HATE CRIMES LAW AND POLICY

In December 2002 the Philadelphia Inquirer ran a front-page headline announcing "How Pa. Heartland Went for Gay Rights. The Hate Crime Law Extends Even to the Transgendered. Observers Are Stunned." The story reported that "a remarkable thing has happened in Pennsylvania. The state legislature passed an amendment to the hate crimes law that made Pennsylvania only the fifth state in the union to protect not only gays, lesbians, and bisexuals, but also those who are transgendered." The writers explained that this landmark decision signaled that gay rights were possible even "in a state renowned for its heartland conservatism" and that such a shift was attributable to a successful lobbying campaign that spanned nine years (Harris and Worden, p. A1). Situating this legal policy in historical context, however, requires understanding the long history of violence against LGBT people, as well as acknowledging policy reforms beginning in the 1970s designed to curb such violence and protect those who are targeted because of their sexual identity, behavior, and desire.

A History of Violence against LGBT People

Violence against LGBT people is not new, nor is it anomalous; it has been documented for as long as the lives of LGBT people have been documented. In a 1980 volume, John Boswell discusses the scholarly evidence for violence against gay men and lesbians in western Europe from the beginning of the Christian era to the fourteenth century. In Gay American History (1976), which covers the four-hundred-year period from 1566 to 1966, Jonathan Katz describes a history of violence directed against LGBT individuals because of their dress, sexual orientation, sexual identity, or sexual behavior. Historically, such violence included castration, beatings, imprisonment, burning, choking, electrical shocks, and execution. Katz documents many historical moments in which the official government sanction for sodomy or other homosexual acts or behaviors was death by hanging, drowning, or some other means. These actions were accepted as legitimate state policy and necessary responses to homosexuality or gender-inappropriate behavior.

In the latter part of the twentieth century, the National Gay and Lesbian Task Force (NGLTF) began documenting literally thousands of incidents of violence against sexual minorities in the United States. Collecting reported incidents of violence, as well as many that have gone unreported, the NGLTF has focused on an array of manifestations of violence against LGBT people (including the particular targeting of LGBT people who are AIDS-positive or suspected of having AIDS): homicide, AIDS-related incidents, harassment and assault, conspiracy, attacks on LGBT establishments, police abuse and negligence, violence on college campuses, violence by family members, violence in jails and prisons, and, most frequently, anti-LGBT defamation. Documented cases of anti-LGBT violence throughout history provide evidence for the claim made by Virginia Apuzzo, former executive director of the NGLTF, that "to be gay or lesbian is to live in the shadow of violence" (cited in Comstock, p. 54). It is easy to extend this well-founded claim to bisexual and transgender people.

Despite many calls for the government to monitor and respond to bias-motivated violence in the United States, including violence against sexual minorities, it was not until the late 1980s that the federal government heeded the demands of many civil rights groups and community organizations and began to study the nature of bias-motivated violence against minorities. In one of the first government-sponsored efforts to assess the scope of violence directed toward minorities in the United States, the U.S. Justice Department commissioned a report on bias-motivated violence in 1987. This report found that "the most frequent victims of hate violence today are Blacks, Hispanics, Southeast Asians, Jews, and gays and lesbians. Homosexuals are probably the most frequent victims" (cited in Vaid, p. 11).

Shortly after the release of this pathbreaking report, the Federal Bureau of Investigation began to collect data on crimes committed because of bias toward homosexuals, as part of its larger effort to track bias-related crime in general in the United States. Beginning in the early 1990s, the Uniform Crime Report (UCR) included annual data on violence against people because of their sexual orientation. Despite the underreported and selectively reported nature of anti-LGBT violence, the data reveal three important trends in reported violence against sexual minorities. First, bias-motivated violence directed toward both gay men and lesbians has increased. Second, violence based on sexual orientation is the second most frequently reported type of hate crime in the United States, with race-based violence being the most frequently reported type of bias crime in the United States. And third, officially reported violence directed toward gay men is more common than violence directed toward lesbians. Official data from state and city agencies generally confirm the patterns revealed by the UCR data.

In addition to government reports, various non–government sponsored studies reveal the contours of crimes against gay men and lesbians. Notably, state-sponsored reports of violence based on sexual orientation or sexuality rarely focus on violence against transgender people. However, the National Coalition of Anti-Violence Programs (NCAVP), a coalition of LGBT-sponsored anti-violence organizations, is an exception. The NCAVP annually releases a report titled "Anti-Lesbian, Gay, Bisexual, and Transgender Violence," which summarizes known incidents of violence against LGBT individuals in cities, states, and/or regions across the United States.

