Democrats are still reeling from the drubbing they took on Election Day, leading to questions about whether the rapid advancement of marriage equality was a factor in the Republican rout.
It depends on whom you ask and where you look, but viewing the election results on a national scale, it’s hard to make the case the issue had a significant impact when so many other factors were at play.
According to exit poll analysis, 49 percent of voters supported same-sex marriage, but 48 percent opposed it. Those numbers demonstrate smaller support for same-sex marriage than other recent polls showing nearly 60 percent support for gay nuptials among Americans, but it’s about the same as 2012 data, when marriage equality won big at the polls, and demonstrates more support than exit poll data in 2010.
Brian Brown, president of the anti-gay National Organization for Marriage, nonetheless crowed in a statement this week that support for restricting marriage to one man and one woman “overwhelmingly” won on election night.
“In red states and blue, candidates who supported marriage as the union of one man and one woman won election and those who didn’t were rejected by voters,” Brown said. “The Republican Party should take note that their nominees who favored gay ‘marriage’ were opposed by NOM and they were resoundingly defeated.”
The nominees to which Brown referred were U.S. Senate candidate in Oregon Monica Wehby, who campaigned in support of marriage equality in the general election, and gay Republicans Richard Tisei and Carl DeMaio, who both lost their bids for Congress. Prior to the results, anti-gay groups, including NOM, announced they were refusing to support these candidates and urged support for their Democratic opponents.
But each of the Democratic candidates in those elections were equally in support of same-sex marriage and LGBT rights — if not stronger — than their Republican opponents. Sen. Jeff Merkley (D-Ore.), who won against Wehby, is an early supporter of marriage equality and champion of the Employment Non-Discrimination Act in the U.S. Senate. Seth Moulton, the Democratic opponent who bested Tisei, supports LGBT rights, and DeMaio’s opponent incumbent Rep. Scott Peters (D-Calif.) was endorsed by the Human Rights Campaign.
One might argue conservatives were so disaffected in those races that they stayed home and didn’t provide the necessary support to overcome the Republican rivals of Democratic candidates, especially in close races like California’s 52nd congressional district, where DeMaio was ahead in the final tally and declared the loser only after the provisional ballots were counted.
But that wouldn’t explain other races in which Republican challengers who support marriage equality were able to unseat Democratic opponents in close contests. Robert Dold, a former Republican House member who came out for marriage equality after leaving office, won in his bid to unseat Rep. Brad Schneider (D-Ill.), as did Carlos Curbelo, a Republican supporter of same-sex marriage who unseated Rep. Joe Garcia (D-Fla.).
The support of marriage equality from these Republicans means the number of House Republicans will increase to at least six when the 114th Congress convenes. Dold and Curbelo will join incumbent Reps. Ileana Ros-Lehtinen (R-Fla.), Richard Hanna (R-N.Y.), Charlie Dent (R-Pa.) and David Jolly (R-Fla.) in support of gay nuptials.
Kevin Franck, a gay Democratic activist in Massachusetts, said despite the “deeply conservative undercurrent” in Massachusetts politics, he saw no indications that Republicans in his state stayed home as opposed to voting for Tisei.
“Tisei received more votes that the anti-marriage equality Tea Party Republican who ran in the Sixth District in 2010, and redistricting has made the district more conservative since then,” Franck said. “The bottom line is this is a Democratic-leaning district and Richard Tisei’s path to victory was always paved with John Tierney’s perceived political weakness. After Seth Moulton won the primary, Tisei’s chances went downhill fast.”
In the U.S. Senate, Sen. Susan Collins (R-Maine) came out for marriage equality after her primary and won her bid for re-election against her Democratic opponent Shenna Bellows.
It should be noted that Bellows was actually ahead of Collins in terms of LGBT issues. A former head of the American Civil Liberties Union of Maine, Bellows supported a federal marriage equality bill and a comprehensive civil rights bill without a religious exemption. Although a majority of U.S. senators now support same-sex marriage, in the upcoming Congress that number will drop to at least 49.
But Collins’ re-election means at least four Republican U.S. senators will support marriage in the next Congress: Collins, Sen. Rob Portman (R-Ohio), Lisa Murkowski (R-Alaska) and Mark Kirk (R-Ill.).
