Aug. 15, 2001 -- Lonny Rae doesn't deny that he used a racial slur last October after seeing a black man scuffle with his wife, who like Rae is white. For uttering an ugly word in what he says was the heat of the moment as he tried to defend his wife, Idaho prosecutors are charging him with a hate crime that could land him in jail for five years.

The Raes and their lawyer, Edgar Steele, say he has been scapegoated by a state that has become overly sensitive to characterizations that it is a home to white separatist racists.

Since the incident, which occurred after a high school football game that Rae's wife, Kimberly, was covering for a local paper, both the Raes found themselves out of work and essentially driven out of town as a result of the bad publicity, they say.

What shocked them more than that was the prosecutor's decision to charge Lonny Rae with felony malicious harassment and disturbing the peace, while not filing charges against the man who scuffled with his wife over her camera.

"They weren't interested in that," Lonny Rae said. "The biggest concern they had was that I used the 'N' word.

"What happened to the guy who actually caused some injury? Nothing," he added. "Why? Because this man is using the laws in this state and the reputation this state has received through some stuff that's happened with the Aryan Nation, trying to change the reputation of the state."

Myron Gabbert, the Adams County prosecutor, denied that there is anything beyond the specifics of the case behind his decision to file charges against Rae.

"This office would not prosecute or level charges against anyone without feeling there was a basis under the laws of Idaho," Gabbert said.

Neither the Adams County sheriff's office nor an Adams County commissioner who the Raes said witnessed the event returned calls requesting comments on the incident. The editor of the Adams County Record, Tim Hohs, said that the account given by the Raes "generally" conformed to what his paper's investigation found.

An Unwanted Picture

Kimberly Rae, who said she worked as a bookkeeper, production editor, reporter and sports editor for the Adams County Record, said she wanted to take a photograph of the referees who worked the Council high school football game because she thought they had determined the outcome of the game.

Council lost, ending its hopes of going to the state playoffs, after a trio of referees brought in from Boise called the game very closely.

"A lot of penalties were called throughout the game and I decided I was going to include that perspective in my stories," she said.

She said she left her husband at their truck to get a photo of the referees as they went into the locker room. She had already snapped one picture when one of the referees asked her not to take their picture, so she turned to rejoin her husband, she said.

She hadn't gotten more than a few steps away, though, when one of the referees, who was black, grabbed at her camera and tried to take it away from her, she said. She wouldn't give it up, and the referee, who stood a foot taller than Kimberly Rae and outweighed her by more than a hundred pounds, wrestled with her to get it.

"One of the other referees was telling him to 'let her go, it ain't worth it,'" she said

She started screaming for her husband, who came running from their truck, some hundred yards away.

Angry Words

"As I approached, he [the referee] raised his hands up and said, 'I ain't touched her. I ain't touched her.' The other referees said, 'He ain't touched her,'" Lonny Rae said. "I told him to keep his damn hands off my wife and she said, 'Don't you ever put your hands on me again.'"

While the referees went on into the lockerroom, the Raes said, Lonny asked his wife what happened and she showed him burn marks on her neck from the camera strap. Lonny Rae said he was furious that his wife had been hurt doing her job, and went after the man who had tried to get the camera.

He found Adams County commissioner Ray Stoker at the door to the lockerroom.

"I looked at him and I said, 'You bring that nigger up here. I want to kick his f-ing ass,'" Lonny Rae said. "He looked at me and said, 'Yeah, sure you will, Lonny.'"

Seeing that the referees were not going to come back out, Rae took his wife home and they called the police, who took a statement and took a photograph of the injury to her neck. Later that night he took his wife to the hospital, where she was treated for the injury and given painkillers.

Reading the Law

When he called the county sheriff the next day, he was told the decision on how to proceed would be made by the county prosecutor. Six weeks later police called him and told him to come to the station.

"They said I'd been arrested for malicious harassment and disturbing the peace," Lonny Rae said. "Then the day before it was to go to court, I was told it was bumped up to a felony."

"It's a matter of reading through the statute of the written law and seeing if the facts result in what you believe is a violation of the statutory law," Gabbert said. "These steps have been taken with regard to Mr. Rae. Under the facts as they are alleged to have occurred, the thought is that Mr. Rae has offended Idaho laws."

Attempts to legislate so-called "hate speech" have proven more complicated than making crimes out of acts motivated by racial, ethnic, religious or gender hatred. In 1992, the Supreme Court ruled in R.A.V. v City of St. Paul, that "fighting words" can be regulated, but only "so long as the selective prescription is not based on content, or there is no realistic possibility that regulation of ideas is afoot."

According to UCLA Law School professor Eugene Volokh, a specialist in the First Amendment who was one of the legal advisors on California's Proposition 209 anti-race-preference ballot measure, that ruling by the Court could raise questions about the Idaho law.

If the jury believes the Raes' account, he said, the constitutionallity of the law might not matter, though, Volokh said.

"Assuming the facts are right, the fact that he used the word may just mean that was just the word that came to mind when he wanted to insult this person," Volokh said. "In that case, the jury would have to acquit. That just would not be covered by the statute."

Despite that, Volokh said it is clearly understandable why the referee might want to see Rae prosecuted.

"You have to sympathize with the victim here, the ref, even if he erred in some way in dealing with this woman. Then he hears this guy threatening him and he may feel he really meant it," Volokh said. "When somebody is threatening to beat you up, it doesn't matter whether it's because of race or whatever."

A Question of Motive

Steele, the Raes' attorney, said he has filed a civil lawsuit against the referee, which won't go to trial before next year. In the meantime, he is focused on clearing Lonny Rae.

"What Lonny Rae said that cold night last October wasn't right, but it wasn't criminal," he said.

The Idaho statue on malicious harassment reads: "It shall be unlawful for any person, maliciously and with the specific intent to intimidate or harass another person because of that person's race, color, religion, ancestry, or national origin, to: (a) Cause physical injury to another person; or (b) Damage, destroy, or deface any real or personal property of another person; or (c) Threaten, by word or act, to do the acts prohibited if there is reasonable cause to believe that any of the acts described in subsections (a) and (b) of this section will occur."

What was at issue here, according to Lonny Rae and his attorney, was not the referee's race, but the fact that he had hurt Rae's wife.

"Here's a guy in an enflamed state saying these things, and was the intent to commit a racial slur or get at this guy personally, any way he could?" Steele asked. "People are so sensitive to the black eyes they've been getting one after another, and here they're going to get another one, because this is a case I'm going to win."