We often follow novel or new arguments raised in criminal cases and one such defense has arisen in the case of a defendant convicted of bombing a Minnesota mosque in 2017. Michael Hari, 50, has asked the court to recognize his status as a transgender woman named Emily Claire Hari. She further asks for the minimum sentence due to the “inner conflict” caused by his gender dysphoria. That is the first such argument that I have seen in a criminal case.
Hari bombed the Dar al-Farooq (DAF) Islamic Center in Bloomington, Minnesota, on Aug. 5, 2017. She is also the founder of the militia group and Heavy details her history of arrests (including abducting her daughters) and her curious enterprises (like making a bid to build the Southern wall). She also was a deputy sheriff and ran for sheriff as a libertarian. She belonged to a community that dressed “plain” like the Amish and became radicalized as a “three percenter” militia member.
After a five-week trial, Hari was convicted on all five counts of the indictment, including intentionally defacing, damaging and destroying any religious real property because of the religious character of that property; intentionally obstructing, and attempting to obstruct, by force and the threat of force, the free exercise of religious beliefs; conspiracy to commit federal felonies by means of fire and explosives; carrying and using a destructive device during and in relation to crimes of violence; and possession of an unregistered destructive device.
Hari is now asking for no more than 30 years in prison — rather than life in prison. According to the Minneapolis Star Tribune, public defender Shannon Elkins details that, as Hari was planning attacks and militia meetings, she was secretly researching gender change information:
“She strongly desired making a full transition but knew she would be ostracized from everyone and everything she knew. Thus, as she formed a ragtag group of freedom fighters or militia men and spoke of missions to Cuba and Venezuela, Ms. Hari secretly looked up ‘sex change,’ ‘transgender surgery’ and ‘post-op transgender’ on the internet. As she purchased military fatigues for their ‘missions,’ she also purchased dresses and female clothing for a planned trip to Bangkok, Thailand, for male-to-female surgery. She was living a double life.
…Emily Hari is more than a one-note caricature. She is a complex human being who has been convicted by a jury of her peers. She will stand before this court for sentencing, facing life in prison. She asks the court to consider a sentence that is just and proportionate rather than vindictive or symbolic.”
Gender dysphoria is defined as “psychological distress that results from an incongruence between one’s sex assigned at birth and one’s gender identity. Though gender dysphoria often begins in childhood, some people may not experience it until after puberty or much later.” The suggestion that gender dysphoria would prompt such extreme violent and anti-social conduct is likely to be rejected by many in this community.
From a practice standpoint, I am not sure how the court can take “judicial notice” of such a claim. Before a court embraces such a claim, it would need to be confident of the scientific or medical basis. Most courts would want to hear from experts on both sides before relying on the claim.
Hari is set to be sentenced next month.