a way of providing a federal "forum" for prosecution if prosecutors fail to obtain a conviction "in the state court."

As Sullum notes, the hate crimes bill exploits a loophole in constitutional protections against double jeopardy, known as the "dual sovereignty" doctrine. The Supreme Court created this loophole in its 5-to-4 Bartkus decision.

Other supporters of the federal hate crimes bill also want to allow people who have been found innocent of a hate crime in state court to be reprosecuted in federal court.

Advocates of a broad federal hate-crimes law have pointed to the Duke Lacrosse case as an example of where federal prosecutors should have stepped in and prosecuted the accused players -- even though the state prosecution in that case was dropped because the defendants were actually innocent, as North Carolina's attorney general conceded, and were falsely accused of rape by a woman with a history of violence (including trying to run over someone with her car) and making false accusations. Supporters of federal hate-crimes legislation like Janet Reno view it as a way of getting around constitutional protections against double jeopardy, by allowing reprosecution in federal court of people who have already been found innocent in state court. Civil libertarians like Wendy Kaminer have criticized it for taking advantage of a loophole in constitutional double-jeopardy protections.

The hate crimes bill would also undermine constitutional federalism safeguards, not just allow people found innocent in state court to be retried in federal court.

Supporters of the hate-crimes bill have all sorts of rationalizations for disregarding not-guilty verdicts. Hate-crimes activist Brian Levin, who testified before Congress, claims reprosecutions are needed because local jury pools are biased. NOW Legal Defense Fund told Congress that reprosecutions are appropriate if local prosecutors had "inadequate resources" or were of "questionable effectiveness."

Given the politically-charged nature of many hate-crimes trials, Kimberly Potter of New York University was probably right when she told Congress back in 1998 that if the federal hate crimes bill is enacted, "the acquittal of [hate-crimes] defendants in state court will frequently trigger demands for federal prosecution."

The defendants in the Duke lacrosse case, charged with an interracial rape, were vindicated by DNA evidence. But their detractors, such as former John Edwards staffer Amanda Marcotte (who has repeatedly smeared critics of the federal hate crimes bill as being bigots) and radical activist Alton Maddox (who was involved in the Tawana Brawley hate-crime hoax), continue to insist that they were guilty of hate crimes, and that more hate-crimes laws are needed.

For some people, it seems, hate crimes are so terrible that not even innocence should be a defense. Such people eagerly await passage of the federal hate-crimes bill.
4.14.2009 6:55pm
einhverfr (mail) (www):
Havey Mosley:

If you think this isn't covered by the consent by deception provision, what would be? If you say this doesn't involve the nature of the act, then why can't homosexuals just have sex with people of the opposite gender?


Here would be examples that I think would be deception of the nature of the act:

1) "I am going to give you a massage. Is that OK?" Then using this to try to fondle breasts/genitals. Clearly the nature of the act was not consented to and even if the woman initially went along with it because she wasn't initially sure if it was an accident, no consent.

2) Pretending to be your identical twin brother to have sex with his wife. The implications regarding marriage here were not consented to and fraud was used (sexual contact outside of marriage is not comparable to sexual contact inside marriage). Clear deception of the nature of the act. I am NOT entirely sure what the court would say about whether your twin and his girlfriend were not married, though. It might heavily depend on specific facts involved.

3) Man pretends to be a woman for the purpose of sleeping with a lesbian. Crossdressing here is only a small part of the ruse. Turns out the lesbian is into some more kinky stuff so after he gives her oral sex she agrees to be blindfolded the next time, at which point he penetrates here. No consent, rape. Pure and simple. She consented to oral sex and that was it.

Areas I see as clearly not deceptive under the statute:

1) Pretending to care about the partner more than you do.
2) Pretending to be interested in marriage when you aren't.
3) Pretending to make a significant amount more money than you do.
4) Any other lies outside the scope of the specific act consented to.

So, in my view, pretending to be a wealthy businessman interested in marriage when you are neither wealthy nor interested in marriage (even of the woman ends up pregnant, thinking she can trap either a large financial settlement or marriage out of the guy) is not sufficiently deceptive to qualify because the deception does not impact the nature of the act.

So what makes the difference between a woman having (vaginal) sex with someone she thinks is wealthy and interested in marriage but isn't, and a man having oral sex with a person who lives life as a woman but still has male genitalia? I don't think the nature of the act is in question in either case.

Furthermore if you interpret this statute in this way, where do you draw the line? Sexual contact can include fondling breasts through clothing. Does this mean you have to be fully up front before making out because, if the guy touches the transgendered woman's breasts during the making out SHE is guilty of a misdemeanor?
4.14.2009 7:32pm
Bonze Saunders (mail):
Consider this hypothetical crime, where all omitted particulars are assumed to be the same as the real crime:

Allen, a neo-Nazi, meets Angie. After sex, he discovers, to his horror, evidence that Angie is Jewish, and then beats her to death. On his arrest, he states that "she tricked me into believing she was Aryan by dying her hair blonde." While in jail, he states to his girlfriend "Jewish things deserve to die." His lawyer is prepared to deliver a "Jewish panic" defense.

Now the hypothetical Allen is every bit as "traumatized" by engaging in sex with a "subhuman" as the real Allen. Is this a mitigating factor, or an aggravating factor?
4.14.2009 9:06pm
Zoe E Brain (mail) (www):
Bonze Sanders - exactly my point.

I would really like to hear Mr Kopel's answer to your question. I consider it likely the matter would give him pause.
4.15.2009 12:34am
Zoe E Brain (mail) (www):
A.C.
Existing laws were being violated with impunity, the governments were ignoring the fact (if not participating in it), and the people most closely concerned were prohibited from organizing or even voting to correct the problem.

