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US state hate crime laws as they pertain to sexual orientation and gender identity.
  Sexual orientation and gender identity recognized in state hate crimes law
  Sexual orientation recognized in state hate crimes law
  Sexual orientation recognized for data collection about hate crimes
  State hate crimes law noninclusive [1]

Hate crime laws in the United States protect against hate crimes (also known as bias crimes) motivated by enmity or animus against a protected class. Although state laws vary, current statutes permit federal prosecution of hate crimes committed on the basis of a person's protected characteristics of race, religion, ethnicity, nationality, gender, sexual orientation, gender identity, and disability. The U.S. Department of Justice (DOJ)/FBI, as well as campus security authorities, are required to collect and publish hate crime statistics.

According to Nancy Turner, "The main difference between hate crimes and other crimes is that a perpetrator of a hate crime is motivated by bias." She explains several bias indicators that should be considered when determining whether an incident should be considered a hate crime.

  • perceptions of the victim(s) and witnesses about the crime
  • the perpetrator's comments, gestures or written statements that reflect bias, including graffiti or other symbols
  • any differences between perpetrator and victim, whether actual or perceived by the perpetrator
  • similar incidents in the same location or neighborhood to determine whether a pattern exists
  • whether the victim was engaged in activities promoting his/her group or community—for example, by clothing or conduct
  • whether the incident coincided with a holiday or [date] of particular significance
  • involvement of organized hate groups or their members
  • absence of any other motive such as economic gain

Turner notes that "The presence of any of these factors does not confirm that the incident was a hate offense but may indicate the need for further investigation into motive."[2]

Federal prosecution of hate crimes

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Civil Rights Act of 1968

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The Civil Rights Act of 1968 enacted 18 U.S.C. § 245(b)(2), which permits federal prosecution of anyone who "willingly injures, intimidates or interferes with another person, or attempts to do so, by force because of the other person's race, color, religion or national origin" [1] because of the victim's attempt to engage in one of six types of federally protected activities, such as attending school, patronizing a public place/facility, applying for employment, acting as a juror in a state court or voting.

Persons violating this law face a fine or imprisonment of up to one year, or both. If bodily injury results or if such acts of intimidation involve the use of firearms, explosives or fire, individuals can receive prison terms of up to 10 years, while crimes involving kidnapping, sexual assault, or murder can be punishable by life in prison or the death penalty.[3] U.S. District Courts provide for criminal sanctions only. The Violence Against Women Act of 1994 contained a provision at 42 U.S.C. § 13981 which allowed victims of gender-motivated hate crimes to seek "compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate", but the U.S. Supreme Court ruled in United States v. Morrison that the provision is unconstitutional.

Violent Crime Control and Law Enforcement Act (1994)

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Main article: Violent Crime Control and Law Enforcement Act

The Violent Crime Control and Law Enforcement Act, enacted in 28 U.S.C. § 994 note Sec. 280003, requires the United States Sentencing Commission to increase the penalties for hate crimes committed on the basis of the actual or perceived race, color, religion, national origin, ethnicity, or gender of any person. In 1995, the Sentencing Commission implemented these guidelines, which only apply to federal crimes.[4]

Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act

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Main article: Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act

On October 28, 2009 President Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, attached to the National Defense Authorization Act for Fiscal Year 2010, which expanded existing United States federal hate crime law to apply to crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity, or disability, and dropped the prerequisite that the victim be engaging in a federally protected activity.

State laws

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45 states and the District of Columbia have statutes criminalizing various types of bias-motivated violence or intimidation (the exceptions are Arkansas, Georgia, whose hate crime statute was struck down by the Georgia Supreme Court in 2004,[5] Indiana, South Carolina, and Wyoming). Each of these statutes covers bias on the basis of race, religion, and ethnicity; 32 cover disability; 31 of them cover sexual orientation; 28 cover gender; 16 cover transgender/gender-identity; 13 cover age; 5 cover political affiliation.[6] and 3 along with Washington, D.C. cover homelessness.[7]

31 states and the District of Columbia have statutes creating a civil cause of action, in addition to the criminal penalty, for similar acts.[6]

27 states and the District of Columbia have statutes requiring the state to collect hate crime statistics; 16 of these cover sexual orientation.[6]

3 states and the District of Columbia cover homelessness.[7]

Data collection statutes

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Hate Crime Statistics Act of 1990

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The Hate Crime Statistics Act of 1990 28 U.S.C. § 534, [2] requires the Attorney General to collect data on crimes committed because of the victim's race, religion, disability, sexual orientation, or ethnicity. The bill was signed into law in 1990 by George H. W. Bush, and was the first federal statute to "recognize and name gay, lesbian and bisexual people."[8] Since 1992, the Department of Justice and the FBI have jointly published an annual report on hate crime statistics.[9]

Violent Crime Control and Law Enforcement Act of 1994

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In 1994, the Violent Crime Control and Law Enforcement Act expanded the scope to include crimes based on disability, and the FBI began collecting data on disability bias crimes on January 1, 1997.[10] In 1996, Congress permanently reauthorized the Act.

