Hate crimes legislation: imperfect but necessary

Zach Davis

President Obama signed the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act into law Oct. 28, 2009. This updated a 1969 federal hate crimes act that made it illegal to “injure, intimidate or interfere with” a person engaging in federally protected activities – applying for a job, jury duty, attending school, patronizing a public place – based on their race, color, religion or national origin.
The Matthew Shepard Act adds to the list gender, sexual orientation, gender identity and disability. It also removes the requirement that the victim be engaging in a federally protected activity, and gives federal prosecutors greater leeway to pursue hate crimes investigations local prosecutors ignored.
There has always been stiff opposition to hate crimes legislation, and a lot of it makes sense. Conservatives believe hate crimes legislation is unnecessary and unconstitutional given Americans’ right to equal protection under the law – if murder is illegal, period, we don’t need another law against murdering gay people.
There’s also the issue of motive. To prosecute a hate crime, lawyers must prove the accused was acting out of hatred for a certain minority, but without being in the accused’s head, no one will ever know exactly why he made the choices he made. This is worrisome, because it means lawyers, judges and juries will have to make assumptions based on other evidence.
The man who posts on KKK message boards might seem a likely suspect in the beating of a black man, but saying racist things doesn’t make you a criminal. The idea that defendants may be convicted based solely on their Constitutionally-protected speech is a scary one.
But at the same time, I think of friends of mine who are afraid to walk alone at night. I ask myself: If I was transgender or disabled or Muslim or gay, would I feel safe walking down College Avenue on a Friday night as the bars let out? I can’t say that I would. And Appleton is nowhere near the scariest and most intolerant place in America.
The main argument in favor of hate crimes legislation is that hate crimes are acts of domestic terrorism, meant to harm not just the specific victim, but all members of a specific group. I think in reality lots of hate crimes are no more than a combination of anger, alcohol and long-simmering, never-examined prejudice.
The result is the same, though: Suffering and fear for victims, victims’ friends and family, and all potential victims. According to the U.S. Department of Justice, over 113,000 hate crimes have happened in the past 20 years. That is just anathema to the America that I live in.
Hate crimes need to be addressed. The question becomes: Should we do it with legislation? Obviously, it’s not an ideal solution. I think it’s workable, though. The Matthew Shepard and James Byrd Jr. Act is worded specifically to criminalize violent actions, while protecting speech. This goes a way toward assuaging fears that hate crimes legislation persecutes “thought crimes.”
Of course, any law that criminalizes something as subjective and hard to pin down as a motive is opening a huge can of worms, and I’m terrified the new act will lead to the false conviction of innocent people. I’m reassured, though, by America’s system of appeals courts and the Supreme Court.
If this act resulted in lots of false convictions, the appeals courts would have the chance to set things right. I trust that, though it won’t happen immediately, the court system will mold the Matthew Shepard and James Byrd Jr. Act into the effective piece of legislation it needs to be.
I think the most important – and, indeed, necessary – effect of hate crimes legislation is the unequivocal message it sends: “These people are people, too. They are human beings. It is not okay to hurt them.” There will always be hate crimes, because there will always be people so marinated in bigotry they can see no solution except violence. No legislation can affect these people – they’ll commit their crimes and take their lumps, regardless of what statue they’re sentenced under.
But not all hate crimes are chilly and premeditated. Hopefully, the next time a group of drunken rowdies is looking for fun at a gay person’s expense, they’ll remember that Matthew Shepard and James Byrd Jr. Act. I’d like to imagine they’d have a quiet moment of reflection, realizing their target was a human being and just as worthy of respect and compassion. I’d settle for them realizing what they were about to do is illegal and walking away.