"Hate crime" prosecution for flushing Koran down a toilet

[Robert Sheridan]

For elimination purposes, In criminal law, motive and intent are two  
separate animals.  In a murder prosecution, for example, motive is  
not an element.  Intent is.  The prosecution needn't offer, much less  
prove the motive for a homicide, but does need to prove the requisite  
intent to establish murder and manslaughter (voluntary if intent to  
kill, involuntary if accidental, i.e. no criminal intent, just  
dangerous conduct).

My guess is that Mr. S., in the news article, has a beef against  
certain people acting in what they say is in support of, or justified  
in the name of, the Koran, so he does the non-arson equivalent of  
destroying or otherwise desecrating his personal copy of it, which  
may be equally inflammatory, to Muslims, just as the Mohammed cartoon  
issue was, out of Denmark awhile back.  I don't see any crime here.   
Blasphemy is no longer a crime in the U.S.  He may have accidentally  
backed up the drain line, but that's probably a civil tort, not a  
crime, assuming he didn't intend to inconvenience anyone.  Prisoners  
in jails frequently clog the sewers with garments, etc., to lash out  
at the authorities.  S. may not have been intending this.

So now we're in  Texas v. Johnson and Cohen v. California territory,  
where expressive conduct is considered protected, such as where  
naughty political speech worn on a jacket in a public place is  
protected.

This is why lawyers in criminal defense practice need to keep current  
on freedom of mind and expression law.  If Nazis can march in Skokie,  
then Mr. S. can deface a Koran, and the more Muslims he offends, the  
more he likes it.  That's the funny thing about FA law, we protect  
what we deplore in order to spare what we value.

What's the name of that FA case in which the defendant in a criminal  
prosecution bad mouths a cop and the Court says cops are supposed to  
be made of sterner stuff?  So it is with Pace U. and its unfortunate  
plumbing.

Seems to me that there's a big difference between destroying a symbol  
and murdering a human being because of his race, religion, ethnic or  
political identity, etc.  Offenses based on the latter might well be  
deemed aggravated by the bad motive in a pluralistic society.   
Offenses based on the former simply (or perhaps not so simply)  
require the subject group (such as Jews in Skokie) to take a more  
philosophical view of American FA law.

rs
sfls

This may be one of those victimless crimes I used to read about.
On Jul 28, 2007, at 2:59 PM, Volokh, Eugene wrote:

> 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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