Jeff Cook-McCormac, senior adviser to the pro-LGBT American Unity Fund, took an approach to the election results that was the opposite of NOM, saying the issue of LGBT rights has “reached a turning point within the GOP.”
“Not only can Republicans follow their conscience and survive reelection, they can appeal to a much broader constituency and thrive with the support of the emerging LGBT-friendly majority within the GOP,” Cook-McCormac said.
Elections in which same-sex marriage may have played a role in defeating LGBT-supportive candidates were in conservative states Kansas and North Carolina, where Republican nominees who opposed gay nuptials won by a slim margin against candidates who support them.
Both Kansas Gov. Sam Brownback, a Republican who faced criticism from within his party for a tax policy that left his state in dire financial straits, and Sen. Pat Roberts (R-Kansas), who faced a challenge from a strong independent candidate Greg Orman, were facing questionable re-election prospects.
But after the Supreme Court refused to review a decision in favor of marriage equality in the Tenth Circuit, opening the door for same-sex marriage in Kansas, both politicians reportedly drew on the ruling in their campaigns. According to the Associated Press, Brownback raised the issue in an interview without being asked about it, and Roberts sent a mailing criticizing Orman over his belief the state shouldn’t prohibit same-sex marriage.
In the end, both Republicans pulled off a win. Roberts ended up drubbing Orman by taking 53 percent of the vote compared to his 42 percent, and Brownback won with 50 percent of the vote against Democratic gubernatorial candidate Paul Davis, who took 46 percent.
Thomas Witt, executive director of Equality Kansas, discounted the media report that marriage was a factor in the Kansas races, saying he didn’t see any of the Roberts fliers and the issue “didn’t have any impact on the election whatsoever” in Brownback’s race.
“The reality is here from this election Paul Davis got stuck at 46 percent sometime back in July and never moved the needle,” Witt said. “That was long before any rulings on marriage.”
For the governor’s race, Witt said Brownback’s win was the result of Davis running a “one-note campaign” where the Democratic candidate would talk only about education and “that wasn’t enough to get him past 46 percent.”
In North Carolina, incumbent Sen. Kay Hagan (D-N.C.), who came out in support of marriage equality last year, was in a tight race against Republican candidate Thom Tillis. Throughout the race, Hagan was shown to have a narrow, but consistent lead in the polls.
But after the Supreme Court refused to review a decision bringing marriage equality, thereby enabling same-sex marriage in North Carolina, Tillis in his role as House speaker attempted to defend the state’s ban on same-sex marriage in court.
When the dust of the race cleared weeks later on Election Day, Tillis narrowly won by 49 percent, compared to 47 percent of the vote won by Hagan.
Thomas Mills, a political analyst and editor of PoliticsNC, nonetheless said he doesn’t think marriage played a major factor in the Senate race, and in fact Hagan’s support for gay nuptials was necessary to give her a boost in the progressive, research area of the state.
“I always assumed that the conservative base was coming,” Mills said. “They were angry at a lot more than just the marriage issue. They were mad at Obama, and then they got scared about Ebola. I don’t think it was much of a driver as some people may have thought it was.”
The idea that the advancement of same-sex marriage contributed to Republican wins in these races also doesn’t square with the results in Virginia. Although Sen. Mark Warner (D-Va.) was expected to win by a larger margin, he pulled off a narrow victory against Republican challenger Ed Gillespie by embracing the court decision that brought gay nuptials to the state.
And not supporting same-sex marriage was an unsuccessful strategy for Democrats. Sen. Mark Pryor (D-Ark.), who opposes gay nuptials, lost his re-election bid to Republican candidate Tom Cotton. Sen. Mary Landrieu (D-La.) — who said she personally supports same-sex marriage, but also her state’s marriage ban — seems poised for defeat in her state’s run-off election on Dec. 6 and the Democratic Senatorial Campaign Committee is canceling at least some advertising reservations for her.
Being anti-gay also didn’t help Democrats in the House. The two House Democrats who co-sponsored a Federal Marriage Amendment banning same-sex marriage across the country won’t be returning to Congress next year. Rep. Mike McIntyre (D-N.C.) is retiring and Rep. Nick Rahall (R-W.Va.) lost to Republican candidate Evan Jenkins by double-digits.
