PROVIDENCE, RHODE ISLAND - In Superior Court yesterday, lawyer Christopher Millea described the repeated threats and homosexual slurs his client hurled toward her AIDS-afflicted neighbor as "trivial."They were part of a "kindergarten name-calling contest," Millea said, which while offensive to most people, remained examples of constitutionally protected free speech.
Superior Court Judge Netti C. Vogel had another name for it: "hateful conduct," spurred by prejudice, that unlawfully deprived Kenneth W. Potts, of Warren, of his right to live peacefully under the state's Fair Housing Practices Act.
Yesterday, in a decision that gave the attorney general's newly formed Office of Civil Rights Advocate its first victory, Vogel issued an injunction against 33-year-old Theresa R. Deschenes, preventing her from having any intentional contact with Potts, her downstairs neighbor.
"She has intimidated him," the judge said. "She has threatened him with physical violence . . . all connected to his sexual orientation."
Vogel said the civil suit -- the first brought by the advocate's office since the General Assembly established it last year -- reminded her of the Rev. Martin Luther King Jr.'s response to critics of the Civil Rights Act who said it was impossible to legislate human behavior.
Quoting King, Vogel said: "It may be true that the law cannot make a man love me but it can stop him from lynching me." In this case, said Vogel, the new advocate's office and its reliance on the protections afforded in the state's Fair Housing Practices Act, "may stop Miss Deschenes from injuring Mr. Potts and that's pretty important, too."
During yesterday's injunction hearing Potts, 48, testified how his relationship with Deschenes got off poorly in March as he was preparing to move into the apartment house at 234 Child St.
Soon after telling Deschenes that he was gay and ill, Potts said he received a phone call from Deschenes after she had left her young daughter alone in the apartment upstairs.
"She said, 'If you do anything to my daughter I'll [expletive] kill you.' I said, 'I'm gay, not a pedophile.' "
Since then, Potts said he had called the Warren police at least 15 times complaining that Deschenes was harassing him by playing loud music, stomping on her floor and using slurs directed at him because he is gay.
According to his court complaint, Deschenes on several occasions physically threatened Potts, apparently because he was calling the police on her. On June 12, responding police officers arrested Deschenes for disorderly conduct for refusing to turn down her music. During the arrest, the police said, Deschenes threatened to assault Potts once she was released.
On the stand, Deschenes admitted to casting homosexual slurs at Potts.
Under questioning from her lawyer, she said she did so in anger, particularly after she had been arrested and after Potts had called child-welfare officials in to investigate her. His accusation was ruled unfounded, she said. She denied she was homophobic.
"I shouldn't have said what I said. I'll apologize right now. I'm sorry."
In closing remarks, Millea said while Deschenes' statements were offensive to most people, they were protected free speech under the First Amendment.
Further, he argued the attorney general's office had no right to bring the complaint under the Fair Housing Practices Act because the act pertains to protections against discrimination (including sexual orientation) from property owners or landlords. Potts and Deschenes are tenants and have no authority as to who lives at the apartment house.
But Assistant Attorney General Thomas A. Palombo, the state's new civil-rights advocate, said the housing act also makes it unlawful to "coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment" of any rights secured by the state or federal constitutions and laws.
Living peacefully without fear of intimidation or harassment because of your sexual orientation is one of them, Palombo said.
Judge Vogel agreed.
"The evidence is clear," Vogel said that Deschenes acted as she did "with intent to harass and intimidate Mr. Potts because he is gay."
She said she rejected Deschenes' testimony that she was not prejudiced against Potts because of his sexual orientation.
While the First Amendment allows people to sling epithets, Vogel said, that freedom becomes limiting when those words provoke or may provoke violence. And Deschenes' remarks that she would "[expletive] him up" upon her release from police custody, "clearly rises to a level of force."
Vogel said Potts' right to "live peacefully . . . will be irreparably harmed" if she didn't issue an injunction to stop Deschenes' continued behavior.
Deschenes refused to comment after the decision. Millea said they would discuss whether to seek an appeal.
Attorney General Patrick C. Lynch, who was in the courtroom, said he was pleased with the judge's decision and grateful that the General Assembly created a means for his office to pursue cases like this -- "to fight for dignity that should be humanely automatic. Unfortunately with people like this defendant, it's important."
Said Potts: "I hope this teaches a lesson not to hate anybody for any reason."
from The Providence Journal
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