An examination of sexual orientation- and transgender-based hate crimes in the post-Matthew Shepard era.

Hate crimes continue to persist in the United States and undermine the traditions and values to which our country aspires. Until recently, however, the stringent jurisdictional limitations of existing federal legislation made it difficult for the federal government to prosecute these crimes. In October 2009, President Obama signed into law the Matthew Shepard James Byrd Jr., Hate Crimes Prevention Act (the 'HCPA'). The HCPA significantly expands the federal government’s authority to prosecute defendants accused of hate crimes because it dispenses with a previous jurisdictional requirement that made it difficult to prosecute many hate crimes. The HCPA also represents an expansion of federal authority because it protects a broader class of victims than pre-existing federal hate crimes legislation. In addition to protecting victims of violent acts based upon race, color, religion, national origin, the HCPA is the first federal legislation to protect victims of crimes where the underlying motivation was the victim’s sexual orientation, gender, or gender identity. While many observers view this broad grant of federal authority as a monumental civil rights victory, critics view it as an unnecessary symbolic measure that is, in their view, part of a continuing trend toward 'overfederalization' of the criminal law. This article does not intend to contribute to the extensive body of scholarship devoted to the symbolism of hate crimes legislation or the propriety of the federal government’s authority to prosecute such crimes. Instead, this article refocuses the debate to address new issues regarding the federal government’s enforcement and implementation of this legislation. Drawing upon the principles of cooperative federalism, this article proposes a model of prosecution that ensures the federal government’s authority to prosecute hate crimes is not merely symbolic, but is implemented in a manner that respects the principles and boundaries of federalism in the criminal justice context. To accomplish these goals, this article proposes a regime that relies on federal-state collaboration to maximize resource allocation in the prosecution of hate crimes. This proposal also includes, among other things, allowing state prosecutors to receive special designations to prosecute these cases in federal court. This article concludes that a multi-jurisdictional approach is necessary to effectively address hate crimes in the United States.

ABSTRACTMinimal studies have investigated individuals’ evaluations of antigay hate crimes and hate crime legislation simultaneously, with most research focusing on one or the other. In a sample of 246 heterosexual undergraduates, the present study found that evaluations of antigay hate crimes and hate crime legislation were unrelated. Higher social dominance orientation (SDO) and crime control orientation scores were associated with more positive evaluations of antigay hate crimes. Positive evaluations of hate crime legislation were associated with more positive attitudes toward gay men and lesbians. We also found that the relationship between SDO and evaluations were mediated by crime control beliefs (for hate crimes evaluations) and antigay attitudes (for hate crime legislation evaluations). The present findings have possible implications for the manner in which organizations advocate for the extension of hate crime legislation to include sexual orientation.

In “Is Penalty Enhancement a Sound Idea?” Claudia Card calls into question hate crime legislation, querying whether hatred makes a crime worse, whether hatred of the sort pertinent to hate crimes is worse than a more personal hatred, and whether the message sent by hate crime legislation is the intended message. This essay questions her assumption that penalty enhancement for hate crimes is warranted only if the crimes are worse than otherwise similar crimes that do not count as hate crimes. Instead, it may be the case that it is the proper business of the state to take a particular interest in such crimes, in part because they enact not just any hatred but civic hatred. And if hate crimes are understood as enacting civic hatred, hate crime legislation can indeed serve to counter a message that very much needs to be countered.

Hate crime is a problem in many countries around the world. Scholars define hate crimes as unlawful conduct directed at different target groups, which can include violent acts, property damage, harassment, and trespassing (see Hate crime: An emergent research agenda. Annual Review of Sociology 27.1 [2001]: 479–504). Hate crime perpetrators target their victim’s race, religion, ethnicity, sexual orientation, gender, or disability, but also a variety of other characteristics. Several social movements (e.g., the civil rights movement, women’s movement, and LGBT movement) laid the foundation for anti-violence movements and placed the hate crime discourse on the political and legislative agenda. One way to better understand hate crime is to explore how governments in different parts of the world address the issue of crimes motivated by hate or prejudice. Targeted laws and policies transformed hate violence from ordinary to extraordinary crime (see Hate crime policy in western Europe: Responding to racist violence in Britain, Germany, and France. American Behavioral Scientist 51.2 [2007]: 149–165). Different countries implemented hate crime legislation in order to condemn crime committed due to prejudice or bias against an individual or group of people, introducing such legislation during different periods in time. The United States emerged as the leader of hate crime policy approaches, implementing legal responses to prejudice and bias in the early 20th century. The United States was also the first country to circulate the term “hate crime” during the 1980s (see Hate crime: An emergent research agenda. Annual Review of Sociology 27.1 [2001]: 479–504). Europe and the Asia-Pacific region followed suit in implementing their own responses to hate crime. The diversity of hate crime legislation in different countries makes it difficult to combine the legislative contexts under a common framework. A controversial debate exists around the need for a separate set of hate crime legislation. Scholars dispute the seriousness of the hate crime offense, the possibilities of proving motivational aspects of the hate crime, criminalizing hate, and introducing more severe punishments. They also debate the utilization of the civil versus the criminal code, the inclusion of different protected categories under hate crime legislation, the symbolic character of hate crime, and the social and political impact of hate crime legislation. This bibliography reviews key resources on hate crime legislation, including its historical context, its globalization, and the socio-criminological debate around hate crime legislation.