According to election data analysis from the Human Rights Campaign, LGBT issues “loomed small” in 2014 and the theme for the year was instead “throw the president’s buddies out” — even though some of those buddies happened to support marriage equality.
Taking note of exit polls showing LGBT people, who made up 4 percent of electorate, voted 3-1 for Democrats, HRC made the case that candidates, especially in purple states, can’t afford to lose support from these voters in close elections.
Kirk Fordham, executive director of the Denver-based Gill Action Fund, echoed the sense that marriage wasn’t a major factor for voters, saying even with the recent court rulings “we’re long past the days of 2004” when it could be used as a wedge.
“Even Republicans recognize that the shelf life of this issue has expired when it comes to benefiting their general elections,” Fordham said. “Certainly in some parts of the country, and in primaries, it’s still potent, but it just is an issue that Republicans avoid when it comes to appealing to the broader general electorate.”
CORRECTION: An initial version of this article miscounted the number of senators in the upcoming Congress who are expected to support same-sex marriage. The Blade regrets the error.
Equality Act, contorted as a danger by anti-LGBTQ forces, is all but dead
No political willpower to force vote or reach a compromise
Despite having President Biden in the White House and Democratic majorities in both chambers of Congress, efforts to update federal civil rights laws to strengthen the prohibition on discrimination against LGBTQ people by passing the Equality Act are all but dead as opponents of the measure have contorted it beyond recognition.
Political willpower is lacking to find a compromise that would be acceptable to enough Republican senators to end a filibuster on the bill — a tall order in any event — nor is there the willpower to force a vote on the Equality Act as opponents stoke fears about transgender kids in sports and not even unanimity in the Democratic caucus in favor of the bill is present, stakeholders who spoke to the Blade on condition of anonymity said.
In fact, there are no imminent plans to hold a vote on the legislation even though Pride month is days away, which would be an opportune time for Congress to demonstrate solidarity with the LGBTQ community by holding a vote on the legislation.
If the Equality Act were to come up for a Senate vote in the next month, it would not have the support to pass. Continued assurances that bipartisan talks are continuing on the legislation have yielded no evidence of additional support, let alone the 10 Republicans needed to end a filibuster.
“I haven’t really heard an update either way, which is usually not good,” one Democratic insider said. “My understanding is that our side was entrenched in a no-compromise mindset and with [Sen. Joe] Manchin saying he didn’t like the bill, it doomed it this Congress. And the bullying of hundreds of trans athletes derailed our message and our arguments of why it was broadly needed.”
The only thing keeping the final nail from being hammered into the Equality Act’s coffin is the unwillingness of its supporters to admit defeat. Other stakeholders who spoke to the Blade continued to assert bipartisan talks are ongoing, strongly pushing back on any conclusion the legislation is dead.
Alphonso David, president of the Human Rights Campaign, said the Equality Act is “alive and well,” citing widespread public support he said includes “the majority of Democrats, Republicans and independents and a growing number of communities across the country engaging and mobilizing every day in support of the legislation.”
“They understand the urgent need to pass this bill and stand up for LGBTQ people across our country,” David added. “As we engage with elected officials, we have confidence that Congress will listen to the voices of their constituents and continue fighting for the Equality Act through the lengthy legislative process. We will also continue our unprecedented campaign to grow the already-high public support for a popular bill that will save lives and make our country fairer and more equal for all. We will not stop until the Equality Act is passed.”
Sen. Jeff Merkley (D-Ore.), chief sponsor of the Equality Act in the Senate, also signaled through a spokesperson work continues on the legislation, refusing to give up on expectations the legislation would soon become law.
“Sen. Merkley and his staff are in active discussions with colleagues on both sides of the aisle to try to get this done,” McLennan said. “We definitely see it as a key priority that we expect to become law.”
A spokesperson Senate Majority Leader Charles Schumer (D-N.Y.), who had promised to force a vote on the Equality Act in the Senate on the day the U.S. House approved it earlier this year, pointed to a March 25 “Dear Colleague” letter in which he identified the Equality Act as one of several bills he’d bring up for a vote.
