Members of the LGBT community and their supporters gather to speak out after a string of bias attacks, including the fatal shooting of 32-year-old Mark Carson on Saturday, during a rally in New York’s Greenwich Village, Monday, May 20, 2013. (AP Photo/Jason DeCrow)
The mainstream LGBT movement—including national groups such as the National Gay and Lesbian Task Force and Lambda Legal Defense, as well as many local state advocacy groups—often disagrees within itself on political priorities, policy implementation and even basic strategies regarding social justice issues. But the one thing that almost all of them agree on is that hate crime laws are good for LGBT people, that they work to deter crime and that LGBT people are safer because of them. These groups are not out of line with liberal American thinking. The National Association for the Advancement of Colored People and the Jewish Anti-Defamation League (ADL) both support hate crime legislation. To make matters appear even simpler, the groups who are most vehemently against hate crime legislation are highly conservative, often overtly homophobic groups, such as Focus on the Family and Concerned Women of America, who fear that such legislation would impede conservative religious people from voicing their beliefs and upholding what they see as “traditional values.” But even with widespread liberal support, the basic question remains: Do these laws work? Do they deter violence against LGBT people? Do they in fact make LGBT people safer? And, most important, are they fair and just?
The term “hate crime laws” is commonplace, but people often do not understand the intent or ramifications of such laws. It is important to understand why they were written in order to understand what they do and don’t do. While hate crime laws proliferated in the early 1980s, their legal roots are deeper. Throughout US history, violent, discriminatory acts against certain groups of people were not taken seriously. One solution was to enact new laws to make sure the laws already on the books were enforced. In the 1930s, when the lynching of African-Americans was pervasive throughout the country—3,446 black Americans were lynched between 1882 and 1968, one every ten days—activists lobbied Congress to pass anti-lynching laws. These would allow the federal government to legally intercede when states would not. A federal law was never passed. Only in 1968 did the Civil Rights Act make it a federal crime to “by force or by threat of force, injure, intimidate, or interfere with anyone … by reason of their race, color, religion, or national origin.” Soon states began passing their own legislation, based, to a large degree, on a model drafted by the ADL, to which “gender” and “sexual orientation” were later added.
Although all of these laws are worded differently, they usually contain three similar provisions. First, animus against the victim must be explicitly articulated. That is, the perpetrator must actively indicate that the crime is being committed because of a “hate” for the victim’s race, religion, ethnicity or sexual orientation. Second, state or federal authorities will officially keep track of the number of incidents by recording them as hate crimes. Third, hate crimes carry with them “penalty enhancement,” usually meaning stiffer sentencing, because they are understood as injuring not only an individual but a community. In the New York State penal code, for instance, if you are convicted of assault in the second degree, a D felony, you could be sentenced to up to seven years in prison. If your second-degree assault is recorded as a hate crime, the prosecutor can bump the charge up to a third-degree assault, a C felony, which carries a sentence of up to fifteen years.
Liberals’ support for hate crime laws is not universal, however. There are progressive LGBT groups, such as Queers for Economic Justice and the Sylvia Rivera Law Project, that do not support them. There are two main reasons for this opposition. The first is that the laws are disproportionately used against poor people and people of color. The second is that they simply try to fix the problem of bias crime by putting people in prison for longer periods of time, which usually leads to more-hardened criminals. The American Civil Liberties Union (ACLU) has long objected to many hate crime laws because they are predicated on punishing not only action, such as assault, but on punishing constitutionally protected free speech. The ACLU is concerned that hate crime laws criminalize thoughts, arguing that it should not be a crime to think or articulate hurtful statements. Hurting someone’s feelings may be offensive, even emotionally painful, but it shouldn’t be against the law.
