The case for hate crimes legislation

There is a general consensus in the GLBT community that hate crimes laws should include sexual orientation and gender identity. That doesn't mean everyone within the community agrees and it certainly doesn't mean everyone else agrees.

Here are the opportunities before us. First, in Tennessee, HB 0335/SB 0253 was introduced in the General Assembly this year. It would add gender identity as a sentencing enhancement factor; sexual orientation is already covered under Tennessee law. There is no fiscal note on the bill, which gets rid of one opposing argument right off the bat. Second, we have hopes that the Matthew Shepard Act or the Local Law Enforcement Hate Crimes Prevention Act will be passed at the federal level later this year. The bill would...

• remove the current prerequisite that the victim be engaging in a federally-protected activity, like voting or going to school;
• give federal authorities greater ability to engage in hate crimes investigations that local authorities choose not to pursue;
• provide $10 million in funding for 2008 and 2009 to help State and local agencies pay for investigating and prosecuting hate crimes;
• require the FBI to track statistics on hate crimes against transgender people (statistics for the other groups are already tracked)

And it would add sexual orientation and gender identity to the classes of persons who can be categorized as the victim of a hate crime.

So what are the objections?

First, some religious right groups have been spreading the myth/lie/falsehood/ruse that hate crimes laws regulate speech. It's not true. Neither the state nor the federal bill deals with speech. You can still preach against the GLBTs from the pulpit if you choose. As Congressman Steve Cohen puts the matter eloquently:



Second, we often hear opponents, even within the GLBT community, argue that the hate part doesn't make any difference. A murder is a murder, after all. Right? Not true. First, of all, many hate crimes don't result in death. They can range from vandalism to assault to murder. The hate factor does matter because legal proceedings do consider motive and it is basic to criminal law to look at different categories of crime--viz., assault vs. aggravated assault. How many words do we have for a crime when someone is killed? Manslaughter, homicide, first-degree murder, etc. If there is a pattern of crimes that share a common motivation and target something specific about a group of victims, isn't it in society's interest to track them and treat them differently? Doesn't that kind of focus help us solve and prevent those crimes more effectively? What you're basically saying, if you oppose hate crimes legislation, is that you don't give a damn if particular kinds of victims are protected and receive justice.

Third, there's a new argument against hate crimes legislation that I'm starting to see coming from the left. Some are arguing (and get ready to cringe when you read the phrase) that hate crimes laws prop up the "prison industrial complex." In other words, hate crimes laws would simply put more disadvantaged people in our mismanaged and oppressive prisons. These same critics would argue that hate crimes laws don't work any way.

After getting past the eye-rolling about the phrase "prison industrial complex," the response to this line of argument is clear. Society has the right and responsibility to protect itself from violent offenders. The fact that our prisons are mismanaged and oppressive is such a broad argument that it would seem to justify not putting anyone else in them. If someone is convicted of a dangerous crime, he or she needs to be locked up. The argument also ignores the fact that most of the victims themselves are from racial, ethnic, and religious minority communities. Even in the GLBT community, the victims are often African-American. Consider the two transgender women in Memphis who were murdered and the third who was shot in the face last year--all African-American. And according to the Department of Justice, many of these crimes are committed for the "thrill" of it. Class isn't necessarily the dominant factor in sorting out the perpetrators. In fact, the average perpetrator of anti-gay violence can be your typical college student who may not be particularly disadvantaged at all, according to some studies. In this young adult age group, the motivations are described as self-defense against perceived sexual propositions, an anti-gay ideology, peer influence, and (in agreement with the Department of Justice) thrill seeking.

So are hate crimes laws effective? Standing alone, they will not prevent hate crimes. Education is necessary, too. If there are not aggressive prosecutions, then they won't work. We have not had aggressive prosecutions in Tennessee with respect to anti-gay hate crimes. In fact, we have not had aggressive investigations of hate crimes in Tennessee. That's precisely why the Matthew Shepard Act would make a difference. It would provide resources for investigating hate crimes and it would allow the federal government to step in if local authorities chose not to pursue acts of hate.

In rural Tennessee, it is often difficult for elected district attorneys and elected sheriffs to puruse a matter as a hate crime. That's not to say they don't do their jobs in taking on acts of vandalism, murder, etc. But it is up to the D.A. to go after the sentencing enhancement. It almost never happens. And there are no extra resources for county sheriffs and city police departments to conduct adequate investigations of the hate angle. So to argue that hate crimes laws don't work is speculative at best since they really haven't had a chance to be tested.

Based on other kinds of hate crimes, like cross burnings, that are less common today, I think we can make an educated guess that adding sexual orientation and gender identity to hate crimes, would have a positive effect. In other eras, the practice was fairly common. Twenty occurred between October 2005 and April 2007, according to the FBI. Because race is covered by federal hate crimes laws, here's what the FBI says it can offer in invesigating these acts of hate:

What do we bring to the table? Two things primarily.

First, our full suite of investigative and intelligence capabilities. For example:

• We can use our intelligence to provide a broader understanding of any involved organized hate groups; we may also have or be able to develop informants or other sources of information in these groups or in the area.
• We can run undercover or surveillance operations and send in our evidence response teams to help secure and map crime scenes.
• Where needed, we can lend our laboratory and computer forensic expertise.
• Using our network of national and even international offices, we can help run down leads that cross jurisdictional boundaries.
• We can send in teams of specialists to help victims of the crimes.
• We can issue wanted flyers for suspects on the lam.

Second, the full force of federal civil rights statutes when warranted. In some cases, for example, states may not even have hate crime laws on the books.

If the GLBT community is the target of hate violence, doesn't it seem reasonable to extend these resources to our community as well?