The Truth About Hate Crimes Laws
For whatever reasons, it took the death of a young gay white man at the hands of two other young white men in Wyoming to bring the issue of violence aimed at lesbians, gays, bisexuals and transgendered people (LGBT) to national consciousness. While one of those young men, Russell Henderson, has pleaded guilty to murder, kidnapping and robbery, and while another, Aaron McKinney, awaits trial, national lesbian and gay organizations have focused the fear, anger, compassion and political capital aroused by Matthew Shepard's killing into a campaign for federal and state hate crimes legislation.
The Gay and Lesbian Alliance Against Defamation, the Human Rights Campaign (HRC), the National Gay and Lesbian Task Force (NGLTF), and Parents, Families and Friends of Lesbians And Gays, along with an assortment of religious, ethnic, feminist and civil rights groups, have all pursued hate crimes legislation. They are joined by President Clinton, most Congressional Democrats and even a few Republicans, such as Senator Arlen Specter, who have endorsed the federal Hate Crimes Prevention Act (HCPA), a version of which failed to pass last year's Congress despite having more than 200 co-sponsors and some bipartisan support.
Hate crimes legislation denotes a set of prescriptions that include toughening sentencing guidelines, expanding federal jurisdiction and requiring the compilation of statistical data on bias crimes. (On the federal level, the Hate Crimes Statistics Act, passed in 1990, already requires the FBI to collect data on anti-LGBT violence.) Currently, twenty-one states and the District of Columbia have hate crimes laws with provisions on sexual orientation along with race, religion, ethnicity and, in some cases, disability and gender; twenty states have hate crimes laws that do not include sexual orientation, and nine states have no hate crimes laws whatsoever.
Even as national lesbian and gay organizations pursue hate crimes laws with single-minded fervor, concentrating precious resources and energy on these campaigns, there is no evidence that such laws actually prevent hate crimes. Passage of the federal HCPA would be largely symbolic: Although it would expand the potential for federal prosecution of anti-LGBT bias crimes, for the most part it would allow legislators to appear to be doing something about homophobia without actually addressing its cultural roots. Meanwhile, beneath the national radar, local antiviolence projects focused on community organizing, outreach and education--efforts that attempt to stop gay-bashing by changing the social environment in which it occurs--are struggling with scant resources.
HRC and other national gay and lesbian organizations contend that if hate crimes laws are passed, law enforcement officials will not only report anti-LGBT violence but will also have the mandate and resources to prosecute it. Yet HRC's political director, Winnie Stachelberg, concedes that "local law enforcement agencies are often reluctant to report [such] crimes," and there is little reason to think that such reluctance would dissolve in the face of a new law. A 1998 report by the National Coalition of Anti-Violence Programs, a network of community-based organizations that monitor and respond to anti-LGBT violence, notes that instances of verbal harassment and abuse by police officers increased by 155 percent from 1997 to 1998, and reports of physical abuse by police grew by more than 866 percent. Given that law enforcement officials regularly harass gays and lesbians--and that antisodomy laws that enable such behavior are still on the books in eighteen states--it seems improbable that passage of hate crimes laws would suddenly transform the state into a guardian of gay and lesbian people.
Community antiviolence activists are intimately aware of this reality. In San Francisco, for example, Shawna Virago, a male-to-female transsexual activist with Community United Against Violence (CUAV), reports that law enforcement officials are not only indifferent to anti-LGBT violence but are often perpetrators of such acts. In 1998, she notes, 50 percent of reported incidents of violence against transgendered people in the Bay Area were committed by law enforcement officials. CUAV works alongside other antiviolence campaigns, such as the Bay Area Police Watch, youth groups and minority organizations, to compile its own statistical data on bias crimes; conduct educational workshops in public schools, social service agencies and police academies; create safer public spaces; and combat illegal strip searches of transgendered people by police officers. Given the pervasive homophobia of law enforcement agencies, these measures seem far better suited to the task of stemming anti-LGBT violence than hate crimes legislation.
In seeking federal prosecution and increased penalties for hate crimes, the NGLTF has argued that "criminal activity based on prejudice terrorizes not only victims but the entire community of which they are a part," and the HRC has said that "hate crimes affect more than just the individual attacked.... Hate crimes rend the fabric of society and fragment communities." Undoubtedly, lesbian, gay, bisexual and transgendered communities suffer fear and intimidation from violent assaults, but hate crimes laws are aimed at lengthening prison sentences, not creating safer community spaces.
Aaron McKinney and Russell Henderson, for instance, attacked Matthew Shepard at least in part to rob him, and McKinney attacked two Hispanic youths shortly after leaving Shepard for dead--making it clear that Shepard's murder occurred in the context of hostile racial and class relations, which hate crimes legislation would do nothing to address. In gentrifying or gentrified urban areas, such as New York's West Village, Chelsea and Park Slope, anti-LGBT violence occurs as existing populations are displaced by waves of lesbian and gay migration. Again, hate crimes legislation fails to grapple with this community problem.
Investing in local organizing, on the other hand, not only enables activists to connect the struggle against anti-gay and lesbian violence to such issues as job protection and the repeal of sodomy laws, it also builds gay and lesbian communities and creates safer social spaces--while at the same time reaching out to other communities to combat the problem of violence together. That's something no hate crimes law will ever do.