Ariella Rotramel

Introduction

On June 12, 2016, 49 people were killed and 53 wounded in the Pulse nightclub shooting in Orlando, Florida. It was the deadliest single person mass shooting and the largest documented anti-LGBTQ attack in United States history. The attack on a gay nightclub on Latin night resulted in over ninety percent of the victims being Latinx and the majority being LGBTQIA-identified. This act focused on an iconic public space that provided LGBTQIA adults an opportunity to explore and claim their sexual and gender identities. The violence at Pulse echoed the 1973 UpStairs Lounge fire attack in New Orleans that killed thirty two people. These mass killings are part of a broader picture of violence that  LGBTQIA people experience, from the disproportionate killings of transgender women of color to domestic violence and bullying within schools. There are different perspectives within the LGBTQIA community about responses to hate-motivated violence. These debates concern whether the use of punitive measures through the criminal legal system supports or harms the LGBTQIA community, and whether there is a need for more radical approaches to address the root causes of anti-LGBTQIA violence. This research profile explores hate crimes as both a legal category and broader social phenomenon.

What are Hate Crimes?

Anti-LGBTQ hate crimes have had a simultaneously spectacular and invisible role in U.S. society. Today, hate crimes are defined as criminal acts motivated by bias towards victims’ real or perceived identity groups (Blazak 2011, 245). Hate crimes are informal social control mechanisms utilized in stratified societies as they are part of what Barbara Perry calls a “contemporary arsenal of oppression” used to police identity boundaries (Perry 2009, 56). Hate crimes occur within social dynamics of oppression, where othered groups are vulnerable to systemic violence, pushing marginalized groups further into the political and social edges of society. It is theorized that hate crimes are driven by conflicts over cultural, political and economic resources, bias and hostility towards relatively powerless groups, and the failure of authorities address hate in society (Turpin-Petrosino 2009, 34).

A drawing of Vasco Núñez de Balboa executing indigenous Panamanians by war dog for same-sex practice. By Theodor de Bry

Since the colonial period, violence against members of the LGBTQ community has been documented in the Western Hemisphere. In a famous 1594 engraving, Theodore de Bry documented the slaughter of indigenous Panamanians for same-gender sexual acts under the direction of the Spanish Vasco Núñez de Balboa. Colonists drew upon an interpretation of Judeo-Christian theology that viewed non-procreative sex and gender non-conformity as sinful.  Thus, various forms of violence toward people who did not conform to gender and sexual norms, along with social exclusion, were viewed as permissible.

With the advent of sexual identities such as the “homosexual” in the late 1800s, anti-sodomy and related laws became increasingly used to target LGBTQ people in North America and Europe during the 20th century. These same laws were also imposed on indigenous peoples throughout the world as a result of colonialism. Yet, incidents such as the 1960s Compton’s Cafeteria and Stonewall riots demonstrated that LGBTQ people, particularly trans women of color, were no longer willing to tolerate police harassment that resulted in arrests and violence because of who they were. As the modern LGBTQ rights movement emerged, activists challenged the idea that they deserved to be targeted for violence due to their identities. Despite the long history of bias-based crimes, it took centuries for these behaviors to become understood and labeled as hate crimes (Turpin-Petrosino 2009).

A memorial in front of the historic Stonewall Inn after the Pulse Nightclub shooting, Pride weekend 2016.

