Hate crime legislation hailMaryShelley kitchen door
This page was created for the purpose of furthering discussion of
prejudice and the burden it is. Early in the summer of 2000 I e-mailed
Senator Slade Gorton, urging his support of the hate crimes bill
introduced by Senator Kennedy. Here is his reply and some observations
I thought he ought to consider. Update printable update (one page)
Observations for consideration
Common objections and replies
Recommendation for Senator Gorton
July 12, 2000Dear Mr. Wolfsehr,
Thank you for contacting me about federal hate crimes legislation. I
appreciate hearing from you, and apologize for the delay in my response.As you know, a number of particularly brutal murders, such as those of
Matthew Shepard in Wyoming and James Byrd, Jr. in Texas, have renewed
calls for federal hate crimes legislation.
Federal civil rights laws currently cover certain offenses against
victims based on race, color, religion or national origin. Many states
have laws covering crimes based on gender, disability or sexual
orientation, including Washington.Senator Edward Kennedy introduced the Hate Crimes Prevention Act of
1999. Among other things, this legislation would broaden federal
jurisdiction under civil rights laws by adding gender, disability and
sexual orientation to the categories protected by these laws. This
legislation recently passed the Senate as an amendment to the Defense
Authorization bill. I voted against the Kennedy amendment for one
fundamental reason - I am opposed to the increased federalization of the
criminal justice system and believe such federalization raises serious
constitutional concerns. I voted against juvenile justice reform
legislation last year for the same reason. State and the proposed
federal law in this area are not necessarily consistent. While many
state laws allow for the imposition of the death penalty for crimes as
heinous as the Byrd murder, the Kennedy amendment would not allow the
death penalty to be imposed if the crime was prosecuted as a hate crime
at the federal level.I did support an amendment introduced by Senator Orrin Hatch that
authorizes federal law enforcement authorities to provide technical,
forensic, prosecutorial or any other assistance to states and local
entities in the criminal investigation or prosecution of hate crimes, as
well as authorizing $10 million for grants to assist in the
investigation and prosecution of hate crimes. The Hatch amendment also
provides for a comprehensive study of the way states deal with hate
crimes, including the number of hate crimes reported and investigated in
the state, the percentage of such crimes that are prosecuted and result
in conviction, and the duration of sentences for such convictions.
While supporters of a broad federalization of hate crimes suggest that
such legislation is necessary because of a disparity in the manner in
which state and local authorities prosecute hate crimes as compared to
other crimes, there is no empirical evidence to support this. The Hatch
amendment would provide the evidence needed to answer that question.
The Hatch amendment also passed the Senate during consideration of the
Defense Authorization bill. I will keep your thoughts in mind as the
legislative process continues.Again, thank you for writing. Please do not hesitate to do so in the
future.Sincerely,
SLADE GORTON
United States SenatorSG/jlb
Update
The hate crimes bill was passed by the Senate 57-42 in June, Gorton being among
the those voting against it. September 13 the House voted 232-192 voted to instruct
the House leadership to keep the hate crime as passed by the Senate as an
amendment to the defense authorization bill. On October 5 the Republican house leadership
removed the hate crimes measure from the conference report, preventing the measure
from being sent to the President and being signed into law.
Observations concerning Senator Gorton's positionDoes the Hatch amendment Senator Gorton supported include hate crimes
against persons based on sexual orientation or perceived sexual orientation among
those to be studied? (The Hatch amendment does not include sexual orientation.)
Note that the effect of Gorton's exclusion of sexual orientation would make
prosecution of hate crimes, such as the murder of Matthew Shepard, more
burdensome than the prosecution of other hate crimes. For example, the federal
assistance provided to Jasper, Texas was considerable, $ 300,000 in grant
money as well as forensic assistance of the FBI and other cost saving service.
Laramie, Wyoming did not receive any such assistance, because sexual orientation
was not included as describing protected groups. As a consequence of the cost of
prosecuting the Shepard murder, Laramie had to furlough five law enforcement
employees. Since there are groups that malign groups based on sexual orientation,
many of them able to do so on television and radio nationally, and attacks on gays
and lesbians are increasing, clearly that the increase in the cost would be a
burden left to local and often very limited resources to deal with under the plan
Senator Gorton prefers. Thus he would have the local government decide whether
or not it could afford to protect citizens who belong to a particular minority.
Links for further information regarding this are available at:
Human Rights Campaign - Working for Lesbian and Gay Rights (use "furlough" as
search word at this site for specifics on the Jasper/Laramie comparison)Senator Gorton's concern that more inclusive federal hate crime law would interfere
with state penalty provisions is not one that can be illustrated with the cases he
mentions. In the Byrd case, although the existing federal law provided technical
and financial assistance, the local authorities were free to proceed with the case as
they saw appropriate. Indeed, the death penalty was asked for and granted. In the
Shepard case, one of the perpetrators, Russell Henderson pleaded guilty in exchange
for a life sentence. The other perpetrator, Aaron McKinney, in an agreement worked
out with the assistance of Matthew Shepard's mother, Judy, received two life terms.
