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WHAT IS PROPOSED?
The US Federal Government has before it's consideration legislation that would alter the present Hate Crimes Prevention Act (HCPA) by including sexual orientation, gender, or disability alongside the presently included race, religion, national origin, or color.
Further, under the proposed laws hate crimes that cause death or bodily injury because of prejudice can be investigated federally, regardless of whether the victim was exercising a federally protected right as the present HCPA only allows. The bill describes a "hate crime" as a violent act causing death or bodily injury.
WHY ARE HATE CRIME LAWS NEEDED?
Hate crime laws at a State level have one simple purpose:
To allow a criminal's hatred toward a particular group to be recognized as a motivating factor during both the investigation and the trial and to allow for enhanced penalties should the accused be found guilty. Without them such motivating factors are often excluded as "irrelevant" to the particular crime under consideration - particularly when the victim is a member of a disliked minority group in the area that the crime is committed.
Hate crime laws at a Federal level have one simple purpose:
To allow higher or outside forces (such as the FBI) to intervene in criminal investigations.
Originally framed around the black civil rights movement in the 1960's such Federal intervention was a belated acknowledgement that many local and State police and law bodies had little interest in vigorously pursuing crimes such as lynchings or racially-motivated attacks. Many of
the local police and judges in the South were racist (and were often members of groups like the KKK) and blacks had a difficult time getting justice at a local level.
Intervention by outside legal authorities was designed to end that situation.
DO THEY ALTER FREE SPEECH PROVISIONS?
No.
Laws that recognize hate as a motivation for a criminal act DO NOT prevent or restrict free speech and are not designed to do that. They can only be used when a crime is committed and are nothing more, or less, than an extension of current laws that already recognize different
motivating factors in criminal acts. There is already legal recognition of the degrees of murder or assault - and hate crime laws simply add an extra subtlety to those laws.
For free speech to be restricted an act would need to be passed with that specific intention - and of course this would need the Constitution itself to be altered.
WHY SHOULD ENHANCED PENALTIES BE GIVEN?
ISN'T EVERY CRIME A "HATE" CRIME?
When someone is killed or beaten up a crime has been committed. The sentence given is dependent on both the criminal's motivation and the effect of the crime to society at large. A killing caused by a blameless accident is treated quite differently to one committed by a hired killer. A beating done on the spur of the moment is treated differently to one done with forethought.
Hate crime laws are recognition that although a victim may be picked at random, the group from which the victim is chosen is NOT picked at random.
What the law is saying is that some criminal acts are not random, but caused by underlying malice and intent and are designed to "send a message" to the wider group that is hated.
This extension of the effect of the crime to beyond the immediate victim has been well noted:
The [US Supreme] Court added: The Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm. For example, according to the State and its amici, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest. ... The State's desire to redress these perceived harms provides an adequate explanation for its penalty enhancement provision over and above mere disagreement with offenders' beliefs or biases. As Blackstone said long ago, "it is but reasonable that among crimes of different natures those should be most severely punished, which are the most destructive of the public safety and happiness."
Crimes motivated by hatred of a particular group also have a more severe effect on the immediate victim and on other members of the targeted group:
"Research by the National Institute Against Personal Prejudice and Violence in the United States indicates that victims of [hate crimes] violence suffer 21 percent more trauma symptoms than other victims of similar crimes.' The psychological effects of victimization because of who you are - whether that be because of your religion, the colour of your skin, your gender, or your sexual orientation - creates severe psychological trauma for victims."
Hate crimes affect not only the direct victim, but all members of the targeted group. Hate crimes by their nature are more serious because they affect a broader class of victims than the person directly targeted. All members of the target group are made to feel insecure because they know that the violence could just as easily have been directed against them.
Professor Petersen notes:
"Furthermore, bias-motivated violence victimizes an entire community of people by effectively intimidating its members. Every queer-bashing incident serves to remind each of us that we could be next."
Because hate crimes have a particularly severe effect upon the victims and because they extend beyond the victims, it is perfectly appropriate to reflect this increased impact by imposing more severe penalties.
Decisions about such penalty levels are decided at State level and include such things as longer sentencing or removing parole as example.
WHY IS THERE OPPOSITION TO HATE CRIME LAWS?
Opposition to Hate Crime Laws come from two directions:
- resistance by local authorities to outside intervention
- a refusal by some to recognize that particular minority groups are subject to hateful attitudes and to ill-treatment.
