The alleged attacker of two Sandy teenagers who may have been targeted because of their sexual orientation may now face a hate crime penalty on top of a potential assault charge.
2News Investigates dug deeper into Utah’s Hate Crime laws; whether they have any teeth and how often they are pursued in the courtroom.
JULY 29, 2022 - THE ATTACK
Sandy Police say a car pulled up to Jacob Metcalf and Christian Peacock on Friday, July 29. Those inside began harassing and one started yelling slurs at the two teenagers who told police they were having a long conversation.
"We were just out on the street hugging, says Peacock.
"We were just talking, and this car pulls up and they’re yelling slurs at us and we’re like get out of here and they leave," said Metcalf.
He says they came back about 30 to 45 minutes later and did the same thing. But this time he says, two of them hopped out of the car.
“The other one’s like, you know saying like homophobic stuff and like touching my shoulder and trying to get me to engage,” Metcalf said. “He was touching my shoulder and Christian is like don’t touch him and he’s like gets up in his face and he’s, get out of here like what are you guys doing?”
“One of them takes his shirt off and he’s like flexing, and do I like turn you on, are you attracted to me?” Metcalf said.
Then Sandy Police say the encounter turned violent.
“Then the kid just punched Christian in the face, so I pulled Christian back and started filming the guy and he went back to his car,” Metcalf says.
Metcalf captured some of the fallout and attempts to get the car’s license plate number on his cellphone camera.
One wearing a black t-shirt with a cross on it, is seen on the video blocking the license plate number of the car and refusing to move.
Peacock said, "I was really scared. I felt scared for myself and scared for Jacob because I didn’t know if I was going to be ok."
Peacock says the attack caused him to lose his memory, “I couldn’t remember who Jacob was.”
He added, "I used to be President of the Gay Straight Alliance at my high school and for me to see it happen to other people and like talk to people and learn their experiences like, I couldn’t imagine what it would be like for me to experience it. And when I actually had it happen to me, I was just at a loss for words."
The seventeen-year-old seen hurling those homophobic slurs was arrested by Sandy police the next day.
ALLEGED VICTIM SAYS ATTACKER WAS UNAPOLOGETIC
He didn’t apologize, he didn’t say anything.
“He didn’t say anything to me, he didn’t see the police or anything, so it was like I was expecting him to say something,” Peacock continued. “He called my sister cause he got her number and called her like his mom probably persuaded him into coming over and talking and he came over but just didn’t say anything and that’s when the police came.
“He actually came over to like my house the next day and that’s when he got arrested by the cops,” Peacock said. “We were like 10 feet away from each other.”
HATE CRIME DATA
TheUtah Department of Public Safety’s Bureau of Criminal Identification (BCI) makes crime data available online with interactive dashboards. It allows you to view data compiled from law enforcement agencies. It is updated monthly. However, hate crime data appears only through May of 2022.
According to the Bureau, 22 of the total 72 hate crimes reported in 2020 were targeted toward the LGBTQ community. In 2021, it was 40 of the 137. And this year, that number is 16 out of the 68 total reported so far.
“A TOOTHLESS TIGER”
New hate crime legislation was passed in 2019 and 2020. However, the old law on the books was characterized as a “toothless tiger” by Salt Lake County District Attorney Sim Gill.
“We had a hate crime legislation on the books, but it was ineffective,” Gill told 2News Investigates. “I call it a toothless tiger because it was a bill that prosecutors could not use.”
UTAH HATE CRIME LAWS
There are two laws currently on the books. The main law called “Penalty for hate crimes- Civil rights violation” enhances penalties for certain misdemeanor level offenses. The second law is known as the “Victim targeting penalty enhancement.”
The first law enhances penalties for certain misdemeanor level offenses that are committed. However, in order to enhance the penalties the prosecution has to show that these primary offenses were committed with the "intent to intimidate or terrorize." And what that means under the statute, is that it's an act which causes the person to fear for his physical safety or damages the property of that person or another.
2News Investigates sought out a criminal defense attorney who knows about Utah’s hate crime laws. Mark Moffat has 35 years of experience representing criminal defendants.