Hate crimes are motivated by perpetrators' prejudice toward targets' group. To examine individuals' attitudes toward hate crime perpetrators and targets, participants responded to vignettes of court cases in which the victim's group membership was varied. Results showed that participants recommended more severe sentences for perpetrators when the targets of their crimes were not White males or White females and reported those crimes as more closely fitting the definition of "hate crime." These results show that participants consider penalty enhancements appropriate for hate crimes and that they do not consider crimes against women to be hate crimes, consistent with present hate crime legislation. These results have implications for the utility and support of hate crime legislation but may showcase the resistance to expanding the legislation to protect individuals of other groups, especially women.

Analysis of US hate crime legislation reveals a significant overall trend involving: (1) the inclusion of a notion of hate motivation on the part of the offender; (2) the provision for enhanced penalties; and (3) the identification of particular victimized groups who are listed in state and federal hate crime statutes. Whether or not a person is recognized as a hate crime victim in US statutes has been shown to be heavily influenced by the strength of social movements based on politicized identities. It is argued that this alignment problematizes the position of victims who are the targets of hate crimes yet who fail to organize on the basis of identity politics, lack political clout, have insufficient moral status, or who see hate crime legislation as an ineffective way of dealing with their particular concerns. This paper examines the barriers to achieving hate crime victim status for persons who are targeted because of their occupations or sexual orientation. The specific examples I will use are doctors and other workers in abortion clinics, sex workers and paedophiles. These widely disparate groups have been selected as examples to highlight some of the moral status, politicized identity and social movement and lobbying strength issues that are currently involved in being recognized as a victim of hate in the US. It is argued that Australia should not proceed down the track of introducing hate crime legislation. Hate crime legislation is the source of serious social disquiet and acrimony in the US. There are inequities built into the alignment between proving hate intent and the enhanced penalty approach that involve giving higher symbolic status to some bodies and not others. As the experience in the US shows, this has a dangerous potential to undermine social cohesion and community faith in equality before the law as well as creating a breeding ground of resentment.

Supporters of hate crime legislation suggest that the primary reason for the codification of hate crime laws is “to send a strong message of tolerance and equality, signaling to all members of society that hatred and prejudice on the basis of identity will be punished with extra severity.” However, hate crime laws may actually be accomplishing the opposite effect of tolerance and equality because they encourage U.S. citizens to view themselves, not as members of our society, but as members of a protected group. The enactment of hate crime legislation at the federal and state levels has led to unintended consequences and unfair practices. Today, the controversy regarding the effectiveness of hate crime laws is debated, and people question whether this type of legislation is beneficial to society. This article will candidly reevaluate hate crime legislation. Part II will provide the definition of the term “hate crime” and the theoretical justification for enhanced sentencing involving discrimination-based conduct. Focus will be placed on data that disproves the theory that hate crime laws reduce or deter future hate crimes. It will also explain the underlying reasons for the enactment of hate crime laws, such as the media’s role and political influences, and it will present several of the misconceptions associated with hate crime legislation. Part III will present the unintended consequences associated with the enactment of hate crime statutes, including constitutional violations. It will also explain why hate crimes are rarely prosecuted, and will focus on the inconsistency, redundancy, and arbitrary usage/application of hate crime legislation. Part III will also present an individual’s response to the negative, unintended effects of hate crime legislation. Part IV will determine that hate crime legislation is not cost-effective. Part V sets forth a recommendation on improving community efforts to educate or reeducate citizens on respecting diversity. Finally, the article analyzes hate crime laws from supporting and opposing viewpoints and concludes that there is no need to separate hate crimes from other types of crimes as a means to promote a more tolerant, equal, and stable society.