Local authorities often resent outside intervention. Sometimes these authorities see such intervention as a poor reflection on either their own abilities or on a presumption that they themselves may be racist or homophobic. There are many decent and hardworking local officials and all of us sensitive to others feelings should be able to understand how they may regard demands for outside intervention as insulting.
Other people, of course, just don't like outsiders.
Exactly why Gov. Geringer of Wyoming would make the following statement we'll leave undecided but his words are commonly expressed by people opposed to the HCPA.
"The clamoring for Wyoming to pass a 'hate crimes law' reflects a rush to judgment in itself," said Geringer. "We can and will deal with this properly and on our own. Those who call for a nationally imposed remedy are misdirected."
However, even as we regard such feelings - there is more at stake and proper administration of justice demands that ALL authorities be open to outside scrutiny of one form or another. This scrutiny by outsiders is one of the cornerstones of our system of justice and why, for example,
we have open Court proceedings.
Any official working in the justice system must be able to accept that outside scrutiny is an important part of their job and is vital to maintaining faith in the system and - just as importantly - community faith in each individual officer. Honest law officials have nothing to fear.
However, we have already noted that the basis for Hate Crime Laws are rooted in the struggle to smash racist environments that overwhelmingly prevailed in many areas in the South and came to the attention of the American public at large during the black civil rights movement. With
growing awareness of the problems faced in many areas the American public demanded something be done to ensure justice occurred equally across the entire country and the legislators responded.
Such intervention was most certainly needed and had been ignored for too long.
Good Ol' Boy local police networks, juries drawn from a local population with many committed racists and judges who held certain notions about the "correct" place of the "niggers" lead to many great injustices:
- Often a crime committed against a black person was treated lightly or ignored
- Often the investigations were deliberately botched or evidence tampered with
- Often witnesses were intimidated by the investigating officials
- Often vital evidence was not put before the jury, or struck by the presiding judge
- Often juries would make a verdict based on anything but the evidence
- Often the judge would impose penalties in an unfair manner - letting off white offenders lightly, and treating black offenders harshly.
Such local manipulation of the justice system became more difficult when Federal intervention began occurring. Suddenly it was the FBI and not a local police force in charge of the investigation. Suddenly trials were being moved to more suitable locations. Suddenly judges seen to be incorruptible were sitting on the bench. American justice started to be imposed instead of Local justice.
Obviously problems still exist to this day - but at least something is being done to address those problems and many great strides have been made in the right direction.
Opposition also comes from those who do not believe particular minority groups are subject to hate motivated crimes - or even that the minority group DESERVES to be subject to such crimes.
We shall leave this for the following sections and merely state here that in times past - and the very reason Hate Crime Laws were created - it was often viewed quite acceptable at a local level for a black man to be lynched if he tried to enrol to vote, organised a labor union or started dating a white woman - "After all, he asked for it".
In some people's minds it was just not acceptable for blacks to vote, to be paid fairly or for someone to have a sexual preference across racial lines.
These, afterall, were freely chosen "lifestyles" were they not?
Make that "choice" and you deserve what you get. And ain't nobody going to protect you around these parts.
WHAT ABOUT SPECIFIC OBJECTIONS?
Very few people today would object the present Hate Crime Laws that offer protection to people based on race, color, religion or national origin. Few would object to the notion that disability or gender should now be considered worthy of protection.
Objections to the proposed changes seem overwhelmingly focussed on whether people should be included for protection because of their sexual orientation. More specifically, objections occur because such protection would be thereby be offered to gay men and lesbians.
This objection follows two broad themes but both themes have basically the same underlying cause. These themes are:
- Homosexuals do not deserve protecting.
- Homosexuals are not subject to discrimination, or at least not to any level that warrants protection.
Both perceptions are erroneous and are fuelled by underlying social animosity towards gay men and lesbians. This underlying animosity prevents many people understanding the real situation for those of us who are gay, and it prevents many people from caring even if the facts are presented to them.
To be a gay man or woman is to live with a constant fear of attack, to realize those attacks on both yourself and your gay friends on a regular basis and to live with the knowledge many people are ignorant of your situation and do not care to inform themselves. Even when we bring such
treatment to the attention of others our complaints are often deliberately ignored or we are told "there's nothing we can do about it". On many occasions we feel that the attackers are actually
given social and institutional approval for their criminals actions.
HOW JUSTIFIED ARE YOUR "OPINIONS" ABOUT TO THE NEED TO BE PROTECTED?