Changing Legal and Extralegal Responses to Violence against Sexual Minorities

The 1980s and 1990s saw the emergence of an array of legal and extralegal responses designed to bring attention to and curb such violence against sexual minorities. In the process, "gay bashing" and other forms of violence against sexual minorities has, for the first time in history, been deemed a national social problem and, in many jurisdictions, a bona fide hate crime. This has occurred primarily as a result of sustained community activism and attendant legal reform.

In the latter part of the twentieth century a plethora of community-based activist groups defined anti–gay and lesbian violence as a social problem in need of remedy.

FIGURE 1

Most notably, in the 1980s and the 1990s gay- and lesbian-sponsored antiviolence projects emerged and proliferated. These organizations document and publicize the incidence and prevalence of anti–gay and lesbian violence, establish crisis intervention and victim assistance programs, sponsor public education campaigns, and undertake surveillance efforts in the form of street patrols. Combined, these activities comprise an "unprecedented level of organizing against violence" (National Gay and Lesbian Task Force, p. 22) that has ensured that anti–gay and lesbian violence has "finally taken its place among such societal concerns as violence against women, children and ethnic and racial groups" (Comstock, p. 1). By the late 1990s violence against transgender people had also begun to receive national attention.

The success of LGBT community activism was evident by the end of the twentieth century in the number of jurisdictions across the United States that had passed laws to enhance the penalty for crimes that manifest evidence of prejudice based on sexual orientation, presumably to deter gay bashing and to punish perpetrators of violence who target sexual minorities.

Although the idea of including sexual orientation as a provision in hate crime policy was introduced early on in the process of making hate crime policy, such protection did not find a secure home in hate crime law until about halfway through a larger process of legal reform designed to curb bias-motivated violence. Moreover, even when including sexual orientation as a provision in hate crime law gained legitimacy, it nonetheless remained a less-accepted provision in hate crime policy than those identified as core provisions—such as race, religion, and ethnicity.

Following the lead of the states, in the 1990s the federal government passed two laws that recognized violence against sexual minorities in general and gays and lesbians in particular as an important social problem in need of public resources and legal redress. First, on 23 April 1990 President George H. W. Bush signed into law the Hate Crime Statistics Act of 1990 (HCSA), which required the U.S. attorney general to collect data on "crimes that manifest evidence of prejudice based on race, religion, disability, sexual orientation, or ethnicity, including where appropriate the crimes of murder, non-negligent manslaughter; forcible rape; aggravated assault, simple assault, intimidation; arson; and destruction, damage, or vandalism of property (U.S. Code, vol. 28, sec. 534 [2000]). As a data collection law, the HCSA merely requires the attorney general to gather and make available to the public information on bias-motivated crime. The goal was that this empirical data would then serve as a tool for developing more effective policy: defining and counting bias-motivated crimes would enable public policymakers to identify trends, fashion effective responses, design prevention strategies, and develop sensitivity to the particular needs of victims of hate crime, including LGBT people.

The second law to deal with hate crime at the federal level was passed as part of the Violent Crime Control and Law Enforcement Act of 1994, U.S. Public Law 103-322 (103d Congress, 2d session, 24 January 1994). Section 280003 of Public Law 103-322, which became known as the Hate Crimes Sentencing Enhancement Act (HCSEA), identified eight predicate crimes—murder; non-negligent manslaughter; forcible rape; aggravated assault; simple assault; intimidation; arson; and destruction, damage, or vandalism of property—for which judges are allowed to enhance penalties of "not less than three offense levels for offenses that finder of fact at trial determines beyond a reasonable doubt are hate crimes." For the purposes of this law, "hate crime" is defined as criminal conduct wherein "the defendant intentionally selected any victim or property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person." Although broad in form, this law only covers hate crimes that take place on federal lands and properties.

Despite the fact that both of these federal efforts are limited—the HCSA does not mandate punishment for offenders and the HCSEA only covers a limited set of circumstances in which violence occurs—the inclusion of "sexual orientation" in these federal policies proved controversial. In the case of the HCSA, for example, passage of the law was delayed for years as conservative legislators questioned the appropriateness of including "sexual orientation" in the law.

Ultimately, however, state and federal laws in combination essentially created a new category of criminal conduct: anti–gay and lesbian violence, a category of crime that has since been expanded to include violence against transgender people. Federal and state policy has brought newfound attention to the age-old problem of violence against sexual minorities and, in the process, redefined it as a social problem. The consequence of legal reform being brought to bear on the problem of gay bashing in the United States is perhaps best revealed in a 1988 case involving the beating death of an Asian American gay man. In the process of adjudicating this case, a Broward County, Florida, circuit judge jokingly asked the prosecuting attorney, "That's a crime now, to beat up a homosexual?" The prosecutor answered, "Yes sir. And it's a crime to kill them." The judge replied, "Times really have changed" (Stryker).

