An Example of a Hate Crime - Case Study Example

Case Study: Tom and Larry were on their way to a transvestite party in their guise of ‘Thelma and Louise’. As they were walking to the party, a groupof young men started to follow them and began to shout abuse at them. The gang approached them in a threatening manner and one of the gang (called Oaf) lunged at ‘Thelma’ knocking off her wig and shouting ‘pervert’. ‘Thelma’ punched Oaf causing him to suffer from a fractured jaw. Advice ‘Thelma’ of any offences against the person with which she may be charged and any defenses that she may raise if she is prosecuted. Is this crime a hate crime? Need to say why if so. In the given case, Tom or Thelma’s act of hitting Oaf can apparently be considered as a criminal action, mainly due to the reason that due to such act Thelma has caused serious physical injury to the person. Consequently, if we look deeper into the situation we will also understand from the circumstantial evidences that Tom or Thelma had no particular intention to cause any physical harm to the person unless he has been provoked to act in that manner. Evidences also show that the group of young men approaches them in a “threatening manner” and Oaf, through his verbal abuse and hitting off the wig, has created such situation that was enough for fear provoking and It was quite normal for them to act in a self defensive manner. According to the basic principles of criminal law in the English legal jurisprudence we know that an act, which does not comprise the elements of mens rea, it cannot be said that the act was actually performed with any criminal intention. In this context we find there are two situations, each of which contains the probability of including mens rea. However, it is important at the first place to analyze the actus reus which will lead us to the position of realizing if the acts include elements of criminal mind (mens rea) or not. Famous English jurist Edward Coke, in the context of identifying criminal intention of a person laid down the principle of “actus non facit reum nisi mens sit rea” (Coke, L.3, C.6. Sect. 406) which means, “The act itself does not make a man guilty unless his intentions were so.” (Broom, p. 306) It is from this explanation we come to know that unless a person’s actions incorporate explicit intention to commit such an act that would create harm to another individual, it cannot be said that the person is actually guilty of committing a criminal action. In this context if we see the whole situation we will find that Oaf and his group had the clear intention to harm Tom and Larry. It is because of that reason they were following the two and finally Oaf hurled both verbal and physical abuse first. Observing the magnitude of physical abuse, as inflicted by Oaf, it cannot be said that it has created a great deal of physical injury to Tom but at the same time it also becomes evident that the group actually created such an ambiance that there were sufficient reason for Tom to think that they actually wanted to harm them physically. In this regard, Tom’s action can be viewed as an act of self defense. It actually came out of a desperate repulsion to protect both of them and finally it caused serious physical harm to Oaf. Compared to Oaf, Tom’s action definitely has caused a physical damage to a greater magnitude but the amount of physical harm actually caused cannot be a proper measure to prove that such act actually incorporated a greater deal of criminal intention or mens rea. In one of the leading judgments of English Legal history, Beckford v R [1988] AC 130, it has been held by Lord Griffith that impression of imminent threat is sufficient to for the defendant to take action in order to ensure his security. In the same context he further remarked that, “said "A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike." (“Self Defence Law and Conflict Resolution”, n.d) However, in this context we see the same situation and the only exception being Tom has already been attacked. Additionally, it needs to be mentioned that in another landmark case Palmer v R [1971] AC 814 Lord Morris mentioned, “A person who is being attacked should not be expected to "weigh to a nicety the exact measure of his necessary defensive action". If the jury thought that in the heat of the moment the defendant did what he honestly and instinctively thought was necessary then that would be strong evidence that only reasonable defensive action had been taken.” (“Self Defence Law and Conflict Resolution”, n.d) Such observation is very relevant in this context as we see that Tom’s action has been generated under such circumstance only and at the same time what he has done is honestly for the purpose of self-defense and there has not been any maliciousness in his action. Thus, the principle of crime to hate crime is not applied in this context. Such principle could have been applied only under such situation if Tom would have taken this step with an intention of vengeance in him. The element of reckless action is another element that becomes evident from the activities of both the parties. According to the English legal discipline recklessness can be defined as, ““extreme carelessness regarding an obvious defect or problem.” (Stewart, Warner, Portman, 2008, p. 228) Though a person is careless in commission of a particular act but at the same time it is also possible that such act would incorporate the element of mens rea. Paul Bergman, Sara J. Berman, Sara J. Berman-Barrett