'Boys will be boys'

-- Dave

I'm not sure how this slipped through the cracks, but I recently came across the following hate-crime case out of Bonners Ferry, Idaho, that happened earlier this month. The news is disheartening, to say the least.

The original Bill Morlin story is here. The AP story containing full details of the case, mostly culled from Morlin's reportage, have been scrubbed from the Web, but I have a copy of it, so here it is:

BONNERS FERRY, Idaho (AP) -- Northern Idaho human rights groups are decrying a 20-day sentence given to a man who picked up and then dropped a 17-year-old girl too close to a bonfire and whose words, the groups say, made the actions a hate crime.

"This is not Nazi Germany, it's Idaho in the United States of America," said Marshall Mend, a member of the Kootenai County Task Force on Human Relations.

"We witnessed a shocking miscarriage of justice at the Boundary County Court House," the Boundary County Human Rights Task Force said in a prepared statement.

Brian Todd Davis, 21, was sentenced Wednesday to 20 days on a work detail by visiting 1st District Magistrate Debra Heise.

Davis initially faced a felony aggravated battery complaint before agreeing to a plea bargain Friday and pleading guilty to battery, a simple misdemeanor.

Some witnesses testified at Friday's hearing that at a beer keg party on July 27, Davis picked up Ilaura Fleck and said Fleck's father was Catholic and her mother was Muslim and "that makes you a Jew. All Jews should burn" and then threw Fleck into a bonfire on Katka Mountain in Boundary County.

But Davis' friend, Jock Desmaria, testified that Davis and Fleck "were joking around" and that he saw Davis "set down the victim" near the bonfire after picking her up.

Heise ruled that Fleck wasn't thrown into the fire but fell into the flames after being dropped on a log. She also ruled that a hate crime wasn't involved because Fleck isn't Jewish, The Spokesman-Review reported.

"The words used here are hate-filled but have to be examined in context," Heise said. "The words were stupid. The words were mindless, but this was not a hate crime."

She also said that "boys will be boys."

Heise did not immediately return a telephone call Friday from The Associated Press.

Fleck, who could need reconstructive surgery, suffered first- and second-degree burns on her legs, arm and buttocks.

"I honestly don't believe justice was served here," said Fleck. "What happened to me was a hate crime."

Mend said: "We have a hate crime law, and that was a hate crime when he said to her, 'Jews burn.' It's a hate crime whether she's Jewish or not."

Heise ordered restitution for Fleck's medical bills, which will be determined later.

Davis apologized in a written statement read by his attorney, Bryce W. Powell. Davis declined to comment after the sentencing.

Fleck's father, Joe Fleck, has filed a complaint with the Idaho Bar Association because the attorney he hired works in the same Sandpoint law office where the attorney who defended Davis works. Joe Fleck contends that helped Davis avoid a felony conviction because the defense received information to fight the criminal trial.

Also, Ilaura Fleck said she thought that Davis' sentence was influenced by the fact that Davis' stepfather, Mark Strangio, used to work in law enforcement in Boundary and Bonner counties, where Heise presides. Strangio resigned in May and is now working for a private contractor in Iraq.

Ilaura Fleck's mother, Haleema, said: "Justice has not been served. This is just the beginning. We're not done fighting yet."

Just on the merits of the law, it's clear from the facts of the case that:

A: Fleck was the victim of an assault that caused her to be burned, regardless of the "joking" intent.

B: The perpetrator committed the assault with a bias motivation, regardless whether it was accurate or not.

There are, it should be noted, numerous hate crimes committed annually in which the perpetrator is mistaken in the identity of the victim: non-Jews are assaulted because they were believed to be Jewish, non-Muslims are assaulted for supposedly being Muslim, non-gays are mistakenly assaulted for being gay. Yet these are all specifically hate crimes, not the least reason for which is that the terroristic intent of the crime -- to send a "message" to the larger target community -- is fully intact.

The Spokesman-Review's editorial was on point here:

The sentence was woefully inadequate, regardless of whether Davis' actions and comments meet the criteria for a hate crime. A teenage girl suffered first- and second-degree burns on her legs, arm and buttocks and faces extensive reconstructive surgery as a result of the thuggish assault. Heise's dismissive attitude toward this heinous crime raises serious questions about her judgment. So does her decision that a hate crime didn't occur because the victim wasn't Jewish. The favorable treatment given the witness by local law officers and a possible conflict of interest involving the defense attorney raise more questions.