Campus Hate Crimes Right to Know Act of 1997

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The Campus Hate Crimes Right to Know Act of 1997 enacted 20 U.S.C. § 1092(f)(1)(F)(ii), which requires campus security authorities to collect and report data on hate crimes committed on the basis of race, gender, religion, sexual orientation, ethnicity, or disability. This bill was brought to the forefront by Senator Robert Terricelli.

Prevalence of hate crimes

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The DOJ and the FBI have gathered statistics on hate crimes reported to law enforcement since 1992 in accordance with the Hate Crime Statistics Act. The FBI's Criminal Justice Information Services Division has annually published these statistics as part of its Uniform Crime Reporting program. According to these reports, of the over 113,000 hate crimes since 1991, 55% were motivated by racial bias, 17% by religious bias, 14% sexual orientation bias, 14% ethnicity bias, and 1% disability bias.[11]

Victims per Year by Bias Motivation[9]
Department of Justice / FBI Hate Crimes Statistics
Bias Motive 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008
Race 6,438 6,994 6,084 5,514 5,485 5,397 5,545 4,580 4,754 5,119 4,895 5,020 4,956 4,934
Religion 1,617 1,535 1,586 1,720 1,686 1,699 2,118 1,659 1,489 1,586 1,405 1,750 1,628 1,732
Sexual Orientation 1,347 1,281 1,401 1,488 1,558 1,558 1,664 1,513 1,479 1,482 1,213 1,472 1,512 1,706
Ethnicity/National Origin 1,044 1,207 1,132 956 1,040 1,216 2,634 1,409 1,326 1,254 1,228 1,305 1,347 1,226
Disability unknown unknown 12 27 23 36 37 50 43 73 54 95 84 85
Single-Bias 10,446 11,017 10,215 9705 9,792 9,906 11,998 9,211 9,091 9,514 8,795 9,642 9,527 9,683
Multiple-Bias 23 22 40 17 10 18 22 11 9 14 9 10 8 8
Total 10,469 11,039 10,255 9,722 9,802 9,924 12,020 9,222 9,100 9,528 8,804 9,652 9,535 9,691

Notes: The term victim may refer to a person, business, institution, or society as a whole. Though the FBI has collected UCR data since 1992, reports from 1992-1994 are not available on the FBI website. Single-bias victim totals have been calculated for 1995-1998.

2008 Hate Crimes vs. 2008 Crimes per offense type[12][13]
Department of Justice / FBI crimes statistics
Offense type Hate Crimes All US Crimes
Murder and non-negligent manslaughter 7 16,272
Forcible rape 11 89,000
Robbery 145 441,855
Aggravated assault 1,025 834,885
Burglary 158 2,222,196
Larceny-theft 224 6,588,873
Motor vehicle theft 26 956,846

Deliberate attacks on the homeless as hate crimes

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Florida, Maine, Maryland, and Washington, D.C. have hate crime laws that include the homeless status of an individual.[7]

A 2007 study found that the number of violent crimes against the homeless is increasing.[14][15] The rate of such documented crimes in 2005 was 30% higher than of those in 1999.[16] 75% of all perpetrators are under the age of 25. Studies and surveys indicate that homeless people have a much higher criminal victimization rate than the non-homeless, but that most incidents never get reported to authorities.

In recent years, largely due to the efforts of the National Coalition for the Homeless (NCH) and academic researchers the problem of violence against the homeless has gained national attention. The NCH called deliberate attacks against the homeless hate crimes in their report Hate, Violence, and Death on Mainstreet USA (they retain the definition of the American Congress).

The Center for the Study of Hate & Extremism at California State University, San Bernardino in conjunction with the NCH found that 155 homeless people were killed by non-homeless people in "hate killings", while 76 people were killed in all the other traditional hate crime homicide categories such as race and religion, combined.[15] The CSHE contends that negative and degrading portrayals of the homeless contribute to a climate where violence takes place.

