A Chance to Revisit Hate Crime Laws

The recent tragedy in Orlando has once again brought the perpetual debate regarding gun control, domestic terrorism, and national security to the forefront of the American political agenda. Amidst the many painful lessons of yet another incident of gun violence, we must scrutinize the shortcomings of the legal system that tolerate, and even enable, such hate-fueled violence. While post-Orlando political discourse about criminal justice and the law has rightfully focused on gun laws, hate crime statutes, which are just as dysfunctional, are often overlooked. While five states in the United States still don’t have any legal recognition of hate crimes, statutes in 15 states don’t include sexual orientation or gender identity in their definition. To achieve meaningful progress, we must address such attacks as the Orlando attack in all its dimensions, which warrants a focus on the sorry state of hate crime laws throughout the country.

In his initial press statement regarding the Orlando shooting, President Obama said, “We know enough to say this was an act of terror and an act of hate,” and yet the hate angle faded in the political firestorm that followed.  As calls for policy reform followed, political partisanship quickly reared its ugly head: GOP politicians highlighted the “Islamic terrorism” aspect of the shooting to bring issues of terrorism and immigration to the center of the debate whereas Democrats emphasized the targeting of the LGBTQ community and focused their efforts on gun reform. Still, even with the President and Vice President emphasizing their support of the LGBTQ community in the aftermath of the hateful act, the politicization of the Orlando shooting detracted from a sorely needed re-evaluation of hate crime statutes.

A hate crime is one in which the perpetrator targets victims because of specific traits such as race, religion, ethnicity, sexual orientation, gender, gender identity, or disability. Hate crimes are motivated by a strong, twisted bias against particular categorizations of identity and therefore have additional significance in terms of their impact, because they are meant as violent threats, conveying a message of hate to entire vulnerable communities that are often disadvantaged in some way, such as the LGBTQ community in the Orlando attacks or the African American community in the Charleston attack last summer. Hate crimes instill a sense of fear for victims and their communities, inhibiting their freedom to live, work and travel. In fact, since the purpose of hate crimes is to express hatred and anger and generate fear, they involve more violence than most other crime, often including cruel torture, mutilation and captivity.

The incidents in Orlando and Charleston are unusually high-profile examples; most hate crimes garner far less attention and occur much more frequently. According to the most recent data available from the FBI, there was almost one hate crime in America in every hour of every day in 2007 – a total of more than 7,600 reported bias-motivated incidents. In 2011, 6,222 hate crime incidents involving 7,254 offenses were reported. Out of 6,216 of these crimes, 47% were racially motivated, 21% resulted from sexual-orientation bias, 20% were motivated by religious bias, 12% stemmed from ethnicity/national origin bias, and less than 1% (0.9%) was prompted by disability bias. Every week a cross is burned somewhere. It is particularly because of these harrowing numbers, which show just how disturbingly common hate crimes are, that hate crime laws deserve more scrutiny.

Since 1968, federal law has covered a narrow class of hate crimes: those committed on the basis of race, religion, national origin while the victim was engaged in a federally protected activity, such as voting. After the Supreme Court ruled hate crime laws constitutional in the landmark case Wisconsin v Mitchell in 1993, 45 states and the District of Columbia passed hate crime laws of some capacity. However, a historic moment in hate crime legislation came when the Matthew Shepard and James Byrd, Jr. Hate Crime Prevention Act was signed into law by President Obama in 2009. The law was named after Matthew Shepard, a student who was brutally tortured and murdered in Wyoming in 1998 due to his sexual orientation and James Byrd, Jr., an African American man who was tied to a truck, dragged behind it and decapitated by two white supremacists in Texas the same year. Neither crime was classified and prosecuted as a hate crime since neither state had hate crime laws at the time. The legislation allows the government to provide grants and assistance to state and local authorities investigating and prosecuting hate crimes, ensuring that local law enforcement will have the resources it needs to address them.

The act became law in 2009 after more than 1 million emails, faxes and phone calls were sent to Capitol Hill since 2002 in support of hate crimes legislation, more than 300 civil rights, religious and law enforcement organizations signed on in support of the Act, 86,582 total hate crimes were reported since the introduction of the first hate crimes bill in 1997, of which 13,528 were been based on sexual orientation, and 14 floor votes in the House and the Senate over twelve years finally got the bill to the President’s desk. Yet, despite the federal progress Arkansas, Georgia, Michigan, South Carolina and Wyoming still don’t have hate crime laws at all and fifteen more states have hate crime laws that do not encompass sexual orientation.

Even before Orlando, the situation in South Carolina illustrated the need for stronger hate crime laws. In 2013, 51 hate crimes were committed in the state, and yet there is still no state law addressing them, an omission highlighted in the aftermath of the Charleston massacre. “The only reason someone would walk into a church and shoot people that were praying is hate,” Charleston Mayor Joe Riley said about the shooting. There was little doubt in anyone’s mind that the shooting was indeed a hate crime, since the perpetrator Dylann Roof, a 21-year-old white man, had made numerous racist comments, was seen on social media wearing the flags of formerly white-ruled South Africa and Rhodesia and said he had hoped to start a “race war” shortly after being arrested. Still, since the state, home to 19 known hate groups according to the Southern Poverty Law Center, most of which are focused on white supremacy and racial hatred, has no hate crime laws, the only way the Charleston shooting could be prosecuted as a hate crime was on the federal level. “What we have here is a hate crime that South Carolina cannot officially recognize as such,” Mark Pitcavage, director of the Anti-Defamation League’s Center on Extremism, said. “They have no way to give respect to the victims by charging the suspect with a hate crime, and that is a shame, as it is symbolically significant. It will be recognized that they are victims of a crime, but not victims of hate.”

We need hate crime legislation in order to acknowledge that hate crimes are unique from other crimes, a message that could engender potentially rehabilitating effects on victims and their larger communities by paying them respect and offering them special recognition in the wake of tragedy and suffering. Whenever a hate crime is committed, the victim’s entire community is left feeling attacked, vulnerable, fearful, isolated and unprotected by the law. Furthermore, hate crimes are more likely to lead to retaliation and result in escalating inter-group violence, permanently disrupting the peace of society. Therefore, it is important to realize that hate crimes must be treated differently than other crime. In order to understand the rehabilitative effect of hate crime laws, it is enough to imagine how unjust it would be if we couldn’t classify the Orlando shooting as a heinous attack against the LGBTQ community, or in other words, a hate crime. Not being able to call it what it is would discount the pain and suffering that the entire LGBTQ community has endured in the aftermath of the shooting. Additionally, by increasing the penalty for a crime, hate crime legislation generates an added-on deterrent effect. Victims are more likely to report hate crimes as such if they know that they will be recognized by the law, on a local level even before a federal charge is considered.

There is indeed broad public support for hate crime laws: a 2007 Gallup poll showed that 68 percent of Americans favored expanding hate crimes laws to include sexual orientation and gender identity while a 2007 Hart Research poll showed large majorities of every major subgroup of the electorate – including such traditionally conservative groups as Republican men (56 percent) and evangelical Christians (63 percent) – expressed support for strengthening hate crimes laws to include sexual orientation and gender identity. With Charleston, Orlando and countless other tragedies constantly reminding us that we aren’t doing enough to combat hate-fueled violence, and with the general public recognizing the practical as well as symbolic importance of hate crime legislation, it is way past the time that all US states have their own, all-encompassing hate crime laws.