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by Jessica Carreras
History has been made. On Wednesday, Oct. 28, President Barack Obama signed the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act into law, passed by the U.S. Congress as an attachment to the 2010 Defense Spending Bill.
In the case of the LGBT community, the act gives the federal government the ability to step in and help with prosecuting a hate crime based on sexual orientation or gender identity that takes place in a city or state that is unable or unwilling to take local action to bring the crime to justice. Currently, only 13 U.S. states offer fully inclusive hate crimes protections for LGBT people. Michigan is not one of them, and statewide legislation on bias-motivated crimes languishes in the Michigan Senate.
Now, it is up to legislators, groups like the Triangle Foundation and LGBT citizens of the state to figure out what this bill means for Michigan residents, how it will be enforced and what impact it will have on local hate crimes legislation.
Like many national LGBT groups, Michigan organizations and allies rejoiced the passage of federal hate crimes legislation. However, it remains to be seen how the act will impact hate crimes statistics, procedure and victims.
The Triangle Foundation is the only organization in the state that records statistics for LGBT hate crimes. In 2007, the center recorded 298 incidents – a 133-percent increase from the previous year – but reported a 14-percent drop in recorded hate crimes in 2008.
Triangle Executive Director Alicia Skillman said that the new federal legislation isn’t likely to impact how Triangle conducts their victim services work, however they will now have the added task of helping LGBT victims of hate crimes to figure out how they can possibly obtain federal assistance in the prosecution of the crime.
“The U.S. prosecutor here in Michigan has to take a look at every case that could be considered a hate crime against anybody to determine whether or not it rises to that level of motivated by bias,” Skillman explained, “and then to decide whether or not to become involved in that incident.”
That’s where things become tricky.
Although federal intervention in LGBT hate crimes cases is possible, it’s not guaranteed, and the guidelines for which cases are prosecuted under the federal law is up to the discretion of both local law enforcement and the U.S. prosecuting attorney of the jurisdiction the crime happens in.
Openly gay attorney and previous 36th District Court Judge Rudy Serra explained that sometimes, the decision is just a matter of politics. “To some extent, the decision about whether to prosecute a crime is political,” he said. “It reflects the level of an administration’s commitment to the policy embodied in the new law.”
In the case of federal hate crimes legislation, said Serra, the U.S. attorney’s office will collaborate with state officials to determine if a crime will be prosecuted under local, state or federal law. The Shepard and Byrd Hate Crimes Act will affect only LGBT hate crimes prosecuted by the federal government.
“The hate crime law is important because it authorizes the U.S. attorney to file federal charges in cases that might otherwise be mere state or local offenses,” he said. “The penalties are far greater for the federal offense.”
Serra expects that the government will want to enforce the law more strictly initially, meaning that many LGBT hate crimes could be taken up by the U.S. prosecuting attorney. “Since the statute is new, I would expect that the administration would, at least initially, want to handle matters under the new law so that perpetrators learn that there are significant teeth and major consequences if they violate the law,” he said. “It sends a message.”
Victims and their attorneys will also have the opportunity to appeal for federal assistance, but this in no way assures that they will be granted help.
As far as the legislation’s impact on committed hate crimes, Skillman is skeptical as to whether the federal legislation will actually influence would-be perpetrators to think twice before bashing, murdering or discriminating against an LGBT person. “It’s hard to say how the numbers may go,” she commented. “If people believe that it’s a federal crime to assault an LGBT person, that’s a reach – but some people may perceive it as that, so they may think twice before they do something.”
The Human Rights Campaign, which lauded the passage and was present at the signing of the bill, warns that the legislation is no substitute for statewide protections.
“The new federal law is no substitute for state hate crimes enforcement,” explained Deputy Communications Director Trevor Thomas. “The new law is a federal backstop to help local authorities investigate and prosecute these crimes. States will continue to have primary jurisdiction in the vast majority of cases.”
Michigan legislation ‘stuck’
In Michigan, this could mean that most LGBT victims of hate crimes may still not see their cases receive full justice – at least while the Senate is still Republican-controlled.
The Michigan bill that would add sexual orientation and gender identity and expression to the list of traits protected under bias-motivated crimes law passed the House of Representatives on May 20, and has remained stalled in the Senate Judiciary Committee ever since.
Like the Senate itself, the committee is Republican-controlled – by Sen. Wayne Kuipers (R-Holland) – and it’s up to the longstanding opponent of LGBT rights to decide when the bill will go to vote in the committee and be passed to the floor.
“They just haven’t scheduled it for a hearing, which is pretty much up to the discretion of the chair of the committee … and the chairperson of the committee sets the agenda as to which bills will be heard and when,” explained Jack Cardinal, legislative director for Sen. Gilda Jacobs (D-Huntington Woods), a proponent of LGBT rights. “This isn’t usually a topic that the Republicans like to address, so basically, it’s kind of stuck.”
Sen. Gretchen Whitmer (D-East Lansing), who is the minority vice chair of the Judiciary Committee in the Michigan Senate, said that any movement in the near future on local legislation is unlikely. “Unfortunately, it is not very likely that hate crime legislation will be taken up by the Republican-chaired Judiciary Committee anytime soon,” she told Between The Lines, “as there continues to be strong partisan resistance to establishing equality for all Michigan citizens, including those with a different sexual orientation or gender identity.”
Moreover, Whitmer added, the combination of a Republican majority in the Senate, the current focus on budget concerns and the passage of federal hate crimes legislation makes Senate passage in this session close to impossible. “While it is heartening to see progress on this issue at the federal level, it could create more challenges for passing state laws to offer equal rights and protection to all of our citizens,” she said. “The Republican line is often to defer to federal legislation rather than delve into controversial issues at the state level, and the recent action in Washington will enable them to do just that.”
Skillman stressed that the Triangle Foundation would continue to work for the bill’s passage, and to gain support in the legislature and from law enforcement officials.
The burden of support for the passage, however, also rests on local LGBT and allied activists. Skillman wants to make sure that the passage of federal hate crimes legislation doesn’t mean that Michigan LGBTs see themselves as a protected class.
“I want people to know that we still do not have hate crimes protection in Michigan,” she stressed. “No one should believe that we do. … Michigan needs LGBT hate crime protection, and our work is still going to continue down that road until we have protections in the state.”