Honolulu Lite Charles Memminger

Don’t make hate part of the crime

A not-very-bright guy wrote that in 1999 -- me -- when instituting a hate crime law in Hawaii was just a glimmer in the eye of a handful of special-interest groups.

We have a "hate crime" law now, and implementing it is just as problematic as I predicted it would be. The recent brutal "road rage" beating of a haole couple at Waikele, allegedly by a local man and his son -- who called the victims "f--ing haoles" during the assault -- proves again how pointless it was to enact a "hate crime" law.

Why? Because motivation -- why someone commits a crime -- shouldn't matter; just that the crime was committed. Motivation might come up as a consideration in sentencing some idiot, but to force a prosecutor to prove "why" the idiot committed the crime in the first place is an unnecessary burden. You shoot someone with a gun, you should go to prison for shooting someone with a gun. For a long time. The law shouldn't care why you shot them. In many criminal cases it's hard enough to prove that the guy committed the crime, without also having to prove why he did it.

"Short of some dumb criminal actually proclaiming, 'I'm beating you up because you're Catholic' or some such thing, it is nearly impossible to prove a crime is motivated by hate."

That was also in my 1999 column, and the Waikele incident proves the point. Gerald Paakaula's teenage son is accused of calling the 26-year-old Iraq war veteran and his 23-year-old wife "f--ing haoles"* while father and son were beating, stomping and kicking the crap out of them. If you are looking for a hate crime, it shouldn't get much clearer than that. And yet, prosecutors don't agree.

I suspect they realize that it would be a lot easier to get the son convicted based on what they allegedly did without having to prove that he hated the victims.* (U.S. Attorney Ed Kubo, however, is looking into whether the case involves a violation of the victims' federal civil rights, another complicated can of legal worms.)

Let's be honest. The purpose of Hawaii's hate crime law wasn't to convict local people of beating up haoles. It was to prosecute people who attack gays, transvestites, transgenders and others who feel they are targets because of their sexual orientation. (Is there any doubt the Waikele incident would be a hate crime if the victims were gay and the assailants called them "f--ing mahus"?)

Chatter on the local talk radio shows discloses a darker motivation as to why some people don't consider the Waikele case a hate crime. One caller reached all the way back to the notorious 1930s Massie case to show that local people, particularly Hawaiians, have been on the receiving end of murder and mayhem dished out by haoles since before statehood and that the Waikele incident was merely settling an old score.

This dangerous train of thought also arose in the so-called Duke rape case. Some people feel it doesn't matter if the three white guys charged with raping the black stripper actually did the crime, they still deserve to go to jail. So many black Americans have been killed, raped and assaulted by whites throughout history that it's only fair that these defendants pay the price for past misdeeds. Can "trial by proxy" -- where living defendants stand in for long-dead perpetrators of crimes committed 100 years ago -- be far behind?

Arguing that the Waikele assault was somehow historically justified is another weird twist on the whole "hate crime" fad.

From a legal standpoint, we shouldn't care if the father and son hated their victims or not. If they are guilty, convict them of assault and attempted murder and put them in prison for a long time. You might recall that Madam Justice, the one with the sword and scales, wears a blindfold.