explains mens rea as, “Mens rea is Latin for “guilty mind”. The mens rea concept expresses a belief that people should be punished … only when they have acted with an intent or purpose that makes them morally blameworthy.” (Bergman, Berman, Berman-Barrett, 2008, p. 253) In this case, compared to Tom’s action, Oaf and his gang, what they actually were trying to do, incorporated the element of mens rea to a greater extent. There is a possibility that apart from his desperate effort to protect themselves Tom’s punching of Oaf also fused with the intention of “teaching him a good lesson”. Such mentality also can be observed as an example of mens rea but at the same time, it must also be kept in mind that no matter what he has done, Tom was never with the intention of causing any harm to Oaf or to any member of his group. In this context, depending over difference in the magnitude of mens rea, recklessness in the English law has been classified into two categories, namely, Subjective and Objective recklessness. In case of both subjective and objective recklessness, though commission of an act of damage involves elements of mens rea, but at the same time presence of such elements in those acts is quite less compared to than that of the specific intention. Specific intent in English Law incorporates, “the highest level of mens rea. In other words, the defendant must have clearly had this outcome in mind and not committed the offence by accident or carelessness.” (ORiordan, 2002, p. 182) “Subjective, or ‘Cunningham’… recklessness occurs where a defendant is aware of the consequences inherent in a course of conduct yet persists in conscious disregard of the risks or ambivalent as to whether they will eventuate. The defendant does not desire that any harm should result – if s/he did, an intent to cause harm would be present.” (Gobert, Punch, 2003, p. 90) On the other hand, “Objective or ‘Caldwell’ … recklessness does not reject criminal liability based on a subjective awareness of risk. Rather, it extends liability to cases where the risk involved in a course of action would be obvious to a ‘reasonable person’ even if it was not obvious to the particular defendant. The failure of the defendant to direct his his/her thoughts to the possibility of such a risk constitutes the recklessness.” (Gobert, Punch, p. 2003, 90) The kind of act performed by Oaf and his group essentially incorporates the element of ‘mens rea’ mainly because of the fact that they knew what they were up to and what can be its consequences. On the other hand, Tom’s action is mostly impulsive and generated from the spontaneous motivation to defend him and his friend. In this context also Oaf and his group is guiltier in the eyes of law than Tom. As Tom’s punch has caused serious physical injury to Oaf, then depending over Oaf’s allegation against him, Tom can be prosecuted under sec. 18 (Shooting or attempting to shoot, or wounding with intent to do grievous bodily harm) and sec. 20 (Inflicting bodily injury, with or without weapon) of the Offences Against the Person Act, 1861. Sec. 18 of the Act mentions, “Whosoever shall unlawfully and maliciously by any means whatsoever wound or cause any grievous bodily harm to any person, ... with intent, ... to do some ... grievous bodily harm to any person, or with intent to resist or prevent the lawful apprehension or detainer of any person, shall be guilty of felony, and being convicted thereof shall be liable ... to be kept in penal servitude for life ....” (Offences Against the Person Act, 1861) According to sec. 20, “Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanor, and being convicted thereof shall be liable ... to be kept in penal servitude ....” (Offences Against the Person Act, 1861) The harm has been caused unlawfully and it was serious in nature too. It is due to this reason that Tom can be convicted with the punishment of “penal servitude for life.” However, the only possible and strong solution in available in the hands of Tom to avoid such punishment is to prove that his action did not include the element of maliciousness, as it has been specified in both the sections. If, Tom can prove that his action of hitting Oaf was generated completely out of self defense and he never had any premeditated plan of causing him serious physical injury, that will be the only legal defense for him to stop himself being prosecuted. Reference 1. Nottingham, H.F., Hale, M., Butler, C., Hargrave, F., Littleton, T., Coke, E., 1853, The first part of the Institutes of the laws of England: or, A commentary upon Littleton. Not the name of the author only, but of the law itself ..., R. H. Small, Original from: Harvard University 2. Broom, H., 2000, A Selection of Legal Maxims, Classified and Illustrated, The Lawbook Exchange, Ltd. (New Jersey) 3. “Self Defence Law and Conflict Resolution”, n.d., available at: http://good-sense.co.uk/docs/Self-Defence.doc, retrieved on: 11th Aug, 2008 4. Berman-Barrett, S.J., Berman, S.J., Bergman, P., 2008, Paul The Criminal Law Handbook: Know Your Rights, Survive the System, Nolo (Berkeley) 5. Portman, J., Warner, R., Stewart, M., 2008, Every Landlords Legal Guide, Nolo (Berkeley) 6. ORiordan, J., 2002, AS Law for AQA, Heinemann (Toronto) 7. Punch, M., Gobert, J.J., 2003, Rethinking corporate crime, Cambridge: Cambridge University Press 8. “Offences against the Person Act 1861,” 1861 (24 and 25 Vict. C. 100), available at: http://www.cirp.org/library/legal/UKlaw/oap1861/, retrieved on: 11th Aug, 2008 Read More