There are all kinds of kicks. There are the kicks of children on the playground, there are field goal kicks, there are Rockette kicks, there are high kicks, low kicks and karate kicks. What about Jew kicks?
Up to 37 students are facing possible high school suspensions for participating in ‘Kick a Jew Day’ — an incident where members of Vestal, N.Y.’s Jewish community were kicked by their classmates during school hours.
Should the students face more than suspension? Undoubtedly many of these “Jew kicks” were done with no ill will and may even have been “Jew to Jew” but what about the ones(if any) that were done with malice? Should we just shrug off antisemitism as kids being kids? Could some of these kicks be prosecuted as hate crimes? Let’s break it down starting with the kicks.
Under New York law, kicking someone with an intent to cause bodily injury is an assault. To date , there does not seem to be any indication that any of the kicks were done with intent to injure. I suspect the incidents are being looked at on a case by case basis to determine if any of the participants had such intent. If so, the student could be prosecuted for assault. It however, is not necessary that the kick to take place for a crime to be committed.
What if the intent was simply to frighten the student or put the student in fear of injury from being kicked because the student is Jewish? Under New York law that could be construed as a crime known as “Menacing”. Menacing in the 3rd degree is defined as follows:
A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury.
While the context is going to be the determining factor, suppose a student walks up to another student and says, “You’re a dirty Jew and I’m kicking you!” That could certainly be argued to be menacing under the statute and the child prosecuted. While it would certainly depend on how the facts shake out, I can also see an argument that intent under the Menacing statute could be inferred from the nature of the day itself.
How does that turn into a hate crime? The New York Hate Crimes Act reads as follows:
A person commits a hate crime when he or she commits a specified offense and either:
(a) intentionally selects the person against whom the offense is committed or intended to be committed in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct, or
(b) intentionally commits the act or acts constituting the offense in whole or in substantial part because of a belief of perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct.
Both Assault and Menacing are listed as underlying offenses covered under the Hate Crimes Act.
The 1st hurdle of the Act is cleared as there seems to be little doubt that the students being kicked were targeted because they were Jewish. Seems pretty clear and common sense hence the name of “the day”.
The next hurdle is whether an underlying crime was actually committed. If any of the students could be shown to have participated in Kick A Jew Day in a more aggressive manner than playful fun and actually committed an assault or if the student intended to put a Jewish student in fear of imminent bodily harm, he/she could be charged with “Menacing” and prosecuted under the New York Hate Crimes Act.
Should these kids be prosecuted under the Hate Crimes Act if the requisite elements of Assault or Menacing can be proven? In a vacuum, I would say no but this Kick A Jew day was not done in a vacuum. This is not the 1st Kick a Jew day that as been known to take place. I find the argument that the students got the idea from Southpark unpersuasive and believe it is more likely they learned it from other Kick A Jew Days that have taken place around the country. One can go to Facebook and find Kick A Jew Days or “Punch A Jew In The Face Day” there. Prosecute a couple of these kids for hate crimes and maybe the next student with the bright idea will decide to kick a soccer ball instead of a Jew.