Prejudicial cultural norms perpetuate otherness, promoting prejudice, normaling and rewarding hate, as well as punishing those who respect and embrace difference (Levin and Rabrenovic 2009, Perry 2003). Cultures of hate identify marginalized groups as enemies through dehumanization and perpetuate group violence (Levin and Rabrenovic 2009; Perry 2009). Perpetrators’ actions thus reflect an understanding and navigation of overarching social structures that separate the othered from the accepted. In the case of anti-LGBTQ hate crimes, heterosexism is an oppressive ideology that rejects, degrades, and others “any nonheterosexual form of behavior, identity, relationship or community”.  It provides a complementary bias to cissexism, the oppressive ideology that denigrates transgender, gender non-binary, genderqueer, and gender non-conforming people (Herek 1992, 89). Anti-LGBTQ hate crimes are based in a view of the LGBTQ community as a suitable target for violence (Perry 2009; Alden and Parker 2004; Green, McFalls, & Smith 2001; Herek 1992). Such crimes are often identified as hate-based when “the perpetrator making homophobic comments; that the incident had occurred in or near a gay-identified venue; that the victim had a ‘hunch’ that the incident was homophobic; that the victim was holding hands with their same-sex  partner in public, or other contextual clues” (Chakraborti and Garland 2009, 57-58). Importantly, anti-LGBTQ hate crimes intersects with hate crimes against gender, racial and ethnic, and other marginalized people (Dunbar 2006).

State-enacted or sanctioned violence towards LGBTQIA people has not been deemed a form of hate crime though it draws upon hatred towards a group of people. The hate crime framework has focused largely on the acts of private individuals rather than addressing larger institutionalized forms of hate-motivated violence such as forced conversion therapy or abuse within the criminal or military systems. One estimate attributes almost one-quarter of “anti-gay hate crimes” to police officers (Berrill 1992). Anti-LGBTQ violence committed by police officers further undermines LGBTQ victims willingness to report crimes generally, particularly when experiencing police violence firsthand or having a communal knowledge that police officers may not view LGBTQ victims as deserving of appropriate services. Even when victims are willing to take the risk of reporting, attempts to report a hate crime can be unsuccessful. For example, despite a Minnesota state law requiring police to note in initial reports any victims’ belief that they have experienced a bias-motivated incident, responding officers fulfilled less than half of hate crime filing requests between 1996 and 2000 (Wolff and Cokely 2007, 15). Due to a mix of bias, lack of training, and limited applications, it is widely accepted that there continues to be significant underreporting of sexual orientation and gender-motivated hate crimes at the state and federal levels.

Criminalizing Hate

The Enforcement Act of 1871, also known as the Ku Klux Klan Act, marked the first effort at the federal level to criminalize hate crimes as it addressed rampant anti-black violence (Lurie and Chase 2004, 140). However, the Supreme Court’s United States v. Harris decision in 1883 greatly weakened the act and the ability of the federal government to intervene when states refused to prosecute hate crimes. In the wake of the mid-20th century Civil Rights Movement and violence against activists, the 1968 Civil Rights Law covering Federally Protected Activities was successfully passed and signed into law. It gave federal authorities the power to investigate and prosecute crimes motivated by actual or perceived race, color, religion, or national origin while a victim was engaged in a federally protected activity such as voting, accessing a public accommodation such as a hotel or restaurant, or attending school. The categories of identity named by the law reflected the key social categories of concern during this period and reflected the language of the Civil Rights Act of 1964.  However, it is important to note that the law excluded sex, reflecting an unwillingness to address gender-based discrimination fully rather than piecemeal through laws such as Title IX of the Education Amendments Act of 1972.

In 1978, California enacted the first state law enhancing penalties for murders based on prejudice against the protected statuses of race, religion, color, and national origin. While state lawmakers took the lead in developing explicit hate crime laws, federal legislators followed suit in the mid-1980s (Jenness and Grattet 2001). The emergent LGBTQ movement gained traction in the 1980s as the HIV/AIDS epidemic, its toll on the community, and intolerance galvanized activists. For example, New York’s Anti-Violence Project (AVP) was founded in 1980 to respond to violent attacks against gay men in the Chelsea neighborhood. A major concern for these groups was the lack of documentation of such crimes;  without evidence that these incidents were part of a broader picture of violence, it was difficult to push efforts to address hate crimes. As a lead member of the National Coalition of Anti-Violence Programs, AVP has coordinated an annual Report on LGBTQ and HIV-affected Hate Violence since the late 1990s. Such groups also have pushed for governmental efforts to collect data and criminalize hate crimes. In 1985, United States Representatives Conyers, Kenally, and Briggs proposed the Hate Crime Statistics Act (HCSA) to “require the Department of Justice annually to collect and publish statistics on crimes motivated by racial, ethnic, or religious prejudice” (Perry 2003; Conyers 1985, 1). The Committee on the Judiciary’s report argued further, “There can be little doubt that keeping statistics about hate crimes would be very useful. Communities and organizations that seek to combat hate crimes must guess at the frequency of their incidence and at any trends” (Conyers 1985, 1). It took five years for the Hate Crimes Statistics Act of 1990 (HCSA) to become law, and it did so only after sexual orientation was explicitly excluded  from the legislation. The law’s final two sentences emphasize:

