Hate Crimes Laws, Anti-Gay Views, and Public Accountants:

Let me tell you an interesting story, from Ake v. Bureau of Professional & Occupational Affairs (Pa. Commw. Ct. May 20, 2009), and see what you think of it.

1. In 2001, Kevin Allen Ake was living at a YMCA in Illinois, apparently “so that he could assist an elderly member of his church who lived there.” Several months after moving in, he was evicted, in his view because of his “efforts to begin a bible study program at the YMCA.” As a result, he left a bunch of messages on the voice-mail of the YMCA’s executive director, who was a lesbian; he denies that the messages contained explicit threats, but says he “basically shared what the Bible talked about was — with that kind of unnatural lifestyle — about lesbians and homosexuality.”

Ake was then prosecuted and convicted for telephone harassment, which covers telephone calls made “with intent to abuse, threaten or harass.” Two newspaper accounts reported that he was found guilty of leaving threatening messages, but nothing in the Illinois indictment, or in the Pennsylvania opinions that I read, makes it clear — it seems possible that the finding was simply that he made the calls with the intent to “abuse … or harass” rather than with the intent to threaten. In any case, though, telephone harassment, even harassment that isn’t expressly threatening, is a crime; the laws banning it are generally seen as constitutionally permissible speech restrictions (with some exceptions); and the story here is in any event not about that conviction, which may well have been perfectly sound.

2. Now generally speaking, telephone harassment is a misdemeanor. But Ake was apparently motivated at least in part by the executive director’s homosexuality, which made it a felony hate crime. Ake was thus convicted of a felony, and sentenced to 14 days’ in prison, with credit for time served before trial, plus 2½ years’ probation, 200 hours of community service, and a $2000 fine. In February 2005, Ake was discharged from probation.

3. So far, we have a normal “hate crime” story, though one in which the underlying crime was comparatively minor (and consisted of unprotected speech rather than physical violence). But there’s a twist: Ake is an accountant, and in 2007 he applied to reactivate his Pennsylvania CPA license. He had it reactivated despite his felony conviction, but then the State Board of Accountancy moved to revoke the license because of that conviction. And the Board did revoke the license — not just because of the conviction itself (which wouldn’t automatically disqualify him, especially since the conviction didn’t involve the sort of financial misconduct that most directly bears on fitness to be an accountant), but because of his continuing hostility to homosexuals and his perception that he was victimized by homosexuals:

[T]he very nature of Respondent’s offense — involving an irrational hatred of the victim — is plainly a manifestation of a character defect. Although [Ake] had completed all requirements of his criminal sentence as of February 2005, the Board has grave doubts as to whether [Ake] fully rehabilitated.

In his testimony at the formal hearing, [Ake] expressed the view that his conduct in harassing the victim because of her sexual orientation, while regrettable, did not rise to a level requiring criminal sanction. He maintained that he was prosecuted because of the district attorney’s sexual orientation, and he objected to his original mental health counselor because of the counselor’s sexual orientation. These facts powerfully suggest that [Ake] has not reformed his views….

The Board is of the view that the revocation of [Ake’s license] … is warranted … (1) to eliminate the risk of harm that [Ake] … might pose to those with whom he would have professional dealings as a certified public accountant; (2) to deter other certified public accountants who might be tempted to commit felonious acts outside the practice of public accounting in belief that there would be no consequences for their professional credentials; and (3) to provide assurance to the public that only individuals of unquestioned moral character are permitted to be counted among the ranks of certified public accountants.

4. In May, the Pennsylvania Commonwealth Court reversed the Board’s decision, and two weeks ago refused to reconsider its judgment.

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