Teaching and Learning Guide for: Isn’t Every Crime a Hate Crime? The Case for Hate Crime Laws

This article explores some of the policy issues raised by current proposals to amend federal law to create a broad new federal hate crime. This proposal has passed the Senate twice in recent years, and appears to have substantial support in the House as well. This article lays to one side several serious issues dealt with by other scholars (the constitutional basis for federal jurisdiction and the wisdom of enacting separate penalties for bias-motivated crimes), in order to focus on another feature of the current proposal. Instead of creating a new federal offense that federal officials intend to prosecute aggressively, the proposal would create a new federal offense primarily as a means of sending a symbolic message and providing a legal basis for a partnership in which the federal government provides behind the scenes assistance to state and local efforts. Both the emphasis on symbolism and the effort to create a continuing federal-state partnership create issues that have been largely ignored in the debate over federal hate crimes legislation. This article explores the political science literature on symbolic politics and interest group theory, concluding that they provide one possible explanation for hate crime legislation that evokes intense emotions and provides symbolic reassurance to key interest groups, though it would have little impact on law enforcement. Emphasis on the expressive function of federal criminal law has the potential to alter public perceptions, though it is not clear how that process will play out. The techniques for controlling the enforcement of a new crime are better understood than those for controlling the social meaning of such a law. It may create and strengthen valuable norms and bring about desirable shifts in social capital, but it might also undermine the moral force of the criminal law. The isolation of the symbolism or expressive function also changes the dynamic of the federal legislative process, and the related public debates. The other side of the proposal is the attempt to create a permanent partnership in which federal, state, and local officials work together to investigate and prosecute hate crimes in a task force model. The task force brings to bear resources in an efficient manner, but it strains the constitutional image of separate sovereigns each enforcing their own laws and takes a step towards the integration of the current autonomous police and prosecutorial agencies in the fragmented criminal justice systems within each state. Finally, the deliberate strategy of bringing rare federal prosecutions selected from among thousands of cases allows prosecutors to forum shop and negate state laws that embody state policies, exposing a few defendants to different procedural and substantive laws, and different sentences, than all others who have committed the same conduct.

In this introduction to the special symposium on the philosophy of hate crime, we provide an overview of the main philosophical aspects of hate crime and hate crime legislation. We point out that there are two overarching philosophical issues that span over the literature: the Conceptual Question--concerning what hate crime is--and the Normative Question--concerning the status of hate crimes and the justification of hate crime legislation. We also provide brief summaries of the articles in the special section and point to their relations to the broader themes.

This article focuses on political crimes, specifically terrorism and hate crime. Both terrorism and hate crime are criminal activities that are often committed to further a political objective, as opposed to typical or regular crimes that are usually committed for personal reasons such as greed, revenge, or other personal motivations. Political motivations encompass ideological, social, and religious objectives. Several works (e.g., Bruce Hoffman’s Inside Terrorism; see Hoffman 2006, cited under Defining Terrorism and Hate Crime) examine the evolution of terrorism from ancient to modern times. While bias-motivated violence and hate crimes are just as old as terrorism, the United States did not formally adopt hate crime legislation, through the passage of a variety of substantive penalty enhancement and data collection laws, until the late 20th century. Making Hate a Crime (Jenness and Grattet 2004, cited under Defining Terrorism and Hate Crime) explores the history of hate crime legislation, highlighting how various civil rights and victims’ rights movements played a role in the passage of hate crime legislation. In the classic text Hate Crimes Revisited, Jack Levin and Jack McDevitt outline the history of hate crimes, explain why some persons are motivated to commit these crimes, and discuss efforts to combat them (Levin and McDevitt 2002, cited under Defining Terrorism and Hate Crime).

