The investigation into the fatal beating that killed Samuel Luiz in the early morning hours of July 3 is continuing. So far there have been six arrests and all the hypotheses are on the table, according to the Government Delegation in Galicia, which after stating at first that “it was not aware” of the discriminatory motive for the crime, later changed its version. The case has sparked mass protests from the LGTBI community and a public discussion about the weight of homophobia in the events and its possible classification as a hate crime.
VIDEO | Samuel’s crime recordings show that the murder was a mass lynching
These are qualified like this when they are committed for discriminatory reasons: homophobia, transphobia, racism, anti-Semitism, machismo … The victim, says magistrate Carlos Viader, author of a successful Twitter thread on the subject, “it is chosen by the author for its connection, sympathy, affiliation, support or belonging (real or apparent) to a vulnerable group”. Right now, the judge recalls, the investigation into Samuel’s case “is open” and whether or not there was a discriminatory motive “must be conclusively proven by the prosecution.” To resolve it, these crimes require “a thorough evaluation of a mosaic of elements,” explained criminal lawyer Laia Serra in this interview.
These “elements” are the so-called “polarization indicators”, among which are the victim’s membership of the collective, but also being perceived as such, the expressions or insults used during the attack, if it has occurred in a prominent place to the community or a symbolic date (for example, LGTBI Pride), the “apparent gratuitousness” of the violence used “for no other obvious reason”, the symbols or tattoos of the authors, their antecedents or their relationship with certain groups. “The concurrence of one or more factors will be enough to guide the investigation in order to reveal” whether or not this motivation existed, he says. the action protocol of hate crimes for the State Security Forces and Bodies of the Ministry of the Interior.
These are, therefore, some of the elements that should guide the investigation, but since the early hours of July 3, a good part of the debates on the subject have been loaded with arguments and generalized beliefs about this type of attack that, however , are not a reason to rule out the discriminatory motive a priori, neither in this nor in any other case. Here are some of them:
“The attackers did not know he was gay”
It is not a necessary condition that those who perpetrate the attack know the sexual orientation or gender identity of the victim in order for them to be attacked for this reason. In fact, hate crimes are those in which the person is chosen for their “connection, sympathy, affiliation, support or belonging” to the group, according to the Ministry of the Interior. That is, it does not even have to be an LGTBI person; but, in addition, it qualifies the department directed by Fernando Grande-Marlaska, it can be a “real or perceived” belonging. “Many people are attacked for being so without their aggressors knowing anything about them. The simple fact of responding externally to the stereotype of an LGTBI person can motivate LGTBIphobia”, clarifies Charo Alises, head of the Human Rights Commission of the Malaga Bar Association .
There have been cases of couples who have shown affection in public and have been attacked, but also of people attacked simply while walking or on public transport. “They can occur if the aggressors label the victim as LGTBI for what we popularly consider as feather. They interpret it by the way they dress, walk, behave, their tone of voice or external appearance, and for that it may be enough to just see her for a second “, Viader clarifies. That is why during these days numerous testimonies of LGTBI people who relate how the first time they were insulted by calling them “fag” or “tomboy” in their childhood, they did not even know what it meant, they did not call it because of the sex that attracted them, but because of how the rest perceived them.
“I hadn’t come out of the closet”
Related to the above, it does not matter whether or not the victim has come out of the closet or that he has not done it with everyone. Otherwise, says the magistrate, “I would rule out a lot of cases from the outset because there are many people who are not visible.” If the aggressors knew it because they knew each other before, “the test might be easier”, but “that does not mean that it cannot be given in another way.”
“‘Fagot’ is used for anything”
According to Samuel’s friends, the first aggressor snapped at him “stop recording if you don’t want me to kill you, fag”, to which Luiz replied “Fag what?” and received the first blows. Lina, who was accompanying him, reported that she heard how they kicked her shouting “shitty fagot” and other insults. “Indeed, it is a common insult, but when it happens that the victim is gay or maybe his sexual orientation was visible, things change,” says Alises, who is the author of several guides on hate crimes due to LGTBIphobia. In any case, the use of “racist, xenophobic or homophobic expressions or comments” is already an indicator of polarization, according to Interior.
Viader agrees, for whom the insult must be “analyzed in context.” It does not consider the same as an attack in which the attackers use once “fag” and “another 30 insults interspersed, and also the victim is not homosexual or does not seem like it” as the case of Samuel. Even so, he insists on calling for “prudence because there is an ongoing investigation”, but believes that the insults with which Luiz’s friends say he was attacked “are a strong indication” to investigate this point.
“The motive does not matter, it matters that they have murdered him”
However, Alises explains, the motive “is precisely what matters, because it is what leads to qualify some events as a hate crime.” Their significance and the fact that they are thus regulated is “that they not only affect the victim, but also launch a collective message of intolerance to the entire community to which they belong.” “It has been said a lot these days that violence is violence and it does not matter if the victim is gay or not, or white or black, but it is not like that,” Viader believes. In these cases, he points out, there are two affected legal rights: on the one hand, the life or integrity of the people attacked, on the other, “the dignity and coexistence” of the entire group. “With these attacks, the LGTBI community is warned to be careful, they seek to send a warning and cause them not to feel safe,” says the judge.
“The trigger was the mobile phone”
In Samuel’s case, the first attack occurs after the misunderstanding that arises with the video call they were making. The attackers interpret that they are being recorded, according to the young man’s friends, and threaten him. For Viader “it will have to do with the testimony what exactly happened”, but it may happen that at first the aggressor rebukes the victim for that reason and then the discriminatory motive comes into play, the expert voices explain. In any case, Charo Alises points to a factor that reveals the video of the attack that elDiario.es had access to and that shows that it was a lynching in two acts. Samuel manages to get up after a first attack, walks alone and crosses the sidewalk, but they chase him, so it will be key to know if all the aggressors of this second attack were in the first act.
But, in addition, it is not uncommon for hate crimes to occur in contexts of this type, according to Laia Serra. “They are everyday situations. Hatred unfolds when crossing a traffic light wrong, parking the car I don’t know where, leaving a disco and doing I don’t know what, looking in a certain way, throwing a drink, a misunderstanding … There are infinite disagreements and domestic situations that are a pretext to deploy violence for discriminatory reasons “, in the lawyer’s words. Serra assures that it is common to have a “stereotypical image” of hate crimes, understood as “an ultra that goes out to hunt gays”, but that in practice they transcend that scenario.
However, all the voices consulted agree that it is not an easy crime to prove, but that it requires a great burden of proof. The investigation “must be aimed” at discerning whether or not there was this motivation, Alises clarifies, “and therein lies the special difficulty of these crimes, as the motivation is something internal to the person.” Hence, the experts point to the importance of putting the polarization indicators on the table, and carrying out “a deep and intense” investigation when there are suspicions.