States that nothing in this Act creates a right for an individual to bring an action based on discrimination due to sexual orientation.

Prohibits the use of funds appropriated under this Act to promote or encourage homosexuality.

Congress took great pains to emphasize that the legislation did not prevent discrimination against LGBTQ people nor did it support the community. They reinforced the point that Congress was not treating sexual orientation like other social identities that were already protected under civil rights laws. The Act resulted in the FBI collecting data from local and state authorities about hate crimes. There are major challenges to collecting accurate data as police are not consistently trained at the local and state levels to address anti-LGBTQ hate crimes. Moreover, there continues to be stigma and risk associated with identifying as LGBTQ to such authorities. Reporting practices thus vary dramatically across contexts, but the Act has assisted anti-violence groups in gaining official data to document violence.

The 1998 beating and torture death of college student Matthew Shepard in Laramie, Wyoming became a rallying point to address hate crimes more fully in the late 1990s. His murder received substantial media coverage and inspired artistic works as well as political action. As an affluent, white gay young man, Shepard became a symbol of anti-gay violence. His attackers were accused of attacking him because of anti-gay bias, but were not charged with committing a hate crime as Wyoming had no laws that covered anti-LGBT crimes. The attention to his death contrasted with the lesser attention given to Brandon Teena’s sexual assault and murder that was immortalized in the film Boys Don’t Cry (1999) or the untold number of murders of trans women, particularly women of color. ^[1]

While the particularities of the case have been debated, Shepard’s murder became iconic and served as a means of challenging U.S. lawmakers and society at large to address hate-motivated violence. The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act was passed by the US House of Representatives on October 8, 2009 and the US Senate on October 22, 2009 (Bessel 2010). James Byrd Jr., a Black man, was attacked, chained to a truck, and dragged to his death for over two miles in Jasper, Texas. Both crimes received national attention, and there was public outrage that neither Texas nor Wyoming could enhance the punishment for these bias-motivated murders (McPhail 2000).The act expanded protections to victims of bias crimes that were “motivated by the actual or perceived gender, disability, sexual orientation, or gender identity of any person,” becoming the first federal criminal prosecution statute addressing sexual orientation and gender identity-based hate crimes (Department of Justice 2019). It also increased the punishment for hate crime perpetrators and allows for the Department of Justice to assist in investigations and prosecutions of these crimes. On October 28, 2009 in advance of signing the act into law, President Obama stated, “We must stand against crimes that are meant not only to break bones, but to break spirits, not only to inflict harm, but to inflict fear.” His words emphasized the broader social context of hate crimes, as they are experienced as attacks on marginalized communities.

While federal laws address constitutional rights violations, each state has or does not have its own specific hate crime laws (Levin and McDevitt 2002). Today, there are a wide range of laws regarding hate crime protections across states, and they vary in regards to protected groups, criminal and/or civil approaches, crimes covered, complete or limited data collection, and law enforcement training (Shively 2005, ii). As of 2019, 19 states did not have any LGBT hate crime laws, and 12 states had laws that covered sexual orientation but did not address gender identity and expression (Movement Advancement Project 2009). Twenty states included both sexual orientation and gender identity in their hate crimes laws (Movement Advancement Project 2009). The majority of these laws were created in the early 2000s, with the inclusion of gender identity and expression following in recent decades.