Hate crime laws debate

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Main article: Debate over hate crime laws

Penalty-enhancement hate crime laws are traditionally justified on the grounds that, in Chief Justice Rehnquist's words, "this conduct is thought to inflict greater individual and societal harm.... bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest."[17]

According to Nancy Turner, there are several elements that make hate crimes different from other criminal acts:

  • Hate crimes are often especially brutal or injurious
  • Victim(s) usually feel traumatized and terrified
  • Families of victims often feel frustrated and powerless
  • Others in the community who share the victim's characteristics may feel victimized and vulnerable
  • Hate incidents can escalate and prompt retaliatory action
  • Hate crimes and hate incidents create community wide unrest. [2]

Professor at California State University and former police officer, Brian Levin, described a hate crime as "a crime against community and a crime against a pluralistic society."[18]

However, some believe that penalty-enhancement and federal prosecution laws of hate crimes violate the Fifth Amendment that states "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." David Harris, executive director of the American Jewish Committee, claims an offender may be tried twice due to "the need for prosecution at the federal level if and when the local authorities fail to act or when state penalties are inadequate." [19]

Nat Hentoff, alleges that these laws are unfair to victims of crimes as well. He questions whether there is "equal protection of the laws" when a person serves less time in prison after committing a crime that was not officially motivated by bias. He asserts that regardless of the motivating factors, "victims of the same type of crime...deserve equal recompense."[19]

Racially motivated hate crimes

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Since 1995, data gathered by the Uniform Crime Reporting Program consistently shows that the majority of hate crime victims are targeted because of the offender's "bias against a race."[20] In 2011, UCR reported that 47.4 percent of hate crimes were racially motivated. Of these reported incidents, 71.9 percent were considered "anti-black" and 16.3 percent were considered "anti-white".[21]

According to Donald Altschiller, librarian at Boston University, "Racially motivated crimes targeting white people [are] less common than hate crimes targeting people of color...but they do occur and are prosecuted."[22] In fact, the case in which the Supreme Court upheld hate crimes legislation against First Amendment attack, Wisconsin v. Mitchell, 508 U.S. 476 (1993), involved a white victim. However, Altschiller explains that, "Many of the hate crimes motivated by bias against a victim's religion, nationality, gender, or sexual orientation are directed at white people."[22]

Classification of crimes committed against Caucasians

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Hate crime statistics published in 2002, gathered by the FBI under the auspices of the Hate Crime Statistics Act of 1990, documented over 7,000 hate crime incidents, in roughly one-fifth of which the victims were white people.[23] However, these statistics have caused dispute. The FBI's hate crimes statistics for 1993, which similarly reported 20% of all hate crimes to be committed against white people, prompted Jill Tregor, executive director of Intergroup Clearinghouse, to decry it as "an abuse of what the hate crime laws were intended to cover", stating that the white victims of these crimes were employing hate crime laws as a means to further penalize minorities.[24]

James B. Jacobs and Kimberly Potter note that white people, including those who may be sympathetic to the plight of those who are victims of hate crimes by white people, bristle at the notion that hate crimes against whites are somehow inferior to, and less worthy than, hate crimes against other groups. They observe that while, as stated by Altschiller, no hate crime law makes any such distinction, the proposition has been argued by "a number of writers in prominent publications", who have advocated the removal of hate crimes against whites from the category of hate crime, on the grounds that hate crime laws, in their view, are intended to be affirmative action for "protected groups". Jacobs and Potter firmly assert that such a move is "fraught with potential for social conflict and constitutional concerns."

Analysis of the 1999 FBI statistics by John Perazzo in 2001 found that white violence against black people was 28 times more likely (1 in 45 incidents) to be labelled as a hate crime than black violence against white people (1 in 1254 incidents).[25] In analysing hate crime hoaxes, Katheryn Russell-Brown propounds a hypothesis explaining the disparity in how hate crimes against whites are viewed with respect to hate crimes against blacks. She hypothesises that the prevailing view in the minds of the public, that hate-crimes-against-blacks hoaxers intend to take advantage of, is that the crime that whites are most likely to commit against blacks is a hate crime, and that it is hard for (in her words) "most of us" to envision a white person committing a crime against a black person for a different reason. The only white people who commit crimes against black people, goes the public belief, are racially prejudiced white extremists. Whereas in contrast, she continues, the situation with hate-crimes-against-whites hoaxers differs, because the popular perception is that black people in general are liable to "run amok, committing depraved, unprovoked acts of violence" against white people.[26]

