Understanding Hate Crime Law in the Wake of Orlando - Law Blog

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Understanding Hate Crime Law in the Wake of Orlando

The recent attack on the Pulse nightclub in Orlando was the deadliest shooting in U.S. history. It was also motivated by hatred against the Lesbian, Gay, Bisexual, and Transgender (LGBT) community–a community that is already under siege.  Within a week of the tragedy in Orlando, a black transgender woman was bludgeoned to death, then burned in a car.

Violence against the LGBT community, motivated by prejudice and hatred, is terrifyingly widespread. In 2014, the FBI reported that 20.8% of all hate crimes committed are based on perceived sexual orientation.  This number was up more than 6% from 2005.  Per capita, more hate crimes are committed against the LGBT community than any other group.

Hate crime laws are designed to punish those with a motive of hatred. They often involve especially serious penalties for these especially despicable crimes.

U.S. Hate Crime Law Protecting the LGBT Community

Hate crime laws are not uniform in the U.S.; different states have different approaches.  However, hate crimes can generally be discussed as crimes motivated by bias or prejudice against a protected group.

When a crime is considered a hate crime, an enhanced penalty is applied to the perpetrator.  A few examples of crimes that can be enhanced when motivated by prejudice against the victim include: assault, murder, rape, sexual assault, vandalism, defamation, denial of certain rights, and others.

In 31 states, a hate crime also gives rise to a civil cause of action above and beyond the enhanced criminal charges brought against the perpetrator.  This civil lawsuit is brought by the victim of the hate crime or their surviving family. Flag

Exactly what constitutes a protected group varies from state to state.  However, common protected groups include race, age, sex, gender, disability, gender identity, and sexual preference or orientation.

Protection based on sexual orientation has been expanding following the premeditated torture and murder of a young homosexual man–Matthew Shepard–in 1998. The accounts of a young man so badly beaten that his entire face was covered in blood, except where his tears washed it away, helped shock the nation into taking action.

The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act was passed into law in 2009. The name alongside Shepard, James Byrd Jr., is the name of an African-American man dragged behind a truck and ultimately beheaded by white supremacists in 1998.  The measure expanded federal hate crime law to include more types of crimes and included sexual orientation, perceived gender, gender identity, and disability as protected classes.  It has not yet been applied in a case involving a hate crime against the LGBT community.  However, it has been used in several cases achieving a conviction, including a case where a New Mexico man branded a swastika onto a disabled Navajo man.

Despite these advances, sexual orientation and gender identity are not protected nationwide. The federal law discussed above only applies where federal criminal jurisdiction exists–a very limited set of cases.  Only 31 of the 50 states, along with the District of Columbia, treat sexual orientation as a protected group.  Gender identity receives even less protection, with only 17 states treating it as a protected group.  There are currently 5 states that have no hate crime laws whatsoever–Arkansas, Indiana, Wyoming (the state where Matthew Shepard was murdered), Georgia (whose statute was struck down by the Georgia Supreme Court in 2004) and South Carolina.

Terrifying Times and a Community Standing Strong

The crimes against the LGBT community are unconscionable. The unfortunate truth is that we live in a time where such crimes border on commonplace–in 2014 there were an average of 3.5 hate crimes committed against the LGBT community reported every single day.  This number does not include hate crimes motivated by multiple factors and represents numbers in a notably underreported area of crime.

The bravery of the LGBT community in standing up and being true to themselves in the face of these attacks is awe inspiring. Hate crime laws provide important protection for a targeted group, knowledge of these laws can hopefully help in some small way by allowing those who have been victimized turn a system which has mistreated them at every turn towards helping keep those who would harm them off the streets.

The hope is that the increased penalties will discourage people from committing crimes based on their prejudice. Expanding hate crime law in the states that either have no hate crime laws whatsoever or don’t include sexual orientation and gender identity as a protected group is an important first step.

However, hate crime laws are not enough. The problem is not one that can be totally addressed by any law.  While the importance of legal protection through hate crime legislation and equal rights cannot be overstated, it is the society that creates the laws that places the LGBT community in the most danger.  We have made progress over the last century, but the societal stigma around those who love others of the same sex or do not identify with their biological gender is the true problem.

To call solving this issue complicated is beyond an understatement. However, there are simple steps that anybody can take to help prevent violence against the LGBT community.  Speak out when you see prejudice.  This can mean reporting hate crimes you witness or hear of, hate crimes are currently highly underreported.  It can mean also be as simple as calling out prejudice within your own neighborhood, political leaders, or media personalities.

Support the LGBT members of your community. This can involve as little as providing a sympathetic ear or as much as working alongside groups committed to stopping violence against the LGBT community such as the Matthew Shepard Project.

What happened at Pulse night club was a tragedy. Preventing tragedies such as this in the future will require changes in law and social perception.


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