Moffat says, "The statute goes further. The statute requires an additional requirement and that is that the act must be accompanied with the intent to cause or has the effect of causing a person to reasonably fear to freely exercise or enjoy rights that are secured by the Utah or Federal Constitution."
Moffat could not speak to the Sandy case but was very well aware of it. He said, “A lot of times, these crimes have sensational facts right, I mean the case in Sandy, I mean you look at that and you know, those can be sensational facts. But other times they may not be in the wheelhouse, or in what is anticipated in terms of the types of offenses that you would see prosecuted as hate crimes and so that’s our concern.”
18 PERSONAL ATTRIBUTES
The second statute known as the victim targeting law has eighteen categories of personal attributes that could lead to an enhanced penalty. It includes standard categories you would expect like race, ethnicity, gender, religion, and sexual orientation. But others you might not expect have been included in the statute, such as law enforcement officers, correctional officers, members of the military, and emergency responders.
The law also includes matriculation, which means that if you target somebody because they go to a particular school or university “then that can be an enhanced penalty,” according to Moffat. “I thought I knew what matriculation means, I looked it up, and it’s if you matriculate at a university.”
Moffat also says enhancement due the matriculation can also be used in other types of cases.
“I can remember when I was in high school and there were rival high schools that we would play football against. There was always before these big rivalry games somebody doing something to either, you know, paint another school your school colors,” Moffat explains. “Those can all now be enhanced because of this particular statute.”
DECIDING WHEN TO CHARGE
What’s more, it is up to prosecutors to use prosecutorial discretion to decide which cases to charge and then, if the defendant will face an enhanced penalty in accordance with the victim targeting statute.
“When you look at the number of categories of attributes that another person can possess, the ability to use it as a tool to increase penalties, I don’t want to say limitless, but it’s very, very broad and that causes us concern," Moffat said.
“The vast majority of the prosecutors that I work with take their job seriously and exercise prosecutorial discretion appropriately, a lot of them don’t,” Moffat told 2News Investigates.
This can be problematic for the accused, especially when it is used as a bargaining chip during plea negotiations. Moffat says when statutes are broad like the two regarding hate crimes, they almost lend themselves to such abuse.
Halloran said, "I believe what you’re telling me is that it hurts the defendant?"
"It does," Moffat said. "When you’re negotiating a case you start out at a particular level. If that level is increased because a prosecutor has chosen to charge the offense as a targeting offense or a hate crimes offense, then it changes the negotiation dynamic in a way that is not favorable to those who are charged with crimes."
SALT LAKE COUNTY DISTRICT ATTORNEY RESPONDS TO CRITICISMS
Salt Lake County District Attorney Sim Gill says that he understands the objections raised “because this statute is certainly more comprehensive, more inclusive than other statutes around the country are.” He adds, “But that was at the will of the legislature that's what they wanted. I suspect some aspects of it may get tested.”
“The defense bar would like to see these statutes more carefully crafted,” according to Moffat.
To that end Gill said, "I can understand what some of their concerns might be but, as this was written one of the provisions that was put in there that should any part of this law found to be unconstitutional, that part would be removed from the statute but the spirit and the intent of the original legislation would not be."
He went on to say, "Is it the perfect statute, no. But it is much better than what we had which was nothing before."
He also mentioned that the newer laws are causing more potential victims to come forward. "For the first time since this law went into effect we have more reports of it. When you talk about hate crime it's one of the most, there are two realities to it, one which is officially reported and what really happens, because a lot of people would never report it because they didn't feel like there was a mechanism that would give them accountability."
THE SANDY CASE
Gill said that he could not speak specifically about Jacob Metcalf and Christian Peacock’s case. But went on to say:
“Well sometimes kids are just being kids, but other times kids harm other kids and when there is real harm, when there is real injury, when there is real terror that is passed as a result of our conduct then there needs to be appropriate accountability.”
Since the new hate crime laws went into effect, Gill’s office has filed eight cases using the victim selection enhancement, three felony aggravated assaults and five misdemeanor assaults.
KUTV Intern Michael Gribbon contributed to this story