When a transgender woman was murdered last year after assisting Madison Heights police with a drug bust, some wondered why the killer was not charged with a hate crime, though her body had been badly mutilated and burned.
In January, Channel 7 News reported on a distraught mother crying out for murder prosecution after her gay, developmentally challenged son was beaten and stabbed to death in a fight after accidently breaking someone's sunglasses in the stairway of an apartment building.
In the past few weeks the media has been abuzz over the Treyvon Martin shooting, an incident where an Hispanic man followed a black teenager he thought "looked suspicious" coming out of a 7-11 store wearing a hoodie and carrying snacks.
Last week reports that Detroit Tiger Delmon Young was charged in New York with a hate crime for using anti-semitic remarks and tackling a tourist while drunk, have sports fans thinking about what it means to be a bigot.
And in donut shops and diners across the country, people make the seemingly logical argument that anytime someone beats, burns, mutilates, or murders another human being, it is a crime done in hate and should be punished the same.
But not all crimes are hate crimes. Not all crimes with a victim that is a part of a protected class are hate crimes, and not all states handle hate crimes the same way. It can get pretty complicated. But knowing the essential aspect of a hate crime can clear up some of the confusion.
In the case of the transgender woman, police determined that the motive for the murder was revenge, since it happened just days after learning that the victim had assisted police in busting a suspect for drugs. In the stabbing death, the killer was charged with manslaughter because police assessed the death was the result of an un-planned fight. The facts are not completely in yet on the Treyvon Martin death, and the number of conversations on the subject will continue to grow as we move toward a trial.
BTL asked Michigan ACLU attorney Jay Kaplan to help explain what makes a crime a hate crime, and what the significance of the designation is.
"I think we first need to have the understanding of what a hate crime is. I think that term often is used to describe anything that might be offensive to particular group of people and/or to include statements that are against a particular group of people. That would not be a hate crime and certainly speech disapproving of a particular group is protected by the First Amendment. A hate crime is a crime of violence against a person and it's the hate towards that person's membership in a particular group. We see bias crimes against particular groups of people because of their race, their religion, their sexual orientation and their gender expression, and we want to make sure that they are addressed as such, because once again, this type of crime victimizes not only the person who was attacked, but the whole membership of people that this person belongs to. It's very clear from crime statistics that certain populations are disproportionately victims of crime motivated by animus towards their groups. You can't say that every crime is a hate crime. A random burglary of someone's house is not a crime of violence towards that person nor was it motivated by animus because of that person's race, religion, etc."
History of hate crimes
The FBI website gives an ongoing list of hate crime news and prevention resources. It explains the origins of hate crimes legislation. "Crimes of hatred and prejudice — from lynchings to cross burnings to vandalism of synagogues — are a sad fact of American history, but the term 'hate crime' did not enter the nation's vocabulary until the 1980s, when emerging hate groups like the skinheads launched a wave of bias-related crime. The FBI began investigating what we now call hate crimes as far back as World War I, when the Ku Klux Klan first attracted our attention. Today, we remain dedicated to working with state and local partners to prevent these crimes and to bring to justice those who commit them."
The site also explains the 2009 legislation, which gives the Federal government the right to prosecute hate crimes when states fail to do so. "The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 gives the FBI authority to investigate violent hate crimes, including violence directed at the gay, lesbian, bisexual, and transgender community.
This new federal civil rights law criminalizes willfully causing bodily injury (or attempting to do so with fire, a firearm, or other dangerous weapon) when:
(1) the crime was committed because of the actual or perceived race, color, religion, national origin, of any person, or;
(2) the crime was committed because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person, and the crime affected interstate or foreign commerce, or occurred on federal property.
Kaplan explained that this legislation is particularly important in states like Michigan where there is no state-level protection against bias crimes against people based on their sexual orientation. That doesn't mean the work is done though.
Even when the case is clear, there is no guarantee that the federal government will step in. "The reality is that most crimes are handled by the state criminal justice system, and our state criminal justice system should recognize that LGBT people are disproportionately targets of violence because of their sexual orientation, gender identity and expression. Our state has a hate crimes law that recognizes other categories that have been targeted, such as race and religion. Because of the history of discrimination and violence against LGBT people, they should be included in our state laws."
Equality Michigan tracks incidents of violence. Their website states, "During the first half of 2011 alone, Equality Michigan received reports of 83 incidents of violence or intimidation targeting gay and transgender residents that are considered hate crimes under the Shepard-Byrd Act. However, because the statewide hate crime law is not comprehensive, incidents against gay and transgender Michiganders that are clearly motivated by anti-gay or anti-transgender bias are ignored as hate crimes. … This discrepancy between what our state considers a hate crime and what our nation defines as a hate crime is denying too many Michigan residents the right to a fairly prosecuted trial. Crimes should be prosecuted on the bases of both the motive behind the crime and the criminal act."
NPR's Carrie Johnson recently explored the limited use of the Shepard-Byrd Act, reporting that in the three years since it was enacted it has only been used nine times. In an interview with Johnson, Law Professor Sam Bagenstos explained that federal prosecutors have strict limitations. "This is not a statute that prohibits speech at all. It prohibits only violent conduct. And it's not a statute that prohibits violent conduct where there happens to be some racial epithet spoken. I mean, there has to be enough evidence that the victim was targeted because of the victim's race or other protected status," said Bagenstos.
Another issue is that the Federal government can only step in when there is a compelling reason to do so, such as lax prosecution at the local or state level, when interstate commerce is affected or when the crime occurs on Federal land.
Freedom from societal intimidation, prejudice, and hate-driven violence is one of many issues that equal rights groups in Michigan are striving for. "We encourage Michigan to adopt an LGBT inclusive hate crimes law because LGBT people are disproportionately victims of hate crimes. We support hate crimes legislation that makes it clear that speech protected by the First Amendment is not prohibited or classified as a hate crime," Kaplan said.
If you or someone you know has experienced discrimination, intimidation, harassment or violence because of sexual orientation, gender expression or gender identity, contact Equality Michigan's Department of Victim Services at [email protected] or 1-866-962-1147.
For more information on Equality Michigan, go to http://equalitymi.org.
For more on the ALCU, go to http://www.aclumich.org/courts/lgbt-project.