Was Leslie Jones Victim of a Hate Crime?

Leslie Jones, the SNL comedienne and star of the “Ghostbusters” reboot, recently had her website hacked and iCloud account compromised, releasing “intimate” photos the actress stored in that space.  Personal data was exposed for public view and images of Harambe the gorilla were plastered across the website.  The FBI and Homeland Security are investigating the hack.  Was the hack a “hate crime?”  Mark Shrayber, a former writer for Jezebel and current staffer of the culture site Uproxx, see the issue as “plain and simple.”

Make no mistake: What happened to Jones wasn’t “trolling.” It was a hate crime. Most importantly, what happened to Jones is a terrifying reminder that in the age of the internet, there’s precious little protection for the people most vulnerable to this type of attack, and plenty of people who’ll happily applaud it while spouting clichés about why people should never expect a right to privacy.

Issues of privacy aside, let’s delve into the issue of whether the offense in question is a “hate crime.” Hacking would be considered hypothetically a federal crime because the use of the Internet to facilitate the breach of Jones’ website, so it would involve a “channel…of interstate or foreign commerce.”  That means we plug in the Federal Hate Crime statute, 18 U.S.C. § 249, to determine if the data breach was a hate crime.  Before we go into the actual statute, let’s discuss what constitutes a “hate crime.”

Hate crimes are actually a means for prosecutors to enhance the sentence of an offender because the crime in question affects a certain group of people with immutable characteristics like race, religion, or sexual orientation.  The “enhancement” applies because our society has realized crimes committed against people with these characteristics don’t just suffer the crime alone.  When the crime is committed against one of the “protected” groups under hate crime statutes, it has a disparate impact on the community as a whole.  The harm committed isn’t just suffered by the individual, it directly affects the group of people as a whole against the group or groups to which the person belongs.

Take, for example, the Pulse shooting in Florida.  Omar Mateen’s decision to shoot up a gay nightclub in Florida would be considered a hate crime, because it was a crime that had a disparate impact on the LGBTQ community as a whole.  The use of firearms to maim or kill individuals in the triple digits solely because they love a member of the same sex counts as a hate crime and would be prosecuted as such if Mateen were still alive, since the remaining members of the community and their family members would be on edge following that offense.  An offense of that magnitude would be worthy of a sentencing enhancement under Federal law.

Now that we’ve framed the issue in that context, let’s look at whether the Federal statute considers the hack of Leslie Jones’ personal data, “intimate photos,” and website would be a hate crime.  Section (a)(1) covers race.

Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person—

The “actual or perceived race” is there.  Leslie Jones is a black woman, but she didn’t suffer “bodily injury” through “the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device.”  That’s just part of the statute, though, (a)(2) covers gender, so we might have something present that would cover Shrayber’s claims that make the hack a hate crime.

Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person—

Damn.  There’s that whole “willfully” or “attempts to cause bodily injury” “through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device” again. Looks like from a legal standpoint, the argument of the hack constituting a “hate crime” falls apart.  That’s not good enough for Shrayber, or the experts he cites, who liken the attack as a means of “dehumanizing” Jones because of her status as a successful Hollywood actress of color.  According to San Francisco based therapist Tiffany McClain, the attack was one based out of deep-seated racism.

McLain says the imagery used to assault Jones is a major tell. “The comparison to animals andbeasts,”McLain explains, “was used to justify the practice of slavery. It was used during the civil rights era to explain why people of color should be denied equality.” And it’s being used now to dehumanize Jones, allowing her attackers to not see her as a human being deserving of respect from others.

“If it’s not because she’s black, what is it about? We need to invite that conversation,” McLain says… It may be uncomfortable to consider why Jones is the only star of Ghostbusters to have her physical safety threatened (with Jones’ identifying information published online, it’s not a leap to assume that she must feel unsafe both in public and in her own home). It’s also imperative that we do so in order to make sure that we understand when an attack is based in deep-seated racism.

The cyber attack on Leslie Jones may have been based in “deep-seated racism.”  And it’s understandable one could make a leap that Jones, a public figure with personal information posted for the world to see, could feel unsafe in her home or in public.  It wouldn’t be unreasonable to think Jones, the subject of relentless hate-fueled tweets, might think someone would act on what would normally be considered “trolling” after gaining access to her real-world location.  And whoever hacked Jones’ website could very well be motivated by hate.  Regardless, the cyber-attack itself isn’t a hate crime, no matter how much one might think otherwise.  She suffered no bodily injury through any of the instruments listed in the statute, even though she is a person of color and a woman.  That won’t be enough for folks like Shrayber and McClain, who would prefer their feelings to the actual application of the law.

Many who delve into the law are outraged when they find their experience and feelings doesn’t correlate to actual application of the law.  They feel marginalized, hurt, or oppressed.  It’s at those times we must remember the law is narrowly tailored to fit certain specific circumstances, especially when it comes to protecting the rights of those charged with a crime.  No matter how despicable a crime may be, or how much people hate the defendants, the law is tailored ostensibly to make the burden of proving “hate crime” status to enhance a sentence  harder on the government.  Our feelings don’t make it any easier, and don’t need to come into the equation.  Especially when the target of the public’s hate is you, and you’re standing before a judge answering the question “How do you plead?”