Canada recently passed Hate Crime Laws that covered sexual orientation and in the process of convincing some obstructive legislators some very detailed reports were commissioned. These findings are from two of these reports:
"In Nova Scotia, 72% of respondents had been verbally abused, while no less than 42% had been threatened with violence. 33% had been chased or followed because of their actual or presumed sexual orientation...25% of those surveyed in the Nova Scotia study indicated they had objects thrown at them, and 18% had been assaulted with a weapon, punched, kicked or beaten because of their sexual orientation. 16.5% of respondents had been harassed by the Police, and another 2% had been beaten by the Police."
"23% of New Brunswick gays or lesbians had been harassed or assaulted by the police."
Rather than showing up these areas as some sort of bizarre centre of homophobic activity these figures are actually very typical of the findings of any report that has looked into the matter in Canada, the US, Australia or Britain. Is justice truly being served when there are so many crimes committed and if law enforcement officers themselves are frequent perpetrators?
More importantly, reports about attacks ARE NOT isolated "myths" circulating within the gay and lesbian communities. They are genuine and illustrate an on-going campaign of violence and intimidation.
These crimes are rarely committed by someone who is sick or deranged. Most crimes against gay men and women are typically committed by "model members of the community" who are often protected local law officials or community attitudes toward the class of victim. In that respect anti-gay violence closely resembles racially motivated attacks such as lynchings.
In the case of Kenn Zeller, for example, (the gay man who was beaten to death in Toronto by five youths) a prison psychologist who examined the perpetrators of the murder remarked:
"These boys aren't stupid, they're well raised, and yet they talk of homosexuals as some lesser species ... Maybe the feeling is too much ingrained from their environment."
The FBI is able to keep some figures and they suggest some 12% of hate crimes are committed against gay people - these numbers are far above the proportion of society that are openly gay and willing to make a complaint and actually exclude many areas of the US because figures for
attacks against homosexuals are specifically not recorded alongside figures for attacks against race or religion.
More alarmingly is what often happens even when an assailant is bought to trial.
Even when the police investigation is pursued with vigor and even after the jury decides on a guilty verdict there have been some dreadful judgements made in sentencing.
The worst among these is the so-called "Homosexual panic defence". For this the defence tries to paint the assailant as so overcome by emotions when approached by a homosexual that they really weren't to blame for the attack.
On one occasion a judge handed down two very light sentence (months for one of the criminals and only a few years for the other) after two men on their early twenties had beaten to death a man in his forties. The attackers claimed THEY were concerned about being attacked after this
man approached them at 8pm in a park and invited them home. Both young men had gone to this park at this time with the specific intent of "roughing up a fag" (their words). The man did not touch either of them.
Indeed, so frightened for their own safety were these two young men that one of them had to leave his friend alone with the man, walk out of the park to his car, return with a crow-bar and proceed to beat the man to death.
The judge accepted that this was "reasonable" behaviour of someone in the circumstances. He gave light sentences.
Now, consider what you thought as you read this case.
If your first response was to be offended by the idea of the man looking for a sexual liaison in a park may we point out a few things:
- It was no crime to be homosexual
- It was no crime to make a sexual proposition
- The young men were in the park with the intention of committing
a crime
- They were actually expecting someone to approach them in this manner
- The man suggested they go back to his house and was not expecting anything there and then
- They were younger, fitter and outnumbered him
- The victim was carrying no weapon and he made no threats
What ever happened to "No, I'm straight"?
Would a judge have accepted this as reasonable behaviour if the victim had been a straight man and the assailants had been two women?
Obviously the judge would have not. The only difference between this case and any other sexual proposition was that the proposal was made by a gay man. That, it appears, allows a brutally violent response to be considered reasonable and does nothing more than reflect on attitudes
towards gay men and women.
If we cannot even get justice in such a clear-cut murder trial - how much can we expect from a jury, or the police, or many people in the community in far lesser cases?
The simple fact of the matter is that gay people are subject to much higher rates of attack and we are not treated well following these attacks.
We need to be included in Hate Crime Laws because of the special criminal attention we are subject to and because those crimes are often treated lightly.
IN SUMMARY
We have covered the following:
- the need for Hate Crime Laws in general, both at a State and Federal level
- the extent and effect of Hate Crime Laws
- why sexual orientation needs be included in Hate Crime Laws
- why some people oppose both Hate Crime Laws and specifically the inclusion of sexual orientation in those laws.
Hopefully you will now understand why such laws are good idea for all of us in this society, and not just a good idea for particular minority groups. It's about making sure justice extends to all and is applied commensurate to the crime involved.
If you now feel able to support such laws let others know that you do.
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