Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Boston Area College Student Arrested For “Hate Crime” Assault On The Cape

Eric P., a college student from Winthrop (hereinafter, the “Defendant”) was apparently vacationing on Cape Cod last month. His souvenirs from the trip include an arrest record and a relationship with a criminal defense attorney.

You see, the Defendant had a little trouble in Provincetown. According to law enforcement, he approached two women in the after midnight hours in front of the Post Office Café’ and Cabaret on Commercial Street, using slurs to refer to men he assumed to be gay. He apparently followed up his impressive verbiage by pushing one of the women through a window, breaking the window and causing minor injuries to the women necessitating stitches. He is also accused of punching the women in the stomach and calling them “faggots”. According to reports, both women required medical attention.

He now faces various assault charges in connection to what has been called an anti-gay attack on the woman.

The Defendant did not make it too far after the assault, however. An angry mob reportedly formed around him as he was being arrested.

The Defendant, who had been visiting with his mother who lived near the crime scene, had apparently been drinking. In fact, authorities say that he had been ejected from the Vixen nightclub before the attack.

Would it surprise you to hear that the arrest did not go too smoothly? By the time he got to Orleans District Court, he not only faced the felony hate-crime assault charges, but also charges of resisting arrest and assaulting a police officer. He has been accused of spitting at one officer and kicking another.

Rounding out his visit to the criminal justice system, the Defendant also faces charges of assault and battery with a dangerous weapon (to wit: the window), wanton destruction of property worth more than $250 and disorderly conduct according to the police.

The defendant’s attorney has offered the explanation that it was not really his client’s fault. He blamed the overuse of alcohol for actions that he called “completely out of character.”

Maybe. But then again, voluntary intoxication is not a defense for assault under Massachusetts law.

Attorney Sam’s Take:

We have discussed the issue of voluntary intoxication before. It does not matter whether said intoxication is because of drugs or alcohol. Generally, it is not a defense to crime. The exception to this is a crime that requires “specific intent” and the defense is that the accused was not in condition to form that intent. But, “Man, I got so wasted last night I did not know what I was doing”, does not reach the mark in assault and battery cases.

We no longer live in a society in which one’s actions are all that matter. The surrounding circumstances of a crime, especially violent crimes, are not only taken into account, but also raise the offense itself to a higher level.

While it is still legal to be anti-gay, anti-Semitic or racist, if such feelings form the rationale for an illegal act, the matter is given special attention. It is a similar situation to domestic violence cases where an assault in the home is treated more seriously than an assault occurring on the street between two virtual strangers.

You may agree with this development or disagree with it. But it exists and you ignore it at your peril.

“Hey, Sam”, you call out. “This may surprise you, but my friends and I don’t go out to clubs and beat up people because of their race, religion or sexual preference. Why are you telling me this?”

Because the other realities of the criminal justice system are still in effect too. In other words, the sensitivity to these bias issues, together with the “what if he goes out and kills somebody” approach to crime which seems to motivate the Commonwealth quite often, make for very precarious surrounding circumstances.

Sometimes, people do get into a fight. Sometimes people do say very ugly things in anger. And sometimes people are standing in the wrong place at the wrong time.

For example, what if the Defendant had been bouncing around from ejection to ejection with a couple of pals who watched his tantrums and either did nothing to stop him or perhaps even, in their drunken stupor, chuckled. They would likely be charged with being part of the action. What if the Defendant was having an argument with someone, even a friend, over money and that friend had a different skin color. What if, in the heat of anger, and alcohol, a physical fight ensued between them, during which he let fly with a racial epitaph? In such an example, the fight, or, if you like, attack, had nothing to do with race. I suggest to you that the matter wold be prosecuted as a hate crime.

Therefore, the message is to be wary. Of course, I do not recommend going out and getting into fights or any situation remotely like it. However, there are consequences about which you might not be aware.

Yesterday, the daily Boston Criminal Lawyer Blog discussed an aspect of the recent murder at Harvard University. Of course, there is no allegation of it being a hate crime, but it did help to make the same point. There is little to no evidence, at least that has been revealed, to connect the Accused with the murder. Yet, she is still being penalized by not being able to graduate.

Various circumstances, like being in college, carry with them potential dangers about which most people are unaware. This is why I keep warning you that if you suspect you may be in one of those circumstances, and the long shadow of criminal justice may be approaching, the best thing you can do is to pro-actively contact an experienced criminal defense attorney who can best advise and protect you.

Yes, I know it’s a drag to do that.

But, then again, most people find that being incarcerated or having their future plans dashed against the bars of a jail cell pretty much of a drag too.

The full articles of this story can be found at http://www.thedenverchannel.com/news/19573338/detail.html, http://www.bostonherald.com/news/regional/view/2009_05_25_Man_faces_hate_rap_in_Provincetown/ and http://www.advocate.com/news_detail_ektid85939.asp

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