Group Protection vs Individual Rights

Last April, the world watched in horror as video of Teonna Brown and a juvenile beating Chrissy Polis at a Rosedale McDonald’s aired repeatedly on major national and international media outlets and spread virally over the World Wide Web. In response, a number of local activists, including me, organized a rally against hate and violence. There is no doubt – and it cannot be debated – that the attack on Ms. Polis was brutal, wrong and criminal.

Now, Ms. Brown stands charged with first degree assault, a felony, and a raft of misdemeanor assault charges. She also stands accused of a hate crime based on Ms. Polis’ “gender identity.” Ms. Brown faces these charges in Baltimore County no less, which has the dubious distinction of sending more people to death row – most of them African-American – than any other county in Maryland.

The charge against Ms. Brown flows as a direct consequence of advocacy by Equality Maryland and other GLBT activists, who succeeded in 2005 in passing House Bill 692, which expanded Maryland’s hate crimes statute to include crimes committed because of a victim’s sexual orientation or gender identity. Now, I have never supported hate crimes legislation, so I might quibble with the “victory” achieved in criminalizing even more conduct. But HB 692 has been the law of Maryland since October 1, 2005, and may have been consigned to the dustbin of legislative victories but for Ms. Brown’s evil attack on Ms. Polis.

And this, of course, is where things get sticky. Criminalizing attacks against some victims based on their status – whether that status derives from race, religion sex, or sexual orientation – is problematic for some of us who value freedom of speech and expression, even when we despise and strongly disagree with the speech. When laws single out hate-based crimes from other acts of violence – which are all, of course, hateful – you cannot escape the fact that you are treating perpetrators of violence differently because of the ideas and beliefs they are expressing. Given that we live in a country where our constitution provides as item number one “Freedom of Speech,” there is a certain logic fail to these types of laws.

An analysis of the potential constitutional flaws with the Maryland hate crimes law goes beyond the scope of a column in a local gay paper. But there is another problem with this legislation that bears some discussion, as no doubt it foreshadows the anticipated legislation pushed by Gender Rights Maryland and others to ban discrimination based on “gender identity.”

The hate crime laws – which appears in Maryland’s “Crimes against Public Health, Conduct and ‘Sensibilities’” Title – separately punishes a person who commits a crime or attempts to commit a crime against a person because of that person’s “gender-related identity.” Attacking someone because of their “gender-related identity” will earn you a criminal misdemeanor charge punishable by a maximum 3 years in jail and a $5,000 fine. That’s in addition to whatever underlying offense with which the State has charged you.

Of course, as a lawyer, I have to ask – what’s a “gender-related identity”? The Maryland Code does not further define “gender-related identity.” Looking at the bill jacket, I see that it was meant to protect people who identify as “transgender,” although it could equally be said that the “gender-related identities” might cover cross dressers or men wearing French maid’s costumes for Halloween. Or, perhaps, it means something else? Are we really saying that there are “identities” that go along with our “gender”? And if we are saying that, is it too much to ask to have that spelled out more clearly in a criminal statute that has serious real-life consequences?

As “feel good” as it is to be able to charge a defendant with something extra because of the outrage we feel at what they did, it is a fundamental right to be able to know what charge you are charged with so you can fight it – and with a category as vague as “gender-related identity,” there’s no “there” there. If I cannot tell from a statute what “gender-related identity” means, how can I defend against it when I am charged with this crime – which leads us back to Ms. Brown, who has been housed at the Baltimore County Detention Center since April and celebrated her 19th birthday there in early July.

It is absolutely clear from the video that Ms. Brown beat Ms. Polis in a manner that would warrant conviction under the assault charge. Indeed, Ms. Brown is probably lucky she is not facing attempted murder charges. But it’s unclear from the video that Ms. Brown attacked Ms. Polis because of Ms. Polis’ “gender-related identity.” In the days following the publication of the video, it came out that the confrontation between Ms. Brown and Ms. Polis seemed to have more to do with Ms. Polis talking to Ms. Brown’s boyfriend.

Ms. Brown will stand trial in late August. No doubt we’ll learn more about the details of the assault them. But for now, I have to ask this question – in our desire to correct a perceived problem (i.e., crimes against transgender people), is it ok that we adopt laws that have no meaning or definition? Do you trust the State to come up with what “gender-related identity” means?

I don’t.

Originally appeared in Baltimore OUTloud, Friday 29, July 2011

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