"Hate crime" prosecution for flushing Koran down a toilet

Sat Jul 28 16:06:42 PDT 2007

I suppose this has to turn on what those who really know the subject say the Supreme Court has already said definitively.   But surely the argument can be made that purposely immersing one the sacred books (Koran, the Holy Scriptures, the King James Version, etc.) in the toilet is intended t harass and to do so repeatedly is aggravated.    Is there really no competent attorney who could make the case that it is so much as is setting a cross on fire? 

 I do not see how this is that much different from prosecutors' decisions often to go one step beyond what has been done before, in classifying some action as prosecutable.   Is this now how prosecutors make new law out of existing statutes?

Whether there should be a category of actions called "hate" crimes, which one respondent questioned, is another matter.  The statutes do exist.

Matthew Holden, Jr.
Henry L. and Grace M. Doherty Professor Emeritus of Politics, University of Virginia

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-----Original Message-----
From: Volokh, Eugene <VOLOKH at law.ucla.edu>
To: CONLAWPROF at lists.ucla.edu
Sent: Sat, 28 Jul 2007 4:59 pm
Subject: "Hate crime" prosecution for flushing Koran down a toilet

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 
uran in a toilet at Pace University on two separate occasions, police said. 
"Stanislav Shmulevich of Brooklyn was arrested on charges of criminal mischief 
nd aggravated harassment, both hate crimes, police said. It was unclear if he 
as a student at the school. A message left at the Shmulevich home was not 
mmediately returned. 
"The Islamic holy book was found in a toilet at Pace's lower Manhattan campus by 
 teacher on Oct. 13. A student discovered another book in a toilet on Nov. 21, 
olice said...."
    Surely deliberately flushing any book -- or other object that's likely to 
ause a clog -- down another's toilet should indeed be a crime.  But the 
uestion is whether it can be turned into a more serious crime (in New York, 
aised to "one category higher than the specified offense the defendant 
ommitted") because the book is a religion's holy work and the act is thus 
ntended to insult that religion.  I take it that it would be unconstitutional 
o take a perfectly valid sentence for burning objects in a fire danger area and 
nhance it when the burnt object is a flag, or when the intention of the burning 
s to offend or insult people because of their country of citizenship.  Is this 
ny different?
    Note that, unlike in Wisconsin v. Mitchell, Shmulevich isn't being 
rosecuted for selecting a victim because of the victim's race, religion, and 
he like (which would be the case under N.Y. Penal Law sec. 485.05(a)) -- the 
ictim is Pace University.  Rather, the relevant law (N.Y. Penal Law sec. 
85.05(b)) provides (emphasis added), "A person commits a hate crime when he or 
he commits a specified offense and .... intentionally commits the act or acts 
onstituting the offense in whole or in substantial part because of a belief or 
erception regarding the race, color, national origin, ancestry, gender, 
eligion, religious practice, age, disability or sexual orientation of *a 
erson*, regardless of whether the belief or perception is correct."  That 
erson need not be the victim of the crime (again, that would be covered under 
ec. 485.05(b)).  Any thoughts on this?  
    Relatedly, I don't see how "aggravated harassment" would cover this conduct; 
 include the relevant statutory provisions at the end of this message.  What am 
 missing?
    Thanks,
    Eugene

§ 240.30 Aggravated harassment in the second degree

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

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

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

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

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

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

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

 240.31. Aggravated harassment in the first degree

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

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

. Commits the crime of aggravated harassment in the second degree in the manner 
roscribed by the provisions of subdivision three of section 240.30 of this 
rticle and has been previously convicted of the crime of aggravated harassment 
n the second degree for the commission of conduct proscribed by the provisions 
f subdivision three of section 240.30 or he or she has been previously 
onvicted of the crime of aggravated harassment in the first degree within the 
receding ten years; or

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

. Sets on fire a cross in public view.

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