Existing laws violated? Check.
Governments ignoring the fact or participating in it? Check.

The difference is that while those most closely concerned are not prohibited from organising or voting to correct the problem, their numbers are so small that they may as well be.

Another problem - then and now - is that while many laws are violated with impunity, other blatantly unconstitutional laws are enforced to a minority's detriment. e.g. the Wisconsin Inmate Sex Change Prevention Act, which prohibits not just surgery, but also administration of necessary medication, and even medical examination to diagnose particular conditions. Even the prison medical authorities argue that the costs of not providing treatment greatly exceed the costs of providing it, due to the suicide attempts and other consequential medical issues.

The State's argument is that by preventing any medical examination that would detect heart disease lest they find it and be compelled by medical necessity to treat it, they are not discriminating against heart patients and violating the "equal protection" clause. Because every inmate is treated equally by being denied diagnosis, whether they have heart disease or not.

Sorry, I mean "transsexuality" instead of "heart disease".

As Ohio Judge Christley wrote in the dissenting opinion in In re Marriage of Nash
"A person reading the above examples of legislation and judicial decision making would be appalled at the generalizations and outright ignorance used by courts and legislatures to justify obviously unconstitutional laws."
This is the norm rather than the exception. 20 states have human rights laws prohibiting discrimination against gays, but only 13 of them have the same laws prohibiting discrimination against transsexuals. It's quite legal in just under 2/3 of the US (by population) to deny transsexual people employment, accommodation and services just because they are transsexual. While undergoing medical treatment that would otherwise qualify them for protection under the Americans with Disabilities Act, they are specifically excluded.

The real worry is the murder rate. The average US citizen has 1 chance in 18,000 of dying by being murdered. The average transsexual US citizen has 1 chance in 1,100 of dying by being murdered. And... Transwomen who are Black or Latina (like Angie) have an incredible 1 in 8 chance of dying by being murdered.

These figures are based on official figures for rates of transsexuality, and we have good reason to believe that the rates are undercounts. So the actual figures are probably more like 1 in 5500 and 1 in 40 respectively.

In any event, the rate of violent homicide - often torture-murder in front of witnesses - is actually greater than the rate of lynching of Blacks in the 1920s.

We have a systemic problem here. It would have been far more obvious had the absolute rather than relative rates been higher.
4.15.2009 1:57am
David Chesler (mail) (www):
mooglar:
When a person with phantom limb syndrome complains of pain in the phantom limb, is that pain real? If you believe it is, if you believe that a person can experience physical pain in a limb that doesn't exist, then you believe that the mind can be at odds with the body.

The pain is real, the limb is not.

I can't think of an analogous situation where we categorize people by presence or absence of limbs, but I would object if the owner of the phantom limb insisted that I treat him as I would someone with a physical limb.
4.15.2009 1:16pm
Bonze Saunders (mail):

re: David Kopel's update:

"As applied to sex, 'the nature of the act' certainly includes the sex of person with whom one is performing the act"



This seems like a stretch to me: the nature of the act of fellatio is not at all affected by who performs it. Finding it "pleasurable" or "repugnant" can vary dramatically depending on the preferences of those involved; those preferences in no way alter the nature--"the basic or inherent features"--of the act.
4.15.2009 3:12pm
einhverfr (mail) (www):
Bonze Saunders:

Exactly the point of my hypotheticals above. Well put. Deception I don't think can be reduced to "if I had known, I wouldn't have consented" but has to be very narrowly applied.
4.15.2009 4:33pm
einhverfr (mail) (www):
BTW, it is interesting to compare this discussion on restrained interpretations vs unrestrained interpretations of deceit when it comes to sexual consent with the discussions going on regarding Pierre v. Gonzales in Prof. Kerr's posts. It suggests that Kerr's conclusions regarding his poll are way off the mark :-)
4.15.2009 9:45pm
David Chesler (mail) (www):
Deception ... has to be very narrowly applied.

The concept of a material fact is not new.
4.16.2009 10:52am
Zoe E Brain (mail) (www):
"Prosecuting attorneys said in the days leading up to the two meeting in person, they had exchanged nearly 700 communications.

After meeting, the two went to a traffic court hearing in Greeley in which Angie was identified in court by her previous male name and by male pronouns."

That was at least 36 hours before the slaying.

Of course, had there not been documentary proof, and witnesses to attest to this, then despite the testimony of Angie's friends that she was open about her situation, many would have uncritically accepted the word of a confessed killer rather than consider the mere possibility that a transsexual girl might not have been a "sex criminal".

I will repeat:
In practice, it means that an armed robber could enter my house, kill me, take all my goods, and then in the unlikely event they were caught, claim "trans-panic" as a defence with an excellent chance of escaping conviction. I of course, being dead, would be unable to testify that no sexual relations had taken place - assuming rape wasn't involved too, as it so often is.
I hope that this is a "teachable moment", that will enable people to understand the racism that beset the USA, and for that matter Germany, in the past. The problem was not that it was inhuman monsters perpetrating the persecution. It was people of goodwill, including highly ethical lawyers, who had been so steeped in cultural racism that they didn't even realise what they were doing. I have no doubt that Mr Kepel's views and assumptions would be held by the "vast majority" of people. That does not make them right; rather, it provides the best evidence that Hate Crimes laws are needed. Laws against anti-semitism for example, are most needed and most effective when the majority of people don't see anything particularly wrong with being anti-semitic. And don't even realise they are being. Thus with transphobia.
4.17.2009 3:33am

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.