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House Subcommittee Reviews Expansion of Hate Crimes Legislation

On April 17, the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security held a hearing on the “Local Law Enforcement Hate Crimes Prevention Act” (H.R. 1592). The hearing considered efforts to include gender, sexual orientation, gender identity, and disability in federal hate crimes (also known as bias crimes) legislation.

Rep. Jerrold Nadler (D-NY) said, “Whether it is because of the actual or perceived race, color, religion, national origin, sexual orientation, gender, gender identity, or disability of the victim, these violent acts [that] often can cause death or bodily injury are absolutely reprehensible. They target not just an individual but an entire group. These crimes do, and are often intended to, spread terror among all members of the group. And they are intended not merely to do so, but often to deter members of the group from exercising their constitutional rights, sometimes from simply walking down the ‘wrong’ street.”

Frederick Lawrence, professor at The George Washington University Law School, said, “Gender, sexual orientation, gender identity, and disability ought to be included in a federal bias crime law as they are in the [Local Law Enforcement] Hate Crimes Prevention Act…Opponents [of] including gender generally do not argue that women as a class are unsuitable for bias crime protection…Instead, opponents argue that crimes against women are not real bias crimes, that is, they do not fit the bias crime model. The argument against including sexual orientation and gender identity instead looks to the qualities of the characteristic itself. Some opponents, either because they view sexual orientation and gender identity as a choice and not as an immutable characteristic, or because they are wary of giving special rights to gays and lesbians, argue that homosexuals do not deserve inclusion in bias crime statues. Both sets of arguments, however, are ultimately flawed.” Mr. Lawrence continued, “Finally, including disability in a federal bias crime law would be an appropriate extension of the congressional commitment to the rights of the disabled.”

Mr. Lawrence added, “Those who oppose the inclusion of gender in bias crime laws argue, among other things, that victims of many gender-related crimes are not interchangeable, and that victims often have a prior relationship with their attackers. Because assailants are acquainted with their victims in many gender-related cases, the argument goes, the victims are not interchangeable and the crime does not fit into the bias crime category. Particularly in cases of acquaintance rape and domestic violence, the prior personal relationship between victim and assailant makes it difficult to prove that gender animus, and not some other component of the relationship, is the motivation for the crime.” Mr. Lawrence concluded: “[g]ender-motivated violence, however, should be included in bias crime statutes. This is not to say that all crimes where the perpetrator is a man and the victim is a woman are bias crimes. But where the violence is motivated by gender, this is a classic bias crime. This is most obviously true in cases of stranger rape or random violence against women.”

“I believe Congress should decline the invitation to enact hate crimes legislation for both constitutional and practical reasons,” said Timothy Lynch, director of the Project on Criminal Justice at the Cato Institute. Mr. Lynch stated, “Crime is a serious problem, but under the U.S. Constitution it is a matter to be handled by state and local government.” Mr. Lynch then outlined six policy reasons Congress would not enact federal hate crimes legislation. “First it is imperative that federal law enforcement focus on threats, such as al-Qaeda…Second, all of the violent acts that would be prohibited under the proposed bill are already crimes under state law…Third, a federal law is not going to prevent anything. Any thug that is already inclined to hurt another human being is not going to lay down the gun or knife because of some new law passed by Congress…Fourth, it is important to note that the whole concept of ‘hate crimes’ is fraught with definitional difficulties. Hate crimes generally refer to criminal conduct motivated by prejudice…For the proponents of hate crime laws, the dilemma is this: if some groups (women, gays, environmental political activists, whatever) are left out of the ‘hate crime’ definition, they will resent the selective depreciation of their victimization. On the other hand, if all victim groups are included, the hate crime category will be no different than ‘ordinary’ criminal law…Fifth, proponents of hate crime legislation believe that such laws will increase tolerance in our society and reduce intergroup conflict. I believe hate crime laws may well have the opposite effect…Sixth, hate crimes legislation will take our law too close to the notion of thought crimes. It is true that hate crime laws that presently exist cover acts, not just thoughts. But once hate crime laws are on the books, the law enforcement apparatus of the state will be delving into the accused’s life and thoughts in order to show that he or she was motivated by bigotry.”

Utah Attorney General Mark Shurtleff stated: “This much-needed legislation would remove unnecessary jurisdictional barriers to permit the United States Department of Justice to prosecute violent acts motivated by bias and hate and to enhance existing federal law by providing new authority for crimes where the victim is intentionally selected because of his or her gender, gender identity, sexual orientation, or disability. Under current law, the Justice Department can only prosecute crimes motivated by the victim’s race, religion, or national origin when that person is engaged in a federally protected activity, such as voting. Legislative proposals, such as the [Local Law Enforcement Hate Crimes Prevention Act], however, would permit federal prosecution of hate crimes irrespective of whether they were committed while the victim was engaged in protective activities.” Mr. Shurtleff added, “Laws like H.R. 1592 do not create any new crimes. They do not punish people for hating. They simply provide a tool to the judicial system to enhance or increase the penalty if the trier of fact determines beyond a reasonable doubt that a crime was committed against the victim primarily because of actual bias or prejudice against a group to which that victim belongs. The prosecution must prove that the defendant demonstrated the bias or prejudice at the time the crime was committed. It must show more than just evidence of an abstract belief, membership in an organization, or expressions of hatred. That evidence must be ‘specifically related’ to the offense.”

Focusing his testimony on issues of free speech, Brad Dacus, founder and president of the Pacific Justice Institute, said, “I would like to focus briefly on another problem with this legislation the alarming potential, as evidenced by actual cases and situations, for well-intentioned hate crimes legislation to squelch free speech, particularly religious free speech.” Mr. Dacus outlined several lawsuits in California, which he testified, “has taken a very aggressive approach to hate crimes enforcement.” Mr. Dacus stated, “Historically, both Congress and our judiciary have been vigilant to balance the rights of competing and even opposing speech rights of a wide diversity of individuals and groups, even when the views expressed are unpopular and perhaps even divisive.” He continued, “Unfortunately, recent developments, particularly in California…demonstrate that the rationale behind hate crimes laws and similar efforts to provide greater protections to one group over another is undermining basic constitutional protections, including free expression and freedom of religion.” Mr. Dacus concluded: “A decision by Congress to inject the federal government into the culture wars and fundamental theological disputes can only engender further divisiveness and limitations on free speech…I urge you not to allow natural feelings of sympathy for crime victims to lead you to enact this sweeping legislation that will sacrifice fundamental constitutional rights on the altar of political expediency.”

Jack McDevitt, associate dean for Research and Graduate Studies at Northeastern University, and David Ritcheson, of Harris County, Texas also testified.

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