"Hate crime" prosecution for flushing Koran down a toilet

Volokh, Eugene VOLOKH at law.ucla.edu
Sat Jul 28 14:59:58 PDT 2007


http://www.newsday.com/news/local/wire/newyork/ny-bc-ny--vandalismquran0727jul27,0,6882662.story

"A 23-year-old man was arrested Friday on hate-crime charges after he threw a Quran in a toilet at Pace University on two separate occasions, police said. 

"Stanislav Shmulevich of Brooklyn was arrested on charges of criminal mischief and aggravated harassment, both hate crimes, police said. It was unclear if he was a student at the school. A message left at the Shmulevich home was not immediately returned. 

"The Islamic holy book was found in a toilet at Pace's lower Manhattan campus by a teacher on Oct. 13. A student discovered another book in a toilet on Nov. 21, police said...."

	Surely deliberately flushing any book -- or other object that's likely to cause a clog -- down another's toilet should indeed be a crime.  But the question is whether it can be turned into a more serious crime (in New York, raised to "one category higher than the specified offense the defendant committed") because the book is a religion's holy work and the act is thus intended to insult that religion.  I take it that it would be unconstitutional to take a perfectly valid sentence for burning objects in a fire danger area and enhance it when the burnt object is a flag, or when the intention of the burning is to offend or insult people because of their country of citizenship.  Is this any different?

	Note that, unlike in Wisconsin v. Mitchell, Shmulevich isn't being prosecuted for selecting a victim because of the victim's race, religion, and the like (which would be the case under N.Y. Penal Law sec. 485.05(a)) -- the victim is Pace University.  Rather, the relevant law (N.Y. Penal Law sec. 485.05(b)) provides (emphasis added), "A person commits a hate crime when he or she commits a specified offense and .... intentionally commits the act or acts constituting the offense in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of *a person*, regardless of whether the belief or perception is correct."  That person need not be the victim of the crime (again, that would be covered under sec. 485.05(b)).  Any thoughts on this?  

	Relatedly, I don't see how "aggravated harassment" would cover this conduct; I include the relevant statutory provisions at the end of this message.  What am I missing?

	Thanks,

	Eugene





§ 240.30 Aggravated harassment in the second degree


A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she:


1. Either (a) communicates with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm; or


(b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm; or


2. Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication; or


3. Strikes, shoves, kicks, or otherwise subjects another person to physical contact, or attempts or threatens to do the same because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct; or


4. Commits the crime of harassment in the first degree and has previously been convicted of the crime of harassment in the first degree as defined by section 240.25 of this article within the preceding ten years.


Aggravated harassment in the second degree is a class A misdemeanor.


§ 240.31. Aggravated harassment in the first degree


A person is guilty of aggravated harassment in the first degree when with intent to harass, annoy, threaten or alarm another person, because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct, he or she:


1. Damages premises primarily used for religious purposes, or acquired pursuant to section six of the religious corporation law and maintained for purposes of religious instruction, and the damage to the premises exceeds fifty dollars; or


2. Commits the crime of aggravated harassment in the second degree in the manner proscribed by the provisions of subdivision three of section 240.30 of this article and has been previously convicted of the crime of aggravated harassment in the second degree for the commission of conduct proscribed by the provisions of subdivision three of section 240.30 or he or she has been previously convicted of the crime of aggravated harassment in the first degree within the preceding ten years; or


3. Etches, paints, draws upon or otherwise places a swastika, commonly exhibited as the emblem of Nazi Germany, on any building or other real property, public or private, owned by any person, firm or corporation or any public agency or instrumentality, without express permission of the owner or operator of such building or real property; or


4. Sets on fire a cross in public view.


Aggravated harassment in the first degree is a class E felony.


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