The many religious and conservative groups against hate crime laws, particularly the inclusion of LGBT people as a protected class under the law, fear that they will not only impede but criminalize the articulation of deeply held moral or religious beliefs. Mike Pence, governor of Indiana, lobbied against the federal Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act when he was a congressman, stating:
The issue of hate crimes legislation that continues to be advanced on Capitol Hill is part of a larger effort that we already see working in state statutes. And however well intentioned, hate crimes statutes around the country have been used to quell religious expression. Individual pastors who may wish to preach out of Romans chapter 1 about what the Bible teaches about homosexual behavior … could be charged or subject to intimidation for simply expressing a biblical moral view on the issue of homosexual behavior.
Pence’s warning has nothing to do with how hate crime legislation actually works. His argument, echoed by many conservative religious groups, is a scare tactic intended to make LGBT activists look like dictators punishing people who do not agree with them. These religious organizations are probably more upset that any protections are being put in place for minority groups.
There are two primary arguments made by proponents of hate crime laws. The first is that their enhanced penalties work to deter attacks on minorities. The second is that they are a fair and just way of dealing with criminal activity, especially when it allegedly terrorizes an entire group. Both are, on the face of it, appealing arguments, pure and simple. But as Oscar Wilde noted in The Importance of Being Earnest, “The truth is rarely pure and never simple.”
Do hate crime laws deter crime? There is a great deal of research on the question of whether the death penalty is a deterrent to murder. Hundreds of studies have tried to demonstrate that it is, and all have been debunked for statistical and methodological reasons. There is no conclusive evidence that the death penalty works as a deterrent. There have been far fewer studies done on hate crime laws as a deterrent, and none has demonstrated that they deter crimes. Hate crime law proponents will often argue that we don’t need scientific proof, only common sense. Many Americans simply accept the unproven assumption that these laws act as a deterrent. Wade Henderson, president of the Leadership Conference on Civil and Human Rights, states, “We recognize we cannot outlaw hate. However, laws shape attitudes. And attitudes influence behavior.” He is correct. Laws do shape attitudes. But our legal system does not write laws to shape attitudes; it writes them to justly and fairly punish explicit behaviors.
People who commit crimes and are caught usually get punished. Getting rid of hate crime laws would not let convicted criminals go free. The person who commits a second-degree felony in New York State can already go to prison for seven years. Is doubling—or, as the law euphemistically states it, “enhancing”—that prison sentence from seven to fifteen years going to make it more of a deterrent? Most people and groups, although not all, who oppose hate crime legislation do so because of the enhanced penalty provisions; they see no problem with recording crime statistics in a way that gives a snapshot of social attitudes about LGBT people. But the place to change social attitudes, hearts, and minds is not in prisons. It is in schools, in activist organizations, around the dinner table, at houses of worship and other places where people can talk, disagree and learn that disagreement may be a useful and even productive means of growth.
If there is no hard evidence that hate crime laws deter crime, and if people who commit these crimes—which may range from intimidation and harassment to assault, vandalism and arson—are, if caught, often given harsh punishments under existing law, why do LGBT people, and others, feel so deeply about the need to have them? One of the most prominent hate crimes in US history may provide some insight. In 1998, 21-year-old college student Matthew Shepard was found abandoned and brutally beaten in a desolate field in Laramie, Wyoming. He died six days later. Russell Henderson and Aaron McKinney, also both 21, were arrested for his murder. They confessed and were convicted in two separate trials, in 1999 and 2001, and not under a hate crime law, since Wyoming did not have one. They are each serving two consecutive life terms in the Wyoming State Penitentiary. In 2009, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act was passed, after a decade of obstruction by a Republican Congress, and signed into law by Barack Obama. (James Byrd was an African-American man murdered by three white men, two of whom were white supremacists, in Jasper, Texas, in 1998.) The legislation expanded the 1969 federal hate crime law to include religion, national origin, gender, sexual orientation, gender identity and disability.
