Redrawing the Boundaries of Hate Crime: What Characteristics Should Be “Protected” in the Criminal Law?

Abstract

AbstractIf the enactment of hate crime legislation serves to address social injustice, what social groups are deserving of its special protection? This question continues to challenge policy makers and legislatures globally. In the US, where modern hate crime statutes were first enacted, different group characteristics have been included at both state- and federal-level legislation. The Hate Crime Statistics Act 1990 was the first piece of federal legislation that required the Attorney General to collect data on hate crimes motivated by race, ethnicity, religion, disability and sexual orientation bias. In 1994 Congress enacted the Hate Crimes Sentencing Enhancement Act, which required the US Sentencing Guidelines Commission to enhance penalties for crimes motivated by bias against a victim’s race, colour, national origin, ethnicity, religion, gender, ethnicity and sexual orientation. However, federal jurisdiction initially extended only to race, colour, national origin and religion, meaning that crimes motivated by bias towards a victim’s sexual orientation, gender or disability could only be pursued if the federal government obtained jurisdiction in some other way. This limitation of jurisdiction was changed by the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act 2009, which extended the reach of federal law to cover sexual orientation, gender or disability. State legislators have also taken diverging approaches to legislating for hate crime, using different models of legislation and including different protected characteristics. There are currently 47 States in the USA with hate crime statutes. All of these states include hate based on race, religion, and ethnicity, while 34 cover disability, 34 sexual orientation, 30 gender, 22 transgender/gender identity, 14 age; 6 political affiliation and 3 (and additionally Washington, D.C.) protect homelessness.