A judge in Massachusetts may have to decide if a member of a protected group can be guilty of a hate crime against another member of that same group.
It is alleged that the three women who face hate crime charges were walking down the stairs at the Forest Hills station of the Massachusetts Bay Transportation Authority (MBTA) on the evening of Feb. 19. The victim, a 43-year-old male, was walking up the stairs towards them. Prosecutors alleged one of the women and the victim either bumped into or brushed against each other.
The women then turned around, followed the man, and administered a beating that left him with serious injuries including a broken nose. During the course of the punching and kicking, it is alleged the women were yelling homophobic slurs at the victim.
Last Friday, the Suffolk County District Attorney's Office announced the three women were arrested on Thursday by MBTA police and each admitted to the crime. They were all charged with a hate crime. Under Massachusetts law, they face a higher penalty if convicted of a hate crime (10 years) than they would have if they were simply convicted of the assault on the man.
Charged is Felicia Stroud, 18, her sister Erika Stroud, 21, and Lydia Sanford, 20.
As reported by the Boston Herald, their lawyers intend to argue that because they are gay, they cannot be guilty of a hate crime against another gay person. But Jake Wark, a spokesman for the Suffolk County District Attorney said, The defendants' particular sexual orientation or alleged orientation have no bearing on our ability to prosecute for allegedly targeting a person who they believe to be different from them.
Under the Massachusetts General Laws, a hate crime occurs when an assault, battery, or damage to personal property takes place "with the intent to intimidate such person because of such person's race, color, religion, national origin, sexual orientation or disability."
The allegations of the prosecutors fly in the face of the crime being committed because the alleged victim was gay. As the District Attorney's office set out in its press release, the incident occurred because the man's backpack brushed up against or bumped into Felicia Stroud, not because they intended to intimidate him because he appeared to be gay.
Although sexual orientation is a protected class under the law of Massachusetts, sex or gender is not. If the women really are lesbians how does his sexual orientation make him "different from them" as stated by Wark?
The judge may have given some consideration to the strength of the case when he ordered the women released on bail. Although Assistant District Attorney Lindsey Weinstein asked the women be held on cash bail of $5,000 each, bail was set at $100 for Felicia Stroud and $500 each for her sister and Sanford.
The three women are due back in court on March 30.