Hate crime legislation takes into consideration the factor of the crime victim being targeted specifically because he or she is a member of a protected group in addition to the actual criminal act against him or her. Hence, the victim has been singled out in a way that sends a message to other members of the group based on the hatred of or prejudice against the group.
Definitions
The Federal Bureau of Investigation (FBI) defines a hate crime as a criminal offense committed against a person, property, or a group that is motivated in whole or in part by the offender’s bias against a race, ethnicity, national origin, religion, disability, or sexual orientation. This definition forms the basis of the Hate Crimes Statistics Act of 1990. However, the FBI has no federal jurisdiction to investigate hate crimes in which the motivation is sexual orientation and can only investigate crimes based on disability bias as it relates to housing rights. The FBI’s involvement in civil rights investigations is rooted in the 1964 Civil Rights Act, a response to the need to investigate and prosecute crimes against those working for equal rights for Black Americans.
Although the basic premise of bias is the same, state and federal hate crime legislation differs in terms of which groups are included as protected classes and under what circumstances. The federal hate crime law, passed in 1969, for instance, covers only race, color, religion, and national origin and applies only if the crime occurs when the victim is attending public school or is at work or participating in one of four federally protected activities (18 USC § 245). Individual state laws vary widely.
Pros and Cons of Hate Crime Legislation
People who oppose hate crime legislation argue that the crimes to which it applies to are already illegal under existing law. Opponents also tend to argue that a crime is a crime, and hate crime victims should not be accorded special treatment, since all crime victims suffer. However, hate crimes apply to particularly vulnerable groups, groups that have been targeted in the past and are in need of extra protection. As “message crimes,” the sentence enhancements of hate crime legislation send a warning to perpetrators that singling out these group members is unacceptable. Perpetrators of bias crimes choose to commit these acts precisely because of the characteristics of their particular targets. In that case, the penalty speaks specifically to the offenders’ motivations, a factor that is taken into account in other cases, such as the differing degrees of a murder conviction.
Some feel that hate crime legislation grants special rights to protected groups or is politically motivated to grant equal treatment to these groups in society. Hate crimes are perpetrated by individuals who have underlying fears of others who are different. These crimes are often attempts to prevent the equal rights of other citizens. In that sense, the legislation does work to contribute to the social and political equality of all people regardless of group membership—equality that offenders try to delay or deny. Protected groups may need this legislation until equal rights are truly in effect and individuals are no longer targeted because of who they are.
The criticism that hate crime legislation punishes free speech has also been raised. However, the legislation only applies when a criminal act has been committed and then only in certain circumstances. Preaching hatred is constitutionally protected speech under the First Amendment, and hate crimes legislation does not punish anyone for holding biased views or speaking about them.
Hate Crime Statistics
The Hate Crime Statistics Act of 1990 authorizes the Justice Department to collect data on hate crimes and publish annual findings. The act covers crimes based on prejudice concerning race, religion, sexual orientation, ethnicity, and disability. There are some significant challenges with collecting data on hate crimes. One is that hate crime victims often do not report the crimes to the police. Coming from groups that face societal stigma and discrimination, these crime victims often distrust police and courts or fear retribution if they come forward. Another significant issue is that reporting these data to the FBI is voluntary. Consequently, hate crimes are underreported. The most recent estimate by the Bureau of Justice Statistics is that hate crimes have been underestimated by as much as 16 to 23 times for the past 15 years.
Based on data from two data sources, the FBI and the National Crime Victimization Survey (NCVS), the Bureau of Justice Statistics reported in 2005 that between July 2000 and December 2003 there was an annual average of 210,000 hate crime victimizations. Hate crimes tend to be serious violent crimes. Most (84%) of the hate crimes were crimes of rape, sexual assault, robbery, or assault. Approximately 44% of the crimes were reported to police.
Existing Legislation
As of 2004, four states had no hate crimes legislation, two states had legislation that does not specify categories, 15 states had laws that did not include the categories of sexual orientation or gender identity, 21 race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation.
Proposed Legislation
Hate crimes legislation was introduced into the U.S. Congress in 1997 and has been called various names, such as the Hate Crimes Prevention Act, the Children’s Safety Act, and the Local Law Enforcement Hate Crimes Prevention Act. These acts (or as amendments to other acts) sometimes passed, but they would be stripped out of the acts before final votes. Hate crimes legislation was introduced into both houses of Congress in May 2005. Called the Local Law Enforcement Enhancement Act, this law expands federal protection to sexual orientation, gender, gender identity, and disability. Most recently, in 2007, the Local Law Enforcement Hate Crimes Prevention Act, renamed the Matthew Shepard Act, passed in the House of Representatives. It was added as an amendment to the Senate Defense reauthorization bill. However, in September 2007, Senate Democrats said they lacked the votes to pass the two together, and before the bill went forward the amendment was removed. Advocates for the lesbian, gay, bisexual, and transgender community are lobbying hard for this bill because they believe it provides needed protection for those targeted based on their sexual orientation or gender identity, the third largest category of hate crimes.
Bibliography:
- Harlow, C. W. (2005). Hate crime reported by victims and police. Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics. states included sexual orientation, and eight states included both sexual orientation and gender identity as protected classes.
- In 1994, U.S. Congress passed the Hate Crimes Sentencing Enhancement Act, which applies to attacks and vandalism in national parks and on other federal property. The protected categories include
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