Debating Hate Crime Laws

The arguments in support of hate crime laws include the fact that  offenders’ acts promote unequal treatment of not only individuals, but the broader communities that victims belong to; the long-term psychological consequences for victims; the violation of victims’ ability to freely express themselves, amongst other rationales (Cramer et al. 2013, Bessel 2010, Glaser 2005, Sullaway 2004).  It is widely acknowledged that the creation of laws serves to “form a consensus about the rights of stigmatized groups to be protected from hateful speech and physical violence” (Spade and Willse 2000, 41).

However, this approach centers on the perpetrator perspective that avoids a structural approach to oppression that acknowledges the numerous forms of bias and the overarching perpetuation of bias in society. Many scholars have critiqued the term “hate crime” as it erases the broader structures that support hate violence, instead placing the blame for such acts solely on individuals assumed to be pathological and acting out of emotion (Ray and Smith 2001; Mason 2001; Perry 2003; Lawrence 1999). Moreover, hate crime laws primarily function at the symbolic level with low rates of reporting and a lack of application of statutes to such crimes by authorities (McPhail 2000, 637, 645). Such laws do not focus on prevention of crimes, rather on the use of punitive measures to punish particular crimes.

Within a context of high incarceration rates of LGBTQ people as well as people of color, hate crime laws support rather than challenge mass incarceration (Meyer et al 2017, Center for American Progress & Movement Advancement Project 2016). Some activists argue for efforts to “build community relationships and infrastructure to support the healing and transformation of people who have been impacted by interpersonal and intergenerational violence; join with movements addressing root causes of queer and trans premature death, including police violence, imprisonment, poverty, immigration policies, and lack of healthcare and housing” (Bassichis et al. 2011:17).

A map of policy tallies for hate crime laws. See more maps here.

Contemporarily, there is no universal consensus about the role of hate crime laws in furthering the acceptance and inclusion of LGBTQ people in American society. For many people such laws carry with them an emphasis on the value of their lives and help to further their sense of belonging. Others, particularly LGBTQ activists engaged in broader social justice struggles, argue that such laws shore up a broken criminal justice system that is predicated on a violent logic that cannot truly benefit the LGBTQ community.

References

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Bessel, A. L. (2010). Preventing hate crimes without restricting constitutionally protected speech: Evaluating the impact of the matthew shepard and james byrd, jr. hate crimes prevention act on first amendment free speech rights. Journal of Public Law & Policy, 31, 735-775.

Blazak, R. (2011). Isn’t every crime a hate crime?: the case for hate crime laws. Sociology Compass, 5(4), 244-255.

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Cramer, R. J., Kehn, A., Pennington, C. R., Wechsler, H. J., Clark, Iii, J. W., & Nagle, J. (2013). An examination of sexual orientation- and transgender-based hate crimes in the post-matthew shepard era. Psychology, Public Policy, And Law 19(3), 355-368.

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Glaser, J. (2005). Intergroup bias and inequity: Legitimizing beliefs and policy attitudes. Social Justice Research, 18, 257-282.

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Perry, B. (2003). Where do we go from here? Researching hate crime. Internet Journal of Criminology, 3, 45-47.

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Ray, L., & Smith, D. (2001). Racist offenders and the politics of ‘hate crime’. Law and Critique, 12(3), 203-221.

Shively, Michael. (2005). Study of literature and legislation on hate crime in america. Retrieved from https://www.ncjrs.gov/pdffiles1/nij/grants/210300.pdf

Spade, J., & Willse, C. (2000). Confronting the limits of gay hate crimes activism: A radical critique. 21 Chicano-Latino Law Review, 21, 38-52.

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Turpin-Petrosino, Carolyn. (2009). Historical lessons: What’s past may be prologue. In  B. Perry et al (Eds.), Hate Crimes Volume 2 (pp. 23-39). Westport, CT: Greenwood Publishing Group.

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