Despite any assurances, the hold up on the bill is apparent. Although the U.S. House approved the legislation earlier this year, the Senate Judiciary Committee hasn’t even reported out the bill yet to the floor in the aftermath of the first-ever Senate hearing on the bill in March. A Senate Judiciary Committee Democratic aide, however, disputed that inaction as evidence the Equality Act is dead in its tracks: “Bipartisan efforts on a path forward are ongoing.”
Democrats are quick to blame Republicans for inaction on the Equality Act, but with Manchin withholding his support for the legislation they can’t even count on the entirety of their caucus to vote “yes” if it came to the floor. Progressives continue to advocate an end to the filibuster to advance legislation Biden has promised as part of his agenda, but even if they were to overcome headwinds and dismantle the institution needing 60 votes to advance legislation, the Equality Act would likely not have majority support to win approval in the Senate with a 50-50 party split.
The office of Manchin, who has previously said he couldn’t support the Equality Act over concerns about public schools having to implement the transgender protections applying to sports and bathrooms, hasn’t responded to multiple requests this year from the Blade on the legislation and didn’t respond to a request to comment for this article.
Meanwhile, Sen. Susan Collins (R-Maine), who declined to co-sponsor the Equality Act this year after having signed onto the legislation in the previous Congress, insisted through a spokesperson talks are still happening across the aisle despite the appearances the legislation is dead.
“There continues to be bipartisan support for passing a law that protects the civil rights of Americans, regardless of their sexual orientation or gender identity,” said Annie Clark, a Collins spokesperson. “The Equality Act was a starting point for negotiations, and in its current form, it cannot pass. That’s why there are ongoing discussions among senators and stakeholders about a path forward.”
Let’s face it: Anti-LGBTQ forces have railroaded the debate by making the Equality Act about an end to women’s sports by allowing transgender athletes and danger to women in sex-segregated places like bathrooms and prisons. That doesn’t even get into resolving the issue on drawing the line between civil rights for LGBTQ people and religious freedom, which continues to be litigated in the courts as the U.S. Supreme Court is expected any day now to issue a ruling in Fulton v. City of Philadelphia to determine if foster care agencies can reject same-sex couples over religious objections.
For transgender Americans, who continue to report discrimination and violence at high rates, the absence of the Equality Act may be most keenly felt.
Mara Keisling, outgoing executive director of the National Center for Transgender Equality, disputed any notion the Equality Act is dead and insisted the legislation is “very much alive.”
“We remain optimistic despite misinformation from the opposition,” Keisling said. “NCTE and our movement partners are still working fruitfully on the Equality Act with senators. In fact, we are gaining momentum with all the field organizing we’re doing, like phone banking constituents to call their senators. Legislating takes time. Nothing ever gets through Congress quickly. We expect to see a vote during this Congress, and we are hopeful we can win.”
But one Democratic source said calls to members of Congress against the Equality Act, apparently coordinated by groups like the Heritage Foundation, have has outnumbered calls in favor of it by a substantial margin, with a particular emphasis on Manchin.
No stories are present in the media about same-sex couples being kicked out of a restaurant for holding hands or transgender people for using the restroom consistent with their gender identity, which would be perfectly legal in 25 states thanks to the patchwork of civil rights laws throughout the United States and inadequate protections under federal law.
Tyler Deaton, senior adviser for the American Unity Fund, which has bolstered the Republican-led Fairness for All Act as an alternative to the Equality Act, said he continues to believe the votes are present for a compromise form of the bill.
“I know for a fact there is a supermajority level of support in the Senate for a version of the Equality Act that is fully protective of both LGBTQ civil rights and religious freedom,” Deaton said. “There is interest on both sides of the aisle in getting something done this Congress.”
Deaton, however, didn’t respond to a follow-up inquiry on what evidence exists of agreeing on this compromise.
Biden has already missed the goal he campaigned on in the 2020 election to sign the Equality Act into law within his first 100 days in office. Although Biden renewed his call to pass the legislation in his speech to Congress last month, as things stand now that appears to be a goal he won’t realize for the remainder of this Congress.
Nor has the Biden administration made the Equality Act an issue for top officials within the administration as it pushes for an infrastructure package as a top priority. One Democratic insider said Louisa Terrell, legislative affairs director for the White House, delegated work on the Equality Act to a deputy as opposed to handling it herself.
