Using Faggot Isn't Anti-Gay, Judge Asserted

Joseph Holladay on July 1, 2009, three days after the assault

Before he laid out his reasons for dismissing the hate crime charges against Driton Nicaj, a now 20-year-old who was indicted on two counts of third degree assault as a hate crime in the 2009 attack on Joseph Holladay, Judge Ronald A. Zweibel turned to his copy of the Oxford Dictionary of the English Language, which was published in 1982, for a definition of the word “faggot,” the slur Nicaj used during the assault.

“[T]he Oxford Dictionary makes no reference to faggot meaning a male homosexual, which is not surprising given that it is not a common slang usage in the United Kingdom,” Zweibel wrote in the December 10, 2009 decision dismissing the charges. “The origin of the term faggot to derogatorily refer to a homosexual male is obscure and subject to much urban legend.”

The gay men, like Holladay, who have heard that word before, during and after an attack know all too well that it comes from prejudice and violence. Its meaning is as clear as the blow from a fist, the wound from a knife or bullet, or the pain that lingers long after the cuts, bruises, and broken bones have healed.

In his 12-page decision, Zweibel spent a page-and-a-half pondering the word “faggot.” When it seemed he would assert that Nicaj’s meaning was unclear, Zweibel concluded that in the United States “a person of ordinary intelligence would take it as a derogatory term for a male homosexual and no reasonable person would infer that respondent was calling the alleged victim a bunch of twigs.”

Nicaj’s assault left Holladay unconscious and put him in the hospital. Roughly 24 hours later, Nicaj attacked two others, also gay men if 2009 press reports are to be believed, with the attacks taking place 30 minutes apart. One of those men had a broken nose and three skull fractures requiring six hours of surgery to insert a metal plate in his head. It is beyond offensive for Zweibel to muse at length on the meaning of “faggot” given what these men endured.

In a deal with the Manhattan district attorney, Nicaj pleaded guilty to the assaults and was sentenced to 45 days in jail and three years on probation. He began his sentence on May 20 and was released on June 9 after accounting for time served and good behavior.

Zweibel also looked like a fool. It did not occur to him that consulting a 28-year-old dictionary is a mistake when one is trying to look clever. “Faggot,” the anti-gay slur, has been among the definitions of that word in the Oxford English Dictionary since 1989 and the 2005 edition of the Oxford American Dictionary has the slur as the first definition of the word.

Just as offensive was Zweibel’s tortured reasoning on what was shown by Nicaj’s use of “faggot” as he committed the assault. Zweibel called it “just typical trash-talking” in his decision. It was not evidence of Nicaj’s motivation or state of mind.

“First, there is no evidence that the alleged victim is a homosexual,” Zweibel wrote. The New York state hate crime statute does not require that the victim be a member of the law’s protected classes, which include sexual orientation. The defendant need only believe that the victim belongs to those classes. How would we know what Nicaj believed? According to Zweibel, what he said during the assault is not evidence of what he was thinking at the time.

“Second, there is no evidence that defendant believed that the alleged victim was a homosexual -- except for the fact that he called him one,” Zweibel wrote.

Saying that this could lead to bizarre cases, Zweibel went on to list fictional cases in which “calling a Jew a wop” or “calling a black person a white Aryan bastard” or “calling an atheist or agnostic a Christian or Islamic fascist” could lead to a prosecutor charging a hate crime.

“The law does not countenance absurd results such as this,” Zweibel wrote.

The problem with American hate crime laws has never been that they lead to “absurd results.” The problem has always been that they are not used by law enforcement and prosecutors. Clearly, we have a problem with some of our more benighted judges as well.