P. J. Henry and Felicia Pratto assert that while certain hate crimes (that they do not specify) against white people are a valid category, that one can "speak sensibly of", and that while such crimes may be the result of racial prejudice, (and therefore if that is the case, they are squarely covered by hate crime legislation intent for prosecution), in a limited definition of the word, they assert do not constitute actual racism per se, because a hate crime against a member of a group that is superior in the alleged and dated power hierarchy by a member of one that is inferior, they believe may not be racist. The concept of racism as understood by a limited number of social scientists and some others, they allege, requires as a fundamental element a superior-to-inferior group-based power relationship, which a hate crime against white people they believe does not have. However, other social scientists who define racism in a broader sense realize "whites" have over the many centuries, and often do experience discrimination and segregation from their "non white" human cousins, because of their actually or perceived race. And since the components of discrimination and segregation exist within an academic definition of racism, "whites" have been, and many times are victims of racism. Current prison culture in America is a classic example of such discrimination and segregation, as whole groups, and different "races" are discriminated against and segregated based on such, with "whites" receiving more harsh treatment because of their perceived race and/or minority status in prison.

Not all social scientists agree or affirm the opinion/supposition that racism litmus tests should be based on a group-based power relationships that include thousands of individuals over hundreds of years, rather they affirm they should be taken on a more individual case by case basis. Many social scientists agree that this is the most comprehensive and sensible way to determine whether racism is truly a motivating factor when the victim is white and the perpetrator is black. "Whites" are legally protected by hate crimes laws both within the laws themselves, and within the constitution's requirement they receive equal protection of the laws. Therefore, it's a moot point to determine if racism is a factor in the case of "black" on "white" crime for prosecution, since racism alone is not the only factor needed for prosecution. What is relevant to determine prosecution for a hate crime is whether any race or some other "protected characteristic" not "protected groups" was a factor in why a person targeted that/those individual/s to be their victim. e.g. If a "black" person targets a "white" person to be their victim simply because of his/her race or perceived race, whatever their accompanying rationale, they would be subject to hate crime prosecution. However, it's not without merit to determine their rationale, because it's within their rationale that one may verify if a true hate crime has been committed. This is why hate crimes are difficult to prosecute, because they essentially involve prosecuting thoughts rather than physical crimes, which are easier to prove. Evidence does show that in the current culture and climate many black men and women feel superior to whites, and a crime committed by such an individual with said mindset against a white person could clearly have been be motivated by racism. Therefore, this individual approach has been preferred over a blanket broad brush approach of past perceived ancestral sufferings and feelings of inferiority and/or superiority of groups that encompass thousands of individuals over hundreds of years.[27]

