Hate crimes legislation :: radical social policy or justice at last?
by Scott Stiffler
EDGE Contributor
Monday Nov 9, 2009

On October 8, the House of Representatives voted (281 to 146) to expand who qualifies for protection under the federal Hate Crime Bill - adding gender, sexual orientation, gender identity and disability to a list which consisted of race, color, religion and national origin. Having previously passed the Senate as part of $681 billion defense spending bill, it went to President Obama, who signed it in a ceremony attended by (amongst others) Judy and Dennis Shepard, whose son Matthew's death a decade ago prompted renew interest in extending hate crimes legislation to LGBTs.

Perpetrators successfully prosecuted under the federal law will receive a significant addition to their years of incarceration - penalizing them for the hateful intent of their actions on top of the sentence they receive for the crime of assault. 

The new categories of gender and disability have gone virtually unchallenged. Yet Republican lawmakers, conservative Christians and those who consider any new action by the government as political correctness run amok see the addition of sexual orientation and gender identity as further evidence of government stifling expression and unnecessarily injecting itself into local matters.

Curtailing freedom of speech?
As noted in an October 8 New York Times article , "Representative Mike Pence of Indiana, the No. 3 House Republican, said the measure could inhibit freedom of speech and deter religious leaders from discussing their views on homosexuality for fear that those publicly expressed views might be linked to later assaults." The Times article went on to specify that the bill contains language disallowing prosecution "based on an individual's expression of 'racial, religious, political or other beliefs.' " 

That seemingly reassuring language was little comfort to Ohio Representative and House Republican leader John A. Boehner of Ohio - who, the Times notes, "called the legislation radical social policy," - quoting him as saying "The idea that we're going to pass a law that's going to add further charges to someone based on what they may have been thinking, I think is wrong."  

Which, of course, raises the thorny issue of intent. Is someone more culpable for committing, say, assault and battery due to the fact they hate their victim for being part of a social minority?

Jody Huckaby, executive director of PFLAG (Parents, Families, and Friends of Lesbians and Gays ), recalls that "the first hate crimes legislation was enacted after Martin Luther King, Jr. was killed." - a stark and violent example of a crime "where someone was targeted because of a unique attribute to who he was." That began a national debate - and increased general awareness - regarding the bounds of acceptable behavior against those targeted specifically because of their race, color, religion or national origin. 

Flash forward 45 years later, and we add gender, disability, sexual orientation and gender identity. Why? Huckaby notes: "The President said it well" when he reasoned that those who attack people because of their unique attributes "are not just attacking the individual, but the community as a whole."

Michael Wildes ( his website ), an immigration lawyer who also serves as the Mayor of Englewood, NJ, specializes in trying to help immigrant same-sex couples enter the United States legally. He says that affording LGBTs federal protection against hate-based violence is necessary because that community which President Obama spoke of still must be compelled to do the right thing - when it comes to society's most vulnerable. 

Noting the decades-long gap between the initial legislation and its 2009 additions, Wildes says "Our government and our leaders are incapable of recognizing there is discrimination towards LGBT individuals. Until society matures to a point of acceptance and tolerance, you need to teach by example." 
Sending a message

Adding federal consequences for bias-based violence, Wildes argues, "sends a significant message of deterrence to those who would think to act against somebody of a different sexual orientation. This law will no doubt save lives, as the threat of severe consequences has protected others who were attacked because of their religion or ethnicity." It's also made a difference over the years, he points out, through the creation of "hate crimes bureaus established within police precincts and prosecutors offices." This enhanced legislation, Wildes speculates, will be "the foundation by which more cases can be opened. The federal government will investigate crimes that appear to be tied to a person's sexual orientation. It sets a standard." 

It's equally important, Wildes asserts, to send a message to the disenfranchised that they are worthy of protection. "I know, as a former federal prosecutor, as a lawyer and as a mayor, that there is a subculture of people who believe law enforcement and society will be less interested in protecting them because they don't appreciate their right to coexist."

Sharon Stapel, Executive Director, the Gay & Lesbian Anti Violence Project / ( their website ), says raising the bar of tolerance among society at large is "part of why we need this law; to distinguish crimes based on hatred with a penalty meant to send a message not just to the person who commits the crime, but to the whole community."