As the twenty-first century begins, even public officials and religious officials who oppose homosexuality as an identity, behavior, or lifestyle have begun to speak out in defense of homosexuals as undeserving targets of discriminatory violence. For example, in June 2000 U.S. Senator Gordon Smith of Oregon encouraged his fellow Republicans to favor federal legislation protecting homosexuals from violence, "I think many [religious conservatives] in the Senate are reflexively inclined to vote no. I understand that because I shared those feelings for a long, long, time. You don't have to agree with everything the gay community is asking. I don't, but we ought to agree on protecting them and all Americans" (Rubin, p. A14).

Policy-mandated promises of protection and legal redress have begun to take form in the United States. For example, nearly six years after two lesbians were bound and gagged and had their throats slit while camping and hiking in the Shenandoah National Park, U.S. Attorney General John D. Ashcroft held an historic nationally televised press conference on 11 April 2001 to announce that the U.S. Justice Department was invoking the federal hate crimes statute for the first time to charge the alleged murderer with hate crime. In announcing the indictment, Ashcroft spoke at length about his meeting with the parents of the victims and about the lives and characters of the young women: two midwesterners who migrated to New England, met and became lovers, and shared the love of science and the outdoors. Justifying the invocation of federal hate crime law, which carries with it enhanced penalties, Ashcroft announced that, according to federal prosecutors, Darrell David Rice, a computer programmer from Columbia, Maryland, was, by his own account, a man who hated lesbians and enjoyed intimidating and assaulting women. Sometime after being arrested, Rice told law enforcement officials that he intentionally selected women to assault because they are more vulnerable than men and that the victims in this case deserved to die because he believed they were homosexuals. Ashcroft declared "criminal acts of hate run counter to what is best in America, our belief in equality and freedom. The Department of Justice will aggressively investigate, prosecute, and punish criminal acts of violence and vigilantism motivated by hate and intolerance." Moreover, he said,"we will pursue, prosecute, and punish those who attack law-abiding Americans out of hatred for who they are" and "hatred is the enemy of justice, regardless of its source" (U.S. Department of Justice). It is nothing short of historic that the U.S. attorney general, a Republican appointee at the highest level of government, called the murder of Julianne Marie Williams and Laura Winans a hate crime in a nationally televised press conference and mandated that it be prosecuted as such by the state.

Bibliography

Boswell, John. Christianity, Social Tolerance, and Homosexuality . Chicago: University of Chicago Press, 1980.

Comstock, Gary. Violence against Lesbians and Gay Men . New York: Columbia University Press, 1991.

Harris, Linda K., and Amy Worden. "How Pa. Heartland Went for Gay Rights: The Hate Crimes Law Extends Even to the Transgendered. Observers are Stunned." Philadelphia Inquirer, 15 December 2002, p. A1.

Herek, Gregory, and Kevin T. Berrill. Hate Crimes: Confronting Violence against Lesbians and Gay Men . Newbury Park, Calif.: Sage, 1992.

Jenness, Valerie. "Managing Differences and Making Legislation: Social Movements and the Racialization, Sexualization, and Gendering of Federal Hate Crime Law in the U.S., 1985–1998." Social Problems 46, no. 4 (1999): 548–571.

Jenness, Valerie, and Kendal Broad. Hate Crimes: New Social Movements and the Politics of Violence . New York: Aldine de Gruyter, 1997.

Jenness, Valerie, and Ryken Grattet. Making Hate a Crime: From Social Movement to Law Enforcement Practice. New York: Russell Sage, 2001.

Katz, Jonathan. Gay American History: Lesbians and Gay Men in the U.S.A. New York: Crowell, 1976.

National Coalition of Anti-Violence Programs. Anti–Lesbian, Gay, Bisexual, and Transgender Violence in 1998. New York: New York City Gay and Lesbian Anti-Violence Project, 1999.

National Gay and Lesbian Task Force (U.S.) Policy Institute. Anti-Gay/Lesbian Violence, Victimization, and Defamation in 1990 . Washington, D.C.: NGLTF Policy Institute, 1991.

Rubin, Alissa J. "Public More Accepting of Gays, Poll Finds." Los Angeles Times , 18 June 2000, p. A14.

Stryker, Jeff. "Asking for it." Appeared 23 October 1998. Available from www.salon.com.

U.S. Department of Justice. "Attorney General Transcript: News Conference with USA John Brownlee: Indictment of Darrell David Rice: April 10, 2002: DOJ Conference Center." Available from http://www.usdoj.gov/ag/at"Speeches 2002."

Vaid, Urvashi. 1995. Virtual Equality: The Mainstreaming of Gay & Lesbian Liberation . New York: Anchor Books.

Valerie Jenness

see alsoanti-discrimination law and policy; crime and criminalization; discrimination; federal law and policy; rape, sexual assault, and sexual harassment law and policy; sexual abuse, exploitation, harassment, and rape; violence.