To be sure, Biden has demonstrated support for the LGBTQ community through executive action at an unprecedented rate, signing an executive order on day one ordering federal agencies to implement the U.S. Supreme Court’s decision last year in Bostock v. Clayton County to the fullest extent possible and dismantling former President Trump’s transgender military ban. Biden also made historic LGBTQ appointments with the confirmation of Transportation Secretary Pete Buttigieg and Rachel Levine as assistant secretary of health.
A White House spokesperson insisted Biden’s team across the board remains committed to the Equality Act, pointing to his remarks to Congress.
“President Biden has urged Congress to get the Equality Act to his desk so he can sign it into law and provide long overdue civil rights protections to LGBTQ+ Americans, and he remains committed to seeing this legislation passed as quickly as possible,” the spokesperson said. “The White House and its entire legislative team remains in ongoing and close coordination with organizations, leaders, members of Congress, including the Equality Caucus, and staff to ensure we are working across the aisle to push the Equality Act forward.”
But at least in the near-term, that progress will fall short of fulfilling the promise of updating federal civil rights law with the Equality Act, which will mean LGBTQ people won’t be able to rely on those protections when faced with discrimination based on sexual orientation or gender identity.
D.C. bill to ban LGBTQ panic defense delayed by Capitol security
Delivery of bill to Congress was held up due to protocols related to Jan. 6 riots
A bill approved unanimously last December by the D.C. Council to ban the so-called LGBTQ panic defense has been delayed from taking effect as a city law because the fence installed around the U.S. Capitol following the Jan. 6 insurrection prevented the law from being delivered to Congress.
According to Eric Salmi, communications director for D.C. Council member Charles Allen (D-Ward 6), who guided the bill through the Council’s legislative process, all bills approved by the Council and signed by the D.C. mayor must be hand-delivered to Congress for a required congressional review.
“What happened was when the Capitol fence went up after the January insurrection, it created an issue where we physically could not deliver laws to Congress per the congressional review period,” Salmi told the Washington Blade.
Among the bills that could not immediately be delivered to Congress was the Bella Evangelista and Tony Hunter Panic Defense Prohibition and Hate Crimes Response Amendment Act of 2020, which was approved by the Council on a second and final vote on Dec. 15.
Between the time the bill was signed by Mayor Muriel Bowser and published in the D.C. Register under procedural requirements for all bills, it was not ready to be transmitted to Congress until Feb. 16, the Council’s legislative record for the bill shows.
Salmi said the impasse in delivering the bill to Congress due to the security fence prevented the bill from reaching Congress on that date and prevented the mandatory 60-day congressional review period for this bill from beginning at that time. He noted that most bills require a 30 legislative day review by Congress.
But the Evangelista-Hunter bill, named after a transgender woman and a gay man who died in violent attacks by perpetrators who attempted to use the trans and gay panic defense, includes a law enforcement related provision that under the city’s Home Rule Charter passed by Congress in the early 1970s requires a 60-day congressional review.
“There is a chance it goes into effect any day now, just given the timeline is close to being up,” Salmi said on Tuesday. “I don’t know the exact date it was delivered, but I do know the countdown is on,” said Salmi, who added, “I would expect any day now it should go into effect and there’s nothing stopping it other than an insurrection in January.”
If the delivery to Congress had not been delayed, the D.C. Council’s legislative office estimated the congressional review would have been completed by May 12.
A congressional source who spoke on condition of being identified only as a senior Democratic aide, said the holdup of D.C. bills because of the Capitol fence has been corrected.
“The House found an immediate workaround, when this issue first arose after the Jan. 6 insurrection,” the aide said.
“This is yet another reason why D.C. Council bills should not be subject to a congressional review period and why we need to grant D.C. statehood,” the aide said.
The aide added that while no disapproval resolution had been introduced in Congress to overturn the D.C. Evangelista-Hunter bill, House Democrats would have defeated such a resolution.
“House Democrats support D.C. home rule, statehood, and LGBTQ rights,” said the aide.
LGBTQ rights advocates have argued that a ban on using a gay or transgender panic defense in criminal trials is needed to prevent defense attorneys from inappropriately asking juries to find that a victim’s sexual orientation or gender identity or expression is to blame for a defendant’s criminal act, including murder.
