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Story by William Buchheit
Editor’s Note - The following article is the second in a three-part series chronicling Elke Kennedy and her son Sean’s untimely death.
PART II: Laws, Loopholes and Lessons Learned
South Carolina is one of only five states that don’t have hate crime statutes to punish bias-motivated crime. And according to TV, newspaper and Internet accounts of the incident, that is just what Stephen Moller’s fatal May 2007 attack on Sean Kennedy was.
Though the Greenville Sheriff’s Office has yet to give Hometown News the incident report we requested at their department June 30, most local media sources reported Moller hit Kennedy because he was gay.
Two days after Kennedy died, for example, local TV channel WYFF wrote, “Deputies say a man is under arrest, accused of throwing a fatal punch because he didn’t like another man’s sexual preference.”
Two months later, Upstate FOX affiliate WHNS reported “Deputies said 20-year-old Sean Kennedy was attacked in the parking lot of Brews nightclub by Stephen Moller because he was gay.” In fact, as late as February 11 of this year, the station stuck to their story, writing: “According to witnesses, Moller shouted anti-gay slurs just before he attacked Kennedy, who was openly gay.”
Look Sean Kennedy up on Wikipedia, and the first thing you see is “Victim of anti-gay bias crime.”
Shortly after Kennedy was pronounced dead, the Sheriff’s Office even claimed they had turned the case over to the FBI to investigate whether or not it was a hate crime. But because there is no federal hate crime statute protecting sexual orientation, the FBI had no jurisdiction in the case and was forced to turn it back over to local authorities.
Though Greenville County Solicitor Bob Arial originally tried to charge Moller with murder, a grand jury decided the crime didn’t fit the bill because the attacker did not intend to kill Kennedy. The solicitor was therefore forced to settle for Involuntary Manslaughter, which carries a maximum sentence of just five years.
“The sentence for Involuntary Manslaughter in the state is inadequate to cover the range of situations where death results from an unintended consequence but is still a result of aggressive or reckless or violent behavior,” Arial explains. “Involuntary manslaughter is the only charge available if you can’t prove malice, which is really hard to prove.”
When Moller appeared in court to issue a guilty plea, Assistant Solicitor Mark Moyer echoed Arial’s words.
“It has been the position of our office from the very beginning that it is unfortunate that the charge does not allow the court to impose more than five years,” he said. “We ask the court to impose the maximum sentence of five years. I personally would like to see the penalty for Involuntary Manslaughter raised to the maximum of 15 years rather than five like it is now.”
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In October 1998, two young men in Wyoming tortured and killed 21-year-old Matthew Shepard because he was gay. Less than three years later, the “Matthew Shepard Act” was introduced in Congress. The bill, which would extend federal hate crime laws to include crimes motivated by sexual orientation, passed the House in 2007 and 2009 and is currently pending in the Senate Judiciary Committee.
On April 12, 2007, less than four weeks before Kennedy’s death, SC Congressmen Inglis, Barrett, Brown and Wilson and US Senators DeMint and Graham all voted against passage of the Matthew Shepard Act.
Kennedy’s mother, Elke, and stepfather, Jim Parker, believe those votes altered the course of Moller’s sentencing and prosecution.
“It was an election year and here is a gay young man who was just murdered, and they (SC legislators) voted “no” against the bill that might have given him protection? They didn’t want this to be a hate crime because it would mean that they had made a mistake,” says Parker, Kennedy’s stepfather of six years.
The couple believes politics fueled a concerted effort by authorities to dismiss Moller’s fatal attack as a random act of drunken violence instead of the bias-driven assault the media had portrayed it as.
“They very quickly tried to do everything they could to go away from the hate crime, to get away from the gay [aspect] and make it sound like it was just another bar fight,” says Elke.
Parker and his wife also insist that Arial refused to discuss Moller’s attack as a hate crime and told them not to bring up the state’s current laws and/or shortcomings.
The solicitor claims there was simply no use talking about laws that didn’t exist in SC’s books.
“When they came to talk about the case, I told them that there wasn’t any reason for us to talk about hate crimes because that was a legislative matter, and we didn’t have any such things in SC and I couldn’t do anything about that at this time,” he explains. “It just wasn’t relevant to what we were talking about. We were talking about what my office was going to be able to do for them in regard to this case.”
* * * * * *
Though initial reports stated Moller punched Kennedy because he was gay, Sheriff’s Office Chief Investigator Paul Silvaggio later claimed the assault was more reactive than aggressive. At the defendant’s bond hearing in late 2007, he challenged preliminary reports.