Federal financial and technical assistance would have provided substantial relief from
the burden of the cost of the investigation and prosecution of the crime without any
interference with the outcome. Gorton's suggestion that the force of law might be
weakened does not comport with the record.People who are not gay are sometimes perceived as gay and become victims of
gay bashing. July 21, 2000 a news report related that a straight couple from Ohio
was attacked by someone who thought they were gay.Instances in which law enforcement authorities omit information in reports that
would identify attacks as being based on sexual orientation or perceived sexual
orientation distort understanding of the frequency of such hate crimes. A case in
Tacoma two years ago, in which the police report of an attack on a young man
(who is not gay but was clearly thought to be gay by his attackers) omitted any
mention of the epithets used by the attackers, despite the objections of the young
man and his family. If local and state authorities choose not to identify attacks on
gay persons or persons who are perceived to be gay as hate crimes, what
protection does the legislation Senator Gorton supported provide?Promoting the idea that gay people are a threat to society is an industry and a
means of motivating people to contribute money to so-called religious organizations
and political campaigns. Hate crimes are very often intended to intimidate groups of
people. The victims are not those who are attacked only, but are those who, by reason
of their belonging to the same group as the victim, live in fear.Commonly voiced objections to the Kennedy Hate Crimes Prevention Act:
Objection - All violent crimes are hate crimes. A beating is a beating. Murder is murder.
Victims and friends and families of victims of any violent crime suffer as much as victims of
hate crimes.
Response - Clearly our legal system has long recognized significant difference in violent
crimes that are premeditated or that are carried out in ways that aggravate suffering.
The perpetrator who, in the act of committing car theft, encounters the owner of the car and
injures or kills the owner, is legally seen as having committed a different crime than that of one
who plans to injure or kill. The robber of a bank or convenience store is not usually motivated
by hate for bank or store employees, but rather is motivated by desire for the money the
robber expects the employee to hand over. If the robber injures or kills an employee, it is
more often than not with the purpose of completing the crime or to avoid being apprehended.
The robber may even express the desire not to injure or kill those whose cooperation the robber
needs to accomplish the crime. The bank robber does not act with the intent of abolishing
banks. Perpetrators of hate crimes act with the intent of eliminating, by destruction or
frightening away persons belonging to some group. The difference can be seen very clearly
when, for example, people who are not gay or lesbian are attacked by persons who perceive
their victims to be gay.
Objection - Providing protection to groups such as gays and lesbians is unfair because it
results in their having special rights.
Response - Like the previous objection, this one ignores fundamental differences between
crimes long recognized by our legal system. Hate crimes, because they are very often
intended to intimidate groups of people and those who sympathize with them, often
can be more difficult to investigate and prosecute. Witnesses are more likely to be
reluctant to testify, particularly if they have the sense that the perpetrator of the crime
is likely to have more of the sympathy of society generally than the victim. Hate crimes are
political in nature and are intended to subvert government. Such crimes often are
clearly terrorism. As such crimes are often more costly and harmful to society's
means of protecting its varied members, it is fitting that local governments receive
assistance, as Jasper, Texas did, in dealing with hate crimes. Extending the existing
law, that substantially relieved Jasper of the burden of investigating and
prosecuting the murder of James Byrd Jr., so as to relieve communities such as Laramie
of a similar burden is just and proper.
Objection - The inclusion of gender, disability, and sexual orientation in hate crimes
law leaves the white able-bodied heterosexual man as the only person not provided with
special protection.
Response - This is not true. Crimes committed against men because they are
heterosexual, or male would clearly be hate crimes. The proposed law does not exclude
such victims. Sexual orientation means just that. The word heterosexual describes
a sexual orientation and, however unlikely it may seem, attacks on heterosexuals by people
who are motivated by hatred of heterosexuality would clearly be included as hate crimes.
Gender also includes men. The only exception is that of able-bodied. The protection of
this group against the attacks upon them by the disabled should be included by adding
the word ability along side of disability.Recommendation to Senator Gorton
One of the great benefits of engaging in Mary Shelley's exercise of
untried resources of mind is the greatly increased confidence that
many problems that seem insurmountable may be solved. In great
part this is because we notice that, when we disagree with others
on some issue or other, but do not take the oxymoronic out of "agreeing
to disagree," we find eventually much that is considered sound
principle on opposing sides. This has been the case here. My good
friend Joe De Benedictis and I have taken opposing positions on the
issue of hate crime legislation and the Kennedy bill in particular.
However, we not surprisingly recognized, even in our impassioned
exchanges, that there were underlying principles we held in common.
Some of Joe's objections made this entirely clear to me and gave impetus
to my further searching for a remedy more perfect than that Senator
Kennedy proposed. Joe pointed out that not too long ago Mr.Versace
was murdered by a person who would qualify as disabled because of his
HIV status. There was some evidence that the lack of that disability on
the part of Mr. Versace was motive for the murder. Joe insists that the
principle of equal protection is paramount. I quite agree and once
aware of the manner in which the Kennedy bill wording failed to
recognize that some might be victimized by disabled persons who
hate them because they do not share that disability. We suggest that
Senator Gorton consider authoring a bill identical to the Kennedy bill,
but which adds ability as one of the differentiating factors that
define a protected class.
We may advance even further towards perfection with the encouragement
of another good friend, Jackie Enx. We would also recommend that
Senator Gorton add language that would include those who, by reason of
political or commercial advocacy or affiliation, are victims of crimes perpetrated
by those motivated by animosity against a political or commercial enterprise.
Your comments and questions are welcome: e-mail tomwolfsehr@yahoo.com
hailMaryShelley kitchen door