Some attorneys have argued that their clients “panicked” after discovering the person against whom they committed a violent crime was gay or transgender, prompting them to act in a way they believed to be a form of self-defense.
In addition to its provision banning the LGBTQ panic defense, the Evangelista-Hunter bill includes a separate provision that strengthens the city’s existing hate crimes law by clarifying that hatred need not be the sole motivating factor for an underlying crime such as assault, murder, or threats to be prosecuted as a hate crime.
LGBTQ supportive prosecutors have said the clarification was needed because it is often difficult to prove to a jury that hatred is the only motive behind a violent crime. The prosecutors noted that juries have found defendants not guilty of committing a hate crime on grounds that they believed other motives were involved in a particular crime after defense lawyers argued that the law required “hate” to be the only motive in order to find someone guilty of a hate crime.
Salmi noted that while the hate crime clarification and panic defense prohibition provisions of the Evangelista-Hunter bill will become law as soon as the congressional review is completed, yet another provision in the bill will not become law after the congressional review because there are insufficient funds in the D.C. budget to cover the costs of implementing the provision.
The provision gives the D.C. Office of Human Rights and the Office of the D.C. Attorney General authority to investigate hate related discrimination at places of public accommodation. Salmi said the provision expands protections against discrimination to include web-based retailers or online delivery services that are not physically located in D.C.
“That is subject to appropriations,” Salmi said. “And until it is funded in the upcoming budget it cannot be legally enforced.”
He said that at Council member Allen’s request, the Council added language to the bill that ensures that all other provisions of the legislation that do not require additional funding – including the ban on use of the LGBTQ panic defense and the provision clarifying that hatred doesn’t have to be the sole motive for a hate crime – will take effect as soon as the congressional approval process is completed.
D.C. man charged with 2020 anti-gay death threat rearrested
Defendant implicated in three anti-LGBTQ incidents since 2011
A D.C. man arrested in August 2020 for allegedly threatening to kill a gay man outside the victim’s apartment in the city’s Adams Morgan neighborhood and who was released while awaiting trial was arrested again two weeks ago for allegedly threatening to kill another man in an unrelated incident.
D.C. Superior Court records show that Jalal Malki, who was 37 at the time of his 2020 arrest on a charge of bias-related attempts to do bodily harm against the gay man, was charged on May 4, 2021 with unlawful entry, simple assault, threats to kidnap and injure a person, and attempted possession of a prohibited weapon against the owner of a vacant house at 4412 Georgia Ave., N.W.
Court charging documents state that Malki was allegedly staying at the house without permission as a squatter. An arrest affidavit filed in court by D.C. police says Malki allegedly threatened to kill the man who owns the house shortly after the man arrived at the house while Malki was inside.
According to the affidavit, Malki walked up to the owner of the house while the owner was sitting in his car after having called police and told him, “If you come back here, I’m going to kill you.” While making that threat Malki displayed what appeared to be a gun in his waistband, but which was later found to be a toy gun, the affidavit says.
Malki then walked back inside the house minutes before police arrived and arrested him. Court records show that similar to the court proceedings following his 2020 arrest for threatening the gay man, a judge in the latest case ordered Malki released while awaiting trial. In both cases, the judge ordered him to stay away from the two men he allegedly threatened to kill.
An arrest affidavit filed by D.C. police in the 2020 case states that Malki allegedly made the threats inside an apartment building where the victim lived on the 2300 block of Champlain Street, N.W. It says Malki was living in a nearby building but often visited the building where the victim lived.
“Victim 1 continued to state during an interview that it was not the first time that Defendant 1 had made threats to him, but this time Defendant 1 stated that if he caught him outside, he would ‘fucking kill him.’” the affidavit says. It quotes the victim as saying during this time Malki repeatedly called the victim a “fucking faggot.”
The affidavit, prepared by the arresting officers, says that after the officers arrested Malki and were leading him to a police transport vehicle to be booked for the arrest, he expressed an “excited utterance” that he was “in disbelief that officers sided with the ‘fucking faggot.’”