“Through an extensive investigation I found that the defendant did not strike the victim because he was a homosexual,” said Silvaggio. “It was only later that he knew the victim was a homosexual.”
The investigator’s reconstruction of the incident, taken mostly from Moller’s own official statement, went something like this. As Kennedy walked alone across the nightclub parking lot towards Brews, Moller and his two friends called him over to their car nearby and asked him for a cigarette. As Kennedy was handing a cigarette through the car’s open window, Moller leaned over to change the radio station. As happenstance would dictate, Kennedy’s hand brushed Moller’s cheek. Reacting to the incidental contact, he jolted out of the car, approached Kennedy and dealt him the final fatal blow.
Elke and Parker have always held that Moller and his two friends parked near the front door and baited Kennedy to the car in order to attack him.
“They called him over for cigarettes, and he (Moller) got out of the back seat on the driver’s side, walked around the car, called him (Kennedy) a name and hit him, then got back in the car and drove off,” says Parker.
Yet Moller’s attorney, Ryan Beasley, asserted that his client did not know Kennedy was gay until his friends told him after the attack. Speaking to the court, the lawyer even suggested Kennedy’s fatal brain damage might have resulted from his friend dropping his head as she cradled him in the parking lot after the assault.
Even Moyer, who called the crime “a cowardly, vicious and completely unnecessary assault” worthy of a 15-year sentence, has challenged initial reports that anti-gay bias led to the fatal attack.
“Even if SC had a hate crime, I’m not sure this case would fit,” said Moyer. “There is no clear and convincing evidence that Moller assaulted Sean Kennedy because he was gay. It seems unlikely that he even knew Kennedy was gay. He met him only moments prior to the assault. He made no slurs or insulting comments before hitting Kennedy. His reference to Sean Kennedy as a “f_g__t” was made during a telephone call to a friend of the victim after the incident.”
In the voicemails Moller left Kennedy’s friend after the attack, he refers to Kennedy both as a “f_g__t” and a “bitch.”
Yet Moyer insists that the defendant had nothing against gays.
“Several gay people gave statements to police officers and police investigators saying they are good friends with Moller,” he said. “They say Moller knows they are gay and never acts like their homosexuality bothers them and has never shown any discrimination towards them or any homosexuals.”
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Elke and Parker don’t buy it. They believe authorities’ efforts to prove sexual bias wasn’t a factor or suspicious and absurd. Especially troubling to them is how a gay inmate was placed in Moller’s cell as he awaited sentencing. That man, who was openly homosexual, even contacted Silvaggio and said he wanted to give a statement on Moller’s behalf.
“He said he wanted Silvaggio to know that Moller knew he was gay and did not seem bothered by that fact,” says Arial. “He felt no discrimination by Moller and did not wish to be moved to another cell.”
Kennedy’s mother feels the inmate may have been planted in Moller’s cell to challenge the defendant’s homophobic reputation.
“The bottom line is they used part of that statement as proof that he (Moller) had nothing against gays,” she says.
But Arial claims, “the Solicitor’s Office has no role in determining the cellmates for any pretrial detainees. That’s solely in the determination of the detention center. We knew nothing of this statement until it was provided by law enforcement.”
Arial says further that Silvaggio’s assertion that the defendant didn’t know Kennedy was gay before he struck him was based on earlier statements made by the two men riding in the car with Moller. Arial claims only one other person witnessed the attack, and that witness reportedly said nothing about hearing a slur before the punch.
Yet Congressman Bob Inglis apparently still had bias on his mind when he contacted Arial about the crime.
“The hate crime thing had come up in an earlier context with Inglis,” the solicitor recalls. “He was asking me things like, ‘Would it have been any help to have hate crime legislation in this case?’ And I told him I didn’t think it would have, that we had plenty of punishment on the books if the facts met it. Unfortunately, I think this was one of the areas of the law where the punishment was deficient.”
The Solicitor claims, since Kennedy’s death, he has worked unsuccessfully to increase the maximum sentence for Involuntary Manslaughter.
“The true answer here is that Involuntary [Manslaughter] should carry a sentence of up to 15 or 20 years,” he points out. “I’ve advocated that for years and tried to get the legislature to change that because this is not the first case like this we’ve had. It is just totally inadequate and the judge needs a range of sentencing so he can impose what fits the facts.”
On June 11th 2007, Moller received a five-year sentence, suspended to three years, including the 199 days he served before he was let out on bond. Now 20, he was released on July 1, 2009, after serving one year in prison and he will be on probation for 3 years. He also received 30 days of community service and was ordered to take anger management classes and have regular alcohol/drug testing and counseling.
Elke received word of Moller’s release via an automated voicemail left by the Department of Corrections.
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