Can a Hate Crime be committed w/o. being a Crime?

Yesterday, New Jersey's Attorney General, Paula Dow, hailed the indictment of a nineteen year old Rutgers University freshman student who allegedly secretly video taped his gay roommate's romantic encounter with another young man and put the film on the internet. Shortly after this horrific outrage, the gay student killed himself by jumping off the George Washington Bridge. The A.G.'s statement reads: "This indictment is an important step in this heartbreaking case. N.J.'s bias law recognizes the terrible harm caused by acts of bigotry and hatred and imposes harsher punishment on those who commit such crimes." Ok, let me parse this public policy pronouncement, after emphasizing that the death of Tyler Clementi is the most terrible harm his family, friends and community will ever have be suffer, and they all will suffer every single day of their lives.

My objections is to the prosecutor's demand for increased punishment premised on the purported anti-gay motivation of the defendant. Would it be less heinous had the defendant's harassment been based upon his roommate's height, weight, poor complexion or any of a myriad of other personal traits for which petty and mean spirited individuals choose to exploit in an effort to ridicule others.

In my freshman year, attending a very rural southern college, I myself was subjected to "hazing", "harassment"and "ridicule" for what I perceive to this very day, 44 years later, to have been prompted by various fellow student biases - yankee in the south, an obnoxious N.J. yankee in the south, being the two most significant causes which still resonate in my mind. As I am still here (probably as obnoxious as then, but that's another topic), my parents were spared the unbearable grief of the Clementi family. Nonetheless, had I succumbed to the terror, would Equal Justice under Law have been achieved were the culpable defendant(s) given a sentence one half, or one third, or any significantly lesser penalty than anyone who may be convicted for the death of Tyler Clementi. Are the lives of obnoxious New Jerseyians less entitled to the protection and deterrence afforded by our nation's criminal law? I think not.

Now, when the law specially favors group victims, society creates a goodly number of pragmatic obstacles to achieving any justice, let alone equal justice. Just one example of this pernicious consequence - in picking the jury for the Tyler Clementi trial, should gay persons be excluded from the jury pool, or will heterosexuals be perceived to be disqualified to so serve fairly. Just asking ...