In addition to the question of whether Shepard’s murder fit the criteria mandated by hate crime laws—was it, as some news reports suggested, a robbery gone horribly wrong with no clearly articulated animus toward homosexuality?—the crime is a case study in how multiple causes can affect people’s actions. In “A Boys Life: For Matthew Shepard’s Killers, What Does it Take to Be a Man?,” in the September 1999 issue of Harper’s, JoAnn Wypijewski persuasively argues that Shepard’s murder had as much, if not more, to do with poverty, economic conditions, a deadly methamphetamine drug culture and American ideas about masculinity than it did antigay bias. We will never know for certain if Shepard was murdered because he was gay. But we do know that both of his killers were given two consecutive life sentences without possibility of parole without a hate crime law on the books. Even if there had been a state or federal hate crime law in place, it is also highly likely it would not have prevented the murder.
The public outcry engendered by the Matthew Shepard case to include LGBT people as protected categories in existing hate crime laws was not based on criminology or logic but emotion. Virulent homophobia in our culture often erupts into violence, and LGBT people are truly not safe from it. Rates of violent crimes against transgender people have been sharply rising for years. Hate crime laws make people feel safe and make them feel that the legal system and law enforcement care about them. But “feeling safe” and “being safe” are very different.
There is another, very understandable, reason why people support hate crime laws. That is the basic human emotion of vengeance. LGBT people, as well as many other groups, are well aware of the injustices committed against them. They are also acutely aware of the long history of these injustices in relation to other oppressed groups, such as the appalling and shameful refusal of Congress to pass anti-lynching laws. The impulse to vengeance is completely understandable. But laws exist precisely to make sure that fairness and justice take the place of vengeance. Just as basing laws on “feeling safe” makes bad legal policy, laws that do not promote fairness and justice have no place in our legal codes.
Does more punishment equal more justice? How and where do we draw the line? What’s more, whose hateful behavior rises to the threshold of a hate crime? And whose is cast as a private affair? The truth is, in America, we enforce hate crime laws very selectively. Do parents of LGBT youth who intimidate, harass and even physically abuse their children because they are queer get charged with hate crimes? How often are the police convicted of hate crimes when they routinely harass, intimidate or physically abuse LGBT people or people of color? Unless laws can be written and enforced equally and with complete fairness, they are not just.
The issue of unequal enforcement is also the issue of how we conceptualize hate crimes. Is the rape of women by men a hate crime? Some feminists have argued that it is, because heterosexual rape involves the targeting of a woman by a man precisely because of her gender. If rape is a hate crime, why are hate crime laws and penalty enhancements rarely invoked in rape prosecutions? Could the reason be that only men, and a great many men, would be convicted? Hate crimes are imagined by many people to be perpetrated by a small, deviant minority of people, sick criminals, against an equally small minority of outsiders, such as LGBT people or people of color. Naming rape as a hate crime would acknowledge that a majority of the population, women, is at risk and another large segment, heterosexual men, may be responsible.
Kay Whitlock, in her groundbreaking essay “Reconsidering Hate: Policy and Politics at the Intersection,” argues that the simple framework of “hate” to describe and punish violence is completely inadequate to address the deeper divisions and schisms in our culture that are the root of the problem. Arresting people, often young people, and placing them, for long periods of time, in prisons that make no attempt at rehabilitation and will undoubtedly subject them to the endemic violence of prisons, are part of the problem, not the solution. Whitlock suggests that the only way we, as a country and a political system, can move beyond a culture of violence is to work from the bottom up, not the top down. We need to address violence and hatred on the most basic interpersonal levels and at the level of small communities. Working within communities, schools, neighborhoods and organizations to examine the racial, economic and psychological reasons that are often underpinning these crimes will move us beyond the simplistic rhetoric of an ambiguously defined “hate.” This may seem utopian, but community-based groups such as INCITE! Women of Color Against Violence and FIERCE, a New York City group comprised of young people of color, are doing this work already. Hate crime laws do none of this.
Excerpted from “You Can Tell Just by Looking”: And 20 Other Myths about LGBT Life and People , by Michael Bronski, Ann Pellegrinia and Michael Amico (Beacon Press, 2013). Reprinted with permission from Beacon Press.