Held at the Merseyside Maritime Museum on 13 October 2015, this conference brought together recent research, policy, and practice to discuss the latest developments in challenging hate crime. Organized by the International Criminological Research Unit (ICRU) at the University of Liverpool, in with Merseyside Police and Moving On with Life and Learning (MOWLL), the importance of partnership echoed throughout the day. The transdisciplinary nature of the conference invited speakers from a range of fields to explore the impact of hate crime for the communities too often placed at the centre of victimology. The wide range of speakers included activists, academics, and practitioners representing disability, race, religion, sexual orientation, and gender identity. While recognizing the unique cases of hate crime for these different communities, the idea of collaboration was central to developing future debates that could continue to challenge all aspects of hate crime.Introducing the day's keynotes, Professor David Ormerod employed a political interpretation of hate crime. In relation to the project assigned to the Law of Commissions by the Ministry of Justice, he provided a brief outline of the Commissions response for the development of hate crime legislation. The primary concern underpinning this project was the need to extend the categories of aggravated and stirring up hatred so that they applied to all five protected characteristics. In a politically informed exploration of the conceptual tensions underpinning hate crime legislation, Professor Ormerod concluded by giving the final recommendation of the Commission not to extend the current offences. Although justified on the basis that such offences lacked relevance to the forms of hate crime most often experienced by both lesbian, gay, bisexual, transgender (LGBT), and disabled communities, this conclusion generated a varied response among the academics, activists, and professionals in the room. While I recognized the political complexity that legislative change entails, this conclusion left me pondering the political misinterpretation of a human rights agenda that continued a system of legislative discrepancy. Moreover, I could not help feeling pessimistic about the political developments aiming to challenge hate crime. If disabled and LGBT communities are not given equal status and protection in legislation, I wonder how they might gain this in a society that has historically nurtured a rejection of difference.Centred on a approach to the of hate crime, Professor Paul Iganski invited us to move away from the criminological focus of reporting crime toward a perspective on both the spatial and psycho-social consequences. The psycho-social approach extended my own interpretation of victimization, and led me to focus not only on the instant physical and emotional effects of hate crime but also on those of post-traumatic stress, identity, and visibility. Perhaps of greater impact, however, Professor Iganski reaffirmed the spatial impact of hate crime, such as the sense of locational imprisonment, whereby many communities feel restricted and have to avoid certain areas that threaten their identity. The unsettling severity of a global problem questions the cultural and social conditions in which hate crime is nested, probing the need for preventative measures on both individual and community levels. Professor Iganski's attempt to move toward a public health approach therefore encouraged a model of resistance and prevention predicated upon a communitive challenge to hate crime.These keynotes introduced the conference to hate crime in relation to race, religion, gender identity, and sexual orientation. However, my main reflections here are on the work of Professor Alan Roulstone regarding disablist hate crime.1Professor Roulstone introduced the conference to many of the issues faced when challenging disablist hate crime. …

Hate crimes (or bias crimes) are crimes motivated by an offenders’ personal bias against a particular social group. Modern hate crimes legislation developed out of civil rights protections based on race, religion, and national origin; however, the acts that constitute a hate crime have expanded over time, as have the groups protected by hate crimes legislation. Anti-LGBT hate crimes, in which victims are targeted based on their sexual orientation or gender identity. LGBT people are highly overrepresented as victims of hate crimes given the number of LGBT people in the population, and this is especially true of hate crimes against transgender women. Despite the frequency of these crimes, the legal framework for addressing them varies widely across the United States. Many states do not have specific legislation that addresses anti-LGBT hate crimes, while others have legislation that mandates data collection on those crimes but does not enhance civil or criminal penalties for them, and some offer enhanced civil and/or criminal penalties. Even in states that do have legislation to address these types of hate crimes, some states only address hate crimes based on sexual orientation but not those based on gender identity. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act gives the federal government the authority to prosecute those crimes regardless of jurisdiction; however, this power has been used in a limited capacity. Hate crimes are distinct from other crimes that are not motivated by bias. For example, thrill seeking, retaliation, or the desire to harm or punish members of a particular social group often motivates perpetrators of hate crimes; these motivations often result in hate crimes being more violent than other similar crimes. The difference in the motivation of offenders also has significant consequences for victims, both physically and mentally. Victims of hate crimes are more likely to require medical attention than victims of non-bias crimes. Likewise, victims of hate crimes, and especially anti-LGBT hate crimes, often experience negative psychological outcomes, such as PTSD, depression, or anxiety as a result of being victimized for being a member of an already marginalized social group.

This article will explore what hate crimes are, and explore why they have been on the rise in recent years. I will track the evolution of hate crime legislation on both a federal and state level and argue that while rises in hate are consistent throughout time, they are also episodic. I will justify the need for hate crime legislation and demonstrate how state hate crime laws vastly differ, using a case study as support. I will make policy suggestions to improve existing legislation and advocate for an increase in federal funding allocated to hate crime training for law enforcement agencies. Lastly, I will suggest that training should also be required in schools and workplaces in order to diminish ignorance and intolerance, and to encourage communities to embrace and celebrate diversity rather than fear it

In this article I argue that the objections against hate crimes defined as separate offenses and in terms of group animus are misguided and are based upon a mistaken view of human action that does not see motives as constituent parts of complex actions. If we are going to have hate crimes legislation, there are no good formal reasons keeping us from having distinct offenses for hate crimes or from having ones defined in terms of group animus. My goal is to clear up a number of action-theoretical confusions that have led some theorists and jurists to raise objections that draw attention away from the real crux of the debate over hate crime legislation. Initially, I defend several considerations that weigh against an understanding of hate crimes legislation as being concerned exclusively or even primarily with character, belief, or motive. These considerations in turn help undercut the related concern that hate crime legislation violates free speech protections.