It's especially unfortunate that this kind of hate crime is varnished over in a place like the Idaho Panhandle, which is still struggling to emerge from the shadow of having been host to the Aryan Nations for over a generation. Even worse is the judge's incredibly poor reasoning, which one hopes will be overturned on appeal, if the victims and the county choose to pursue it.

Rural areas in general, as I argue at length in my second book, Death on the Fourth of July: The Story of a Killing, a Trial, and Hate Crime in America, are particularly vulnerable to hate crimes -- both to playing host to them, and to being victimized by them:

There is a deep irony that resides in the typical response of small towns like Ocean Shores and Aberdeen to the phenomenon of hate crimes: Even as they run in terror-stricken denial from facing up to the crimes -- what Donald Green calls "the embarrassment factor" -- they are themselves chief among the victims.

The main theoretical justification for hate-crime laws -- which typically enhance punishment for crimes committed with a bias motivation -- is that the acts cause greater harm than the simple crimes (say, assault and battery or vandalism) that they resemble. Most of the time, this expanded harm is viewed in the context of the direct victim (who is usually traumatized to a considerably greater extent), the target community (that is, the minorities who typically are terrorized by the crimes), or society at large, which finds its goals of racial equity and social justice undermined by these kinds of acts.

What often goes unremarked, though, is that the communities in which the crimes occur are victimized by them as well. "It is one thing when groups are rightfully identified with the immediate offenders, for example, the association of a bias crime offender who is a member of a Skinhead organization with other members of that organization," observes Frederick Lawrence in Punishing Hate: Bias Crimes Under American Law. "It is quite another when groups [or communities] are wrongfully identified with the immediate offenders. ... In addition to generating concern and anger over lawlessness and the perceived ineffectuality of law enforcement that often follow a parallel crime . . . a single bias crime may ignite intense and long-standing inter-community tensions."

As I explained a little later, rural hate crime also has the broader effect of making those kinds of communities inhospitable to minorities:

The significant difference in the rural and urban response to bias crimes is how it affects the cultural landscape. Rural hate crimes make minorities even more apprehensive about setting foot in such places, just as urban black-on-white hate crimes compound the already common misgivings of whites in the surrounding areas about visiting the city. Likewise, the failure to adequately deal with hate crimes compounds and widens that mistrust, on all sides.

In real-world terms, there is a profound effect arising from the geographical and demographic differences between urban and rural America. The urban world, because it represents the majority of the nation's population, tends to dominate its cultural life. But cities and suburbs represent only a tiny portion of the nation's total landscape. When you get out a map and look at America, its mass is dominated by its cultural rural half. There are many more rural places in the United States than urban or suburban.

When hate crimes erupt, the racial and cultural discord they sow manifests itself in a kind of balkanization of the country: their respective target communities feel unsafe or disinclined to travel there, even in passing. For minorities who are cut off from white rural America, though, this effect is multiplied exponentially by the extent of the landscape which has become off-limits to them. This is what African American journalist Lynne Varner meant when she wrote, "Suddenly, the country seems a lot smaller."

Hate-crime expert Donald Green puts it this way: "If you had to kind of step back and ask, does hate crime pay? You'd say yes." If, as Green argues, this effect is to create "a massive deadweight loss of freedom," then it is incumbent on all Americans, right and left, urban and rural, regular citizens and law-enforcement officials, to take them seriously—to finally, after generations of grappling with the problem, grasp its enormity and bring it to heel. At some point, the debate over hate crimes must evolve beyond meaningless and distorted myths and mature into a serious discussion of how to wisely deal with them, through means that preserve our cherished rights to free speech while simultaneously standing up for the rights of equal opportunity essential for democratic society and against the bullies and thugs who would use violence to harm it.

Unfortunately, there are still small-town judges in places like Idaho who dismiss these kinds of acts as "boys will be boys." One can only hope that the Idaho Attorney General's office sees what's really at issue here.