Updated June 23, 2011
It’s been more than a decade since Matthew Shepard and James Byrd, Jr. were murdered, but at long last the legislation bearing their names is the law of the land. In addition to protections for race, color, religion, national origin, and ethnicity, federal law now protects victims of violent crimes committed based on a person's actual or perceived sexual orientation, gender, gender identity, and disability. And in areas where the law already stood, it is now stronger. Now we must rise to the challenge of making sure that Shepard, Byrd, and all victims are honored by proper implementation of the law, and that it’s utilized to its fullest extent.
Hate crimes are all too common. According to the most recent hate crimes statistics from the FBI, there were 8,336 victims (defined as individuals, businesses, institutions, or society as a whole) of hate crimes in 2009. Of these, 1,482 were victims of hate crimes based on sexual orientation, and 99 were victims of hate crimes based on disability. The new hate crime law extends federal protections to these and other (gender and gender identity) categories. We must make sure that future statistics fully reflect the new categories, and that existing data collection is strengthened nationwide.
Hate crimes are about more than just the individual attacked. They draw massive public attention and victimize entire communities. There is a clear public good to punish and prevent crimes designed to sow fear and division by singling out individuals based on immutable characteristics. When an LGBT person is attacked, as is the case with the other categories covered by federal hate crime law, the threat of continued violence is felt by all those who could be singled out in the future. Anti-LGBT hate crimes are designed to send the message that LGBT people should feel constantly endangered for doing nothing more than living their lives and being true to themselves. Forcing a community to live in constant fear of severe physical harm is a key element of oppression.
State and local authorities can be our first line of defense against hate crimes, but the federal government also has an important role to play. State and local authorities will continue to prosecute most hate crimes – as they did previously. Out of respect for this traditional role, the 2009 law requires the Attorney General or his designee to approve all federal hate crime prosecutions and consult with state and local law enforcement officials before undertaking prosecution against any defendant. However, what’s important about the 2009 law is that it allows the federal government to step in when state and local authorities cannot or will not act, providing leadership or assistance to ensure that justice is served. The more tools there are, the more potential there is for an effective response to a hate crime.
Many states are constrained by their own laws. While 45 states have hate crime laws on the books, only 30 address sexual orientation; 26 address gender; 12 address gender identity; and 30 address disability. The District of Columbia’s hate crime law covers all of these groups.
The 2009 law closed a critical loophole when it came to the involvement of federal authorities. It removed a requirement that victims be engaged in a federally protected activity when the crime was committed. This meant that the federal government’s hands were tied unless the victim was doing something like voting, serving on a jury, or attending public school when they were attacked. Now the federal government can get involved, if appropriate and necessary, wherever hate rears its ugly head.
Federal financial assistance can be crucial when hate crimes occur. After the killing of Matthew Shepard in 1998, federal resources were not available to officials in Laramie, Wyoming because sexual orientation was not covered under federal hate crime law. The $150,000 cost of the investigation and prosecution forced the sheriff’s department to lay off five deputies – a huge loss in a small town of just 28,000 residents. The 2009 law “award[s] grants to assist such agencies with the extraordinary expenses associated with the investigation and prosecution of hate crimes.”
Prosecuting hate crimes is not the equivalent of criminalizing thought. The 2009 law looks at the motivation behind violent crimes, an inquiry that has been at the core of our criminal justice system since before the country’s founding. For example, our laws distinguish between first degree and second degree murder, and voluntary and involuntary manslaughter. In each case, the tragic result is the same – someone kills another person – but the legal system administers vastly different punishments depending on the intent of those responsible.
Prosecuting hate crimes is not a threat to free speech or religious liberty. The 2009 law neither criminalizes speech nor restricts what pastors and other religious leaders are able to preach; it only punishes violent acts. It makes clear that it cannot be “construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the first amendment to the Constitution of the United States and peaceful picketing or demonstration.”
Religious Right propaganda is a transparent disguise for animus. Throughout over a decade of debate on whether to add sexual orientation and gender identity to federal hate crime law, Religious Right opponents falsely claimed that it would threaten religious liberty. They did not voice this alleged concern for constitutional principle when hate crime laws targeted race, disability, or national origin. They made the claim only when it was LGBT people who would be protected from violence. That’s not a constitutional principle; it’s animus.
There is a moral imperative to prosecute hate crimes. In the words of Reverend Timothy McDonald, founder and chair of African American Ministers in Action:
As people of color, we are well aware of the hideous nature of race-based violence, and understand the importance of legislation that protects Americans who are victims of hate crimes. We also are not blind to the fact that violent hate crimes are motivated not just by racism. Knowing this, as clergy members and pastors who affirm the humanity of every person, we fully understand and embrace the call to advocate for an inclusive federal law that will extend protection to victims of hate crimes based on disability, sexual orientation, gender, or gender identity.
Reverend Dr. Robert P. Shine, founder and pastor of Philadelphia’s Berachah Baptist Church, agrees:
The Lord has called for us to love our neighbor and to set at liberty them that are bruised.
The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act became law when President Obama signed the FY10 Defense Authorization bill on October 28, 2009. This followed three key votes: first, the original vote to pass the House bill; second, the vote to add the Senate bill to the Defense bill; and finally, a procedural vote to strip it back out.
Contact your Representative and Senators and tell them how important it is that we take full advantage of the new hate crime law to prevent and prosecute hate crimes. Thank them if they supported the law in any of the above-mentioned votes. Research your state's hate crime law, and push for greater inclusion if it does not cover sexual orientation, gender, gender identity, or disability. Support hate crime data collection at the state and local level, on college campuses, and at the FBI. Write a letter to the editor of your local newspaper urging state and local law enforcement agencies and community groups to take a strong stand against all hate crimes. Let them know that they can and should seek federal help if necessary.
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