Via Eugene Volokh, the  Wilmington News-Journal reports that the alleged victim of a hate crime is double upset.

Wilmington criminal-defense lawyer Eugene Maurer, who is representing DiDonato, accused Baum of using the incident to seek attention.

“We feel this may have been an opportunity that was seized upon by the young man whereby he could politicize this situation, to draw attention to it,” Maurer said. “I think we’re going to be able to demonstrate in part that may have been part of his motivation.”

Baum called that criticism “terribly offensive.”

“I was a victim of an attack,” Baum said. “I didn’t ask to be attacked. To make that kind of allegation is so insensitive.”

DiDonato is accused of pushing Baum to the floor at a drunken fraternity party because of Baum’s sexual preference.  The defendant argues that he pushed Baum to the floor in the “early morning altercation” having nothing to do with the fact that Baum is gay.  Even gay guys get into beefs sometimes.

Who is telling the truth about the push, and whether any derogatory words were spoken, isn’t know. What is known is that DiDonato’s lawyer has been “accused” of insensitivity in his defense of his client.  Eugene explains:

On the other hand, if the incident was motivated by sexual orientation, and Baum is telling the truth, then the problem with Maurer’s response is that it’s incorrect. Maybe it’s innocently incorrect, if Maurer thinks his theory is right but it’s not. Maybe it’s deliberately false. But in any event, if it’s incorrect it should rightly labeled be as such — but quite regardless of whether Maurer’s statement is “so insensitive.”

This raises an issue that compels recognition, particularly in this time when extraordinary emphasis on hurt feelings has become a primary moving force in our perception of right and wrong.  The only thing missing from Baum’s reaction is calling the defense lawyer, Maurer, a bully for saying hurtful words.

There is a question of whether Baum’s accusation of insensitivity was deliberately irrelevant or merely inarticulate.  That his feelings are hurt by the defense lawyer raising the specter that he’s using his being on the losing end of a drunken push opportunistically, to become a hero of the anti-gay bullying crowd and pursue that agenda, may be accurate. Who can say whether Baum’s feelings are truly hurt?

But so what?

Drawing on the obvious comparison, what of the woman who falsely cries rape?  For a long time now, this was viewed not only as an impossibility, but as a misogynist slur.  No man could accuse of woman of lying about a rape.  Of course, some women did and their accusations were absolutely false, but a mythology arose around the sanctity of womanhood that precluded any man from openly arguing the point.  The man who tried to defend his actions this way was not only rapist (even though the accusation was false), but a woman hating one at that.

Is this going to be the case where an alleged victim of any crime is gay?  If a tussle breaks out on campus, and one of the participants turns out to have a sexual orientation other than straight, will the other person be subject to both a hate crime accusation and, should he dispute that sexual orientation had anything to do with the conduct, a secondary accusation of “insensitivity”?  Will his lawyer be precluded from raising the defense? Should his lawyer limit his defense to that which won’t hurt the victim’s feelings?

This is pretty dangerous turf.  Lawyers defend, but when the defense is over, live to fight another day for another defendant.  As much as they may be willing to do whatever the law allows to zealously represent their client, no one wants to be permanently tarred as a gay-hater any more than a misogynist (or racist, for that matter) as a by-product of presenting a legitimate defense.

While Eugene notes that the claim of insensitivity of the defense is irrelevant to the claim of a hate crime having been committed, that’s a distinction better loved by lawyers than the public.  Few people think that hard or care to separate the relevant from irrelevant.  Words like “insensitivity” from the victim-du-jour carry a punch, often broadcast by the media who seize upon the salacious but irrelevant because it’s fascinating to their readers.  Hate crimes are in. Stories about hate crimes are in. So what if the secondary insensitivity has nothing to do with the hate crime, but with a fair defense as to the motive to lie?

The fear is that this will have a chilling effect on a lawyer’s willingness to raise an insensitive issue in the defense.  Eugene Maurer challenges the allegation that his client gave a damn whether Baum was gay, and that DiDonato never uttered a derogatory word when he pushed Baum down.  Why would Baum lie?  Maurer explains, offering a valid if insensitive explanation for his position.

And now Maurer is insensitive to gays.  A gay hater.  Meet Wilmington criminal defense lawyer, Eugene Maurer, the lawyer who hates gays.

This is absurd, of course.  Maurer’s argument bears no reflection on his feelings toward gays. Or blacks, dolphins or Ford trucks.  It is nothing more than a rational explanation in support of his defense of his client.  And yet the story made the Wilmington News-Journal, and the implication is now hanging in the air for anyone who reads it and everyone who subsequently Google’s Maurer.

That Maurer said what he had to say to defend his client is not merely appropriate, but reflects his dedication to providing a zealous defense.  It says nothing of his being insensitive, and in the atmosphere where insensitivity has taken on a life of its own, the only message here is that Maurer won’t back down from his obligation to save himself from being accused.  He’s done what he has to do.  And he’s done what all of us have to do.

In the defense of a crime, there may be arguments that will hurt the purported victim’s feelings. It’s happened before and it will happen again.  Even in this atmosphere where the crime of hurt feelings has taken on a life of its own, an independent existence of wrongfulness which may well be imputed to the lawyer, our job doesn’t change.  The minute we become concerned about hurting the victim’s feelings, about how any backlash could impact our reputations or standing in the community, we trade off our responsibility for the latest political correctness and abandon our role as criminal defense lawyer.  We cannot defend if we’re worried that someone will call us insensitive.

If Baum is telling the truth about DiDonato’s push being motivated by anti-gay animus, then let DiDonato be damned for that. But there is no secondary insensitivity on Maurer’s part in questioning whether Baum’s claim is false and motivated by a secondary agenda. That’s his job, and there is no shame in his doing it.  Even if it hurts Baum’s feelings again.