See also

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References

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  1. ^ Anti-Defamation League, June 2006. Retrieved 2007-05-04;
  2. ^ a b http://ic.galegroup.com.librarynt.occc.edu/ic/ovic/ViewpointsDetailsPage/ViewpointsDetailsWindow?failOverType=&query=&prodId=OVIC&windowstate=normal&contentModules=&mode=view&displayGroupName=Viewpoints&limiter=&u=okccc_main&currPage=&disableHighlighting=false&displayGroups=&sortBy=&source=&search_within_results=&p=OVIC&action=e&catId=&activityType=&scanId=&documentId=GALE%7CEJ3010196214
  3. ^ "Civil Rights Statutes".
  4. ^ "Hate Crime Sentencing Act". Anti-Defamation League. Retrieved 10 December 2009.
  5. ^ "Nation In Brief". The Washington Post. 2004-10-26. Retrieved 2010-05-04.
  6. ^ a b c State Hate Crime Laws, Anti-Defamation League, June 2006. Retrieved 2007-05-04;
  7. ^ a b c "Florida among first states to make attacks on homeless hate crimes". Retrieved May 25, 2010. May 18, 2010, Orlando Sentinel, Quote: "Florida becomes only the fourth jurisdiction to make attacks on homeless people a hate crime – behind Maryland, Maine and Washington, D.C."
  8. ^ Hate Crimes Protections Timeline, National Gay and Lesbian Task Force. Retrieved on 05-04-2007.
  9. ^ a b "Uniform Crime Reports". CJIS. Retrieved 10 December 2009.
  10. ^ "Hate crime statistics 1996" (PDF). CJIS. Retrieved 10 December 2009. [dead link]
  11. ^ Abrams, J. House Passes Extended Hate Crimes Bill, Guardian Unlimited, 05-03-2007. Retrieved on 05-03-2007.
  12. ^ "Table 2 - Hate Crime Statistics 2008". CJIS. Retrieved 17 December 2009. [dead link]
  13. ^ "Table 1 - Crime in the United States 2008". CJIS. Retrieved 17 December 2009. [dead link]
  14. ^ Lewan, Todd, "Unprovoked Beatings of Homeless Soaring", Associated Press, April 8, 2007.
  15. ^ a b National Coalition for the Homeless, Hate, "Violence, and Death on Main Street USA: A report on Hate Crimes and Violence Against People Experiencing Homelessness, 2006", February 2007.
  16. ^ National Coalition for the Homeless: A Dream Denied.
  17. ^ Wisconsin v. Mitchell, 508 U.S. 476 (1993).
  18. ^ http://ic.galegroup.com.librarynt.occc.edu/ic/ovic/ViewpointsDetailsPage/ViewpointsDetailsWindow?failOverType=&query=&prodId=OVIC&windowstate=normal&contentModules=&mode=view&displayGroupName=Viewpoints&limiter=&u=okccc_main&currPage=&disableHighlighting=false&displayGroups=&sortBy=&source=&search_within_results=&p=OVIC&action=e&catId=&activityType=&scanId=&documentId=GALE%7CEJ3010224238
  19. ^ a b http://ic.galegroup.com.librarynt.occc.edu/ic/ovic/ViewpointsDetailsPage/ViewpointsDetailsWindow?failOverType=&query=&prodId=OVIC&windowstate=normal&contentModules=&mode=view&displayGroupName=Viewpoints&limiter=&u=okccc_main&currPage=&disableHighlighting=false&displayGroups=&sortBy=&source=&search_within_results=&p=OVIC&action=e&catId=&activityType=&scanId=&documentId=GALE%7CEJ3010224239
  20. ^ http://www.fbi.gov/about-us/cjis/ucr/hate-crime
  21. ^ http://www.fbi.gov/about-us/cjis/ucr/hate-crime/2011/narratives/victims
  22. ^ a b ^ Donald Altschiller (2005). Hate crimes: a reference handbook. Contemporary world issues (2nd ed.). ABC-CLIO. p. 146. ISBN 1-85109-624-8. More than one of |isbn13= and |isbn= specified (help)
  23. ^ Joel Samaha (2005). Criminal justice (7th ed.). Cengage Learning. p. 44. ISBN 0-534-64557-7. {{cite book}}: Unknown parameter |isbn13= ignored (help)
  24. ^ Jacobs, James B.; Potter, Kimberly (2000). Hate crimes: criminal law & identity politics. Studies in Crime and Public Policy. Oxford University Press, USA. p. 134. ISBN 0198032226. When the FBI's 1993 hate crime statistics reported that whites comprised 20 percent of all hate crime victims, some advocacy groups questioned whether the hate crime laws were being perverted.12 Jill Tregor, executive director of the San Francisco-based Intergroup Clearinghouse, which provides legal and emotional counseling to hate crime victims, stated, "This is an abuse of what the hate crime laws were intended to cover."13 Tregor accused white hate crime victims of using the laws to enhance penalties against minorities, who already experience prejudice within the criminal justice system.14 Whites, generally sympathetic to the aspirations of minorities, may bristle at the suggestion that crimes motivated by blacks' racism against whites should be treated as a less virulent strain of hate crime, or not as hate crime at all. While no enacted hate crime law makes that distinction, a number of writers in prominent publications, likening hate crime laws to affirmative action for "protected groups," advocate the exclusion of racist crimes against whites from their coverage.15 This issue alone seems fraught with potential for social conflict and constitutional concerns. {{cite book}}: Unknown parameter |isbn13= ignored (help)CS1 maint: date and year (link)
  25. ^ Anthony Walsh (2004). Race and crime: a biosocial analysis. Nova Publishers. pp. 44–45. ISBN 1-59033-970-3. {{cite book}}: Unknown parameter |isbn13= ignored (help)
  26. ^ Katheryn Russell-Brown (1998). The color of crime: racial hoaxes, white fear, black protectionism, police harassment, and other macroaggressions. Critical America. NYU Press. p. 80. ISBN 0-8147-7471-7. {{cite book}}: Unknown parameter |isbn13= ignored (help)
  27. ^ P. J. Henry and Felicia Pratto (2010). "Power and Racism". In Ana Guinote and Theresa K. Vescio (ed.). The Social Psychology of Power. Guilford Press. p. 344. ISBN 1-60623-619-9. {{cite book}}: Unknown parameter |isbn13= ignored (help)
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Category:Hate crime Category:United States criminal law by topic

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