Court records show that Malki is scheduled to appear in court on June 4 for a status hearing for both the 2020 arrest and the arrest two weeks ago for allegedly threatening to kill the owner of the house in which police say he was illegally squatting.
Superior Court records show that Malki had been arrested three times between 2011 and 2015 in cases unrelated to the 2021 and 2020 cases for allegedly also making threats of violence against people. Two of the cases appear to be LGBTQ related, but prosecutors with the U.S. Attorney’s Office did not list the cases as hate crimes.
In the first of the three cases, filed in July 2011, Malki allegedly shoved a man inside Dupont Circle and threatened to kill him after asking the man why he was wearing a purple shirt.
“Victim 1 believes the assault occurred because Suspect 1 believes Victim 1 is a homosexual,” the police arrest affidavit says.
Court records show prosecutors charged Malki with simple assault and threats to do bodily harm in the case. But the court records show that on Sept. 13, 2011, D.C. Superior Court Judge Stephen F. Eilperin found Malki not guilty on both charges following a non-jury trial.
The online court records do not state why the judge rendered a not guilty verdict. With the courthouse currently closed to the public and the press due to COVID-related restrictions, the Washington Blade couldn’t immediately obtain the records to determine the judge’s reason for the verdict.
In the second case, court records show Malki was arrested by D.C. police outside the Townhouse Tavern bar and restaurant at 1637 R St., N.W. on Nov. 7, 2012 for allegedly threatening one or more people with a knife after employees ordered Malki to leave the establishment for “disorderly behavior.”
At the time, the Townhouse Tavern was located next door to the gay nightclub Cobalt, which before going out of business two years ago, was located at the corner of 17th and R Streets, N.W.
The police arrest affidavit in the case says Malki allegedly pointed a knife in a threatening way at two of the tavern’s employees who blocked his path when he attempted to re-enter the tavern. The affidavit says he was initially charged by D.C. police with assault with a dangerous weapon – knife. Court records, however, show that prosecutors with the U.S. Attorney’s Office lowered the charges to two counts of simple assault. The records show that on Jan. 15, 2013, Malki pleaded guilty to the two charges as part of a plea bargain arrangement.
The records show that Judge Marissa Demeo on that same day issued a sentence of 30 days for each of the two charges but suspended all 30 days for both counts. She then sentenced Malki to one year of supervised probation for both charges and ordered that he undergo alcohol and drug testing and undergo treatment if appropriate.
In the third case prior to the 2020 and 2021 cases, court records show Malki was arrested outside the Cobalt gay nightclub on March 14, 2015 on multiple counts of simple assault, attempted assault with a dangerous weapon – knife, possession of a prohibited weapon – knife, and unlawful entry.
The arrest affidavit says an altercation started on the sidewalk outside the bar when for unknown reasons, Malki grabbed a female customer who was outside smoking and attempted to pull her toward him. When her female friend came to her aid, Malki allegedly got “aggressive” by threatening the woman and “removed what appeared to be a knife from an unknown location” and pointed it at the woman’s friend in a threatening way, the affidavit says.
It says a Cobalt employee minutes later ordered Malki to leave the area and he appeared to do so. But others noticed that he walked toward another entrance door to Cobalt and attempted to enter the establishment knowing he had been ordered not to return because of previous problems with his behavior, the affidavit says. When he attempted to push away another employee to force his way into Cobalt, Malki fell to the ground during a scuffle and other employees held him on the ground while someone else called D.C. police.
Court records show that similar to all of Malki’s arrests, a judge released him while awaiting trial and ordered him to stay away from Cobalt and all of those he was charged with threatening and assaulting.
The records show that on Sept. 18, 2015, Malki agreed to a plea bargain offer by prosecutors in which all except two of the charges – attempted possession of a prohibited weapon and simple assault – were dropped. Judge Alfred S. Irving Jr. on Oct. 2, 2015 sentenced Malki to 60 days of incarnation for each of the two charges but suspended all but five days, which he allowed Malki to serve on weekends, the court records show.
The judge ordered that the two five-day jail terms could be served concurrently, meaning just five days total would be served, according to court records. The records also show that Judge Irving sentenced Malki to one year of supervised probation for each of the two counts and ordered that he enter an alcohol treatment program and stay away from Cobalt.
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