Legal Aid Clinic for Gender Identity and Sexual Orientation Discrimination

(University of Puerto Rico Law School)

By: Jorge A. Colón Ortiz (translated by the author)

The words "crime" and "hate" seem to be axioms of the same act. In  the legal field, locally as well as internationally, when we refer to a hate crime, the discussion points to the analysis of behavior that is motivated by having a prejudice of an individual's because it belongs or perceive that belongs to a specific group.

The laws which seek to deter people from committing these crimes, the so-called hate crimes,  normally protect the people that became victims by their actual or perceived race, religion, ethnicity, political ideas, disabilities, sexual orientation, gender, gender identity, age, social status, marital status, among other.

In Puerto Rico, the courts have never dealt with a crime motivated by hate, or at least they have never recognized one as such.  However, in recent months, in Puerto Rico has been local and international pressure advocating for the judgment as a hate crime of the recent murder of the 19-year-old Jorge Steven Lopez Mercado.

Coincidentally, on October 28, 2009, the President of the United States, Barack Obama, signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which served the purpose of including into the federal hate crime law of 1969, language regarding the victims gender, sexual orientation, gender identity or disability.

The Act also establishes a wider jurisdiction to investigate federal hate crimes in those states in which they were committed, so charges could be filed under this statute if a state government takes no action on the matter. This provision of the law applies to Puerto Rico as it is a territory of the United States. However, local statutes give our government its own mechanisms to deal with a felony like this.

Under the new Penal Code of Puerto Rico (2004), there is not a specific modality on hate crimes. However, Section 72 (q) of that code, establishes what is considered in law an aggravation of the felony when “hate” constitute a motivation for the perpetration.

This section of the code provides that it will be considered an aggravating factor if "the offense was committed or motivated by prejudice toward and against the victim because of race, color, sex, sexual orientation, [...].” For the purpose of establishing motive as provided in this subsection it will not suffice to prove that the convict has a particular belief, nor to prove that the person convicted for the hate crime merely belonged to a particular organization.”  It is important  to notice  the fact that this provision does not seek to suppress the citizen’s freedom of speech. This aggravating factor of hate crime will not apply when someone makes a racist or homophobic remark, but it does apply instead when there is evidence that an already determined crime is motivated by one of these factors.

It is also important to point out that to prove that the crime was committed by reason of hate of a particular group, the prosecutor has to have the evidence needed to prove that the motivation to commit that specific crime was a feeling animosity against this group or sector.

Therefore, we can argue that in our country there is no such thing as a hate crime but instead, an offense that may be vulnerable to an increased sentence if it is proved that the motivation of the crime was hate of one of the protected groups. In Puerto Rico the maximum sentence is of 99 years which is exactly what the confessed murderer of Jorge Steven Lopez, Juan Martinez Matos, will get if he is found guilty of first degree murder; for obvious reasons this kind of conviction does not undergo an increase in the term. This is why the effect of a prosecution under this aggravating factor is symbolic because it will show us what constitutes the public policy of the state, at least as expressed in legislation, to reject this type of crime, and in favor of the struggle for equality and respect for diversity of human beings.  Nevertheless, if this aggravating factor arises in a felony that doesn’t reach this maximum level of the sentence, it will have a material effect in the increase of the sentence.

Hate crimes are part of world history. Just recall the Holocaust era when millions of Jews were murdered by the Nazi regime as a result of their religion. The motivations of this regime were  apparent and obvious in the speech and it was blatantly open. However, when it is a hate crime which involves only two individuals, the person who wants to prove that it was indeed a hate crime will be required to show the necessary evidence to make it abundantly clear that there was a motivation regarding hate.

Based on how our system works, an aggravating factor such as a "hate crime" would have its greatest impact in the field of judicial proceedings.

Once the court finds the defendant guilty, the prosecutor may ask for permission to show evidence that proves the aggravating factor and thus result in an increased penalty. That provision, contained in Rule 162.4 of the Rules of Criminal Procedure, also provide that a hearing be held if there is a real dispute as to a material fact that requires proof.

It is, then, once the prosecutor believes that the offense constitutes a hate crime, where lies the responsibility of bringing the aggravating factor to life, or instead that it remains only as a legal concept that never comes into life, as just words in the language of the law.

This  way of addressing the misconduct in social behavior that leads these hate crimes to be committed may seem incomplete in principle when it is not given the full name that it deserves: hate crime.  In conclusion, the state's attempt to criminalize such conduct falls short in its goal because we don’t have  specific legislation that addresses the details of the issue and that requires state officials to use the tools necessary to deter potential offenders.

Hate crimes are the result of distorted social education, an endorsement of intolerance, and the exaltation of difference and classification, rather than an embracement  of diversity and inclusion. Although our law provides for these behaviors to be gradually eliminated, the state is the agent responsible for moving the machinery of justice to compel citizens to educate and develop the respect for those around them, who may not share the same thinking and lifestyle.

The confessed murderer of Jorge Steven López will face the reading of accusation on March 8 of this year and the trial will begin on March 30.