In that sense, Stapel notes that one of the bill's most significant ripple effects will be the focus, the federal involvement, and the federal resources it brings to "states that do not have current hate crimes protection for LGBT people. This law will allow the federal government to step in and prosecute crimes based on bias." Even in states (such as New York) where there is protection, federal legislation can increase the likelihood of prosecution "in districts where the police refuse to utilize that state law."

One financial benefit of the bill is the $5 million it provides to the Justice Department - who, in turn, will dole it out to local communities to pay for investigating hate crimes.

That's part of why, as Huckaby notes, "This legislation was supported by hundreds of local law enforcement" officials because it "provides resources to dispatch federal authorities into a local municipality to investigate crimes." Even for those local law enforcement officials who know and appreciate "the negative impact of a crime based on hate, it can be extremely expensive and overwhelming to conduct a full investigation."

Anecdotally, says Huckaby, there's been a concern among his peers that "a lack of resources and education about these issues in certain communities has created an environment where there is underreporting of hate crimes. That has been a driving concern; that the reporting of these crimes has varied."

Underreported incidents result in faulty data, says Stapel - noting that "The FBI puts out a report every year. So many districts report zero percent based on any hate crimes criteria. Even in districts where hate crime legislation exists, if they're not investigating it as a hate crime, it's not going to be reported to the federal government."

Finding the perps
Once a crime is brought to the attention of the feds, Stapel notes "the U.S. Attorney General's office is in charge of assessing whether a crime should be prosecuted as a hate crime under this law. In terms of who brings it to the AG's attention, I'm not sure we're clear how that will be implemented." 

As for the role it and other community-based service organizations play in putting hate crimes on the local and federal radar, Stapel says "We maintain a pretty engaged level of vigilance around these issues. The entry point for us in terms of advocacy is with the Police Department's initial investigation." 

If AVP becomes aware of an incident and feels the police have not engaged the local (and now, the federal) hate crimes protocol, "We will advocate with the local precinct, with the LGBT liaison of the NYPD and with the hate crimes task force of the NYPD. If necessary, we'll also advocate with the DA's office, and any other relevant players to make sure the police have conducted the thorough and careful investigations these crimes deserve."

One ripple effect Stapel hopes will be seen soon is the addition of a uniform protocol to follow at the local/state level - in terms of correctly identifying and reporting an incident as a hate crime. That protocol is necessary, she says, because such a determination must currently be made by the initial investigation officer - and that's a judgment vulnerable to that particular office's level of awareness and sense of obligation to report bias as a contributing factor.

What can be problematic, Stapel says, is that some of the criteria for making that determination "can be obvious; anti-gay epitaphs or references to sexual orientation. But, in instances where there is overkill - like someone who is stabbed 40 times instead of two times - there's a lot of discretion there." AVP is also concerned about "a chilling effect in terms of the responding officer calling their superior in the middle of the night or the weekend. In our annual report, we measure police response. It's a consistent problem throughout the country." 

As it did with matters of religion and race, Huckaby hopes the federal hate crimes law, as it applies to LGBT bias crimes, will result in new standards for municipalities who "will have to prepare their law enforcement officials to better understand what to look for." It will also help groups like AVP and PFlag to "partner in more substantive ways - because the legislation raises the bar on these issues and provides access to local communities for federal resources."

As for that necessary sea change in the culture which comes from reaching the hearts and minds of its people, Wilde says that eliminating hateful instincts which lead to bias-based violence will not happen overnight - although it will happen: "People are predisposed to treat others the way they were raised, and it will take a generation of law enforcement officials, lawyers and juries to set the standard so that this conduct is unacceptable."

Scott Stiffler is a New York City based writer and comedian who has performed stand-up, improv, and sketch comedy. His show, "Sammy's at The Palace. . .at Don't Tell Mama"---a spoof of Liza Minnelli's 2008 NYC performance at The Palace Theatre, recently had a NYC run. He must eat twice his weight in fish every day, or he becomes radioactive.



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