Sex and Gender

2005 Third Web Papers

On Serendip

If it's true that sex is on the American public's mind, then it's likely that laws about sex are as well. One such hot topic issue is the question of whether to expand hate crime legislation to include gays and lesbians. Current federal law (Title 18 U.S.C. §245) only mentions crimes motivated by race, religion, or national origin, and expanding this legislation would be a unique gesture as it would attempt to protect people based on who they have sex with. In her essay, "Thinking Sex," Gayle Rubin says, "Sex is always political. But there are also historical periods in which sexuality is more sharply contested and more overtly politicized. In such periods, the domain of erotic life is, in effect, renegotiated." I argue that we live in such a period. In September this year, the House of Representatives passed the Local Law Enforcement Hate Crimes Prevention Act (the LLEHCPA), an act that wishes to expand our current hate crime legislation to protect gays, lesbians, and transgendered people. According to the Human Rights Campaign website, this was the third such attempt by the House in the last decade to pass such a law (and the Senate vetoed the other attempts). Critics are now saying, as they did in the past, that it is all but impossible to decide what constitutes a hate crime. As the article "Thinking More Clearly About Hate-Motivated Crimes" says, "The problem with interpreting 'official' estimates is that the term hate motivated is not clearly defined" (Perry, 2003 50). Others insist that all crimes are hate crimes, so what difference does it make? The purpose of this paper is to lay out the arguments for and against hate crime legislation. Gayle Rubin's "Thinking Sex" will be used as a model as this paper presents sex laws along side the historical context of America's views on sex. This paper will try to show that in our current period of political polarization, hate crime legislation is needed now more than ever.

Before continuing down this path, it is necessary to lay out our existing hate crime legislation and why the LLEHCPA is both unique and important. Scholars, such as James Jacob, say that the move for expanded hate crime legislation began in the '80s because of the civil rights movement: "The long-term impetus for the 1980's hate crime legislation undoubtedly is the American Civil Rights movement that, since World War II, has pressed forward the interests and aspirations of one "minority group" after another" (Kelly 152). In 1990, the Hate Crime Statistics Act was passed, and this act marked the first time our government made a conscious effort to collect accurate information about hate crimes nationwide. This act does not say anything about how to decide if someone is guilty of a hate crime or how to punish someone who is. It is important because it attempts to record hate crimes – essentially, this act shows that the government is making a statement that it is interested in hate crime study.

In 1994, two new pieces of legislation were passed. The first, the Violence Against Women Act, protected women against crimes motivated by gender. This act was declared unconstitutional in 1999. Also passed in '94 was the Hate Crimes Sentencing Enhancement Act, an act which outlined how to prosecute persons who committed crimes motivated by the "the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation" of their victim (Jenness 44). However, this act is not as progressive as it sounds: it only covers crimes that are committed on federal property. As of today, individual states have statewide laws regarding hate crimes, but these vary a great deal. The most recent federal hate crime legislation, the LLEHCPA, was passed in the House on September 14, and it's unique because it provides a way for the law to punish those who commit hate crimes (and not just on federal land). Also, this is the first act to include protection for transgendered people.

Upon initial examination, hate crime legislation sounds like a great idea: what can be wrong about protecting people who might ordinarily be attacked simply for being born a certain way (i.e. because of their national, ethnic, sexual, etc. identity)? But, as it is with life, things aren't that simple. While it would be easy to categorize those who counter hate crime legislation as bigots or proponents of hate, this would be a grievous and dangerous error. Many of those who are against hate crime legislation take the stance they do because this legislation makes for a very slippery slope.

In hate crime legislation, subjectivity is the greatest problem, as it is impossible to know what goes on in the perpetrator's mind. Courts will have to ask, was hate for the victim's nationality, religion, sexual orientation, etc. the only motivation for the crime? How do we distinguish between actions that are hate crimes and actions that are protected under the First Amendment? Is it only a hate crime if the victim is a member of a minority group? What other factors play into hate crime laws? James Jacobs points out that sometimes the law may simply be dealing with juveniles who want to make trouble, and use racial slurs or graffiti as a medium for troublemaking. Their acts may be deplorable, but hardly the mark of hate crimes (Jacobs 156). Also, what constitutes a hate crime – does it have to be violence against a person, or does vandalism count? And if a crime is determined to be a clear-cut hate crime, why should a man be punished for killing a gay man more than if he had killed his friend in a fit of anger? After all, both of these crimes would result from hate. What makes one worse?

There is no easy answer to these questions. In an ideal world, hate crime legislation would protect those who feel afraid for their safety just because they exist as a member of a certain community: gay, religious, political, or whatever. But this is not an ideal world, and to a student studying sex and gender, one problem outshines all others when it comes to hate crime legislation: to make this proposed legislation a reality, it becomes necessary to use a ever-dreaded and always distrusted label.

In order for hate crime legislation to become a reality, it would be necessary to call people by words that can be said to define them: gay, black, lesbian, Muslim, Arab, etc. In regard to the recent LLEHCPA, it becomes necessary to define transgendered people. Using labels is never easy - we progressive Changers Of The World fear labels. We don't want to play on the same terms as those who use labels as instruments of oppression. Didn't Foucault say that when we put our desires into words, we allow for others to police our desires?

But here is how it stands: current federal hate crime legislation already protects people against crimes motivated by race, religion, and national origin. The LLEHCPA proposes to expand current legislation to protect gays, lesbians, and transgendered people, but many people think the Senate will veto this act, just as they vetoed past attempts to expand hate crime laws. This is unfair. Why should the government refuse to protect for sexuality, but embrace protecting for race, religion, and national origin? Should we therefore abolish all hate crime legislation in order to be entirely fair? I think not. I argue that hate crime legislation is not as important for the punishment or the laws it creates, but for the ideological statement it makes.

If the government were to embrace hate crime legislation that protects gays, lesbians, and transgendered people, this will not stop a lunatic from attacking a lesbian couple who is walking down the street. Hatred will not evaporate because a law is passed. But the gesture of good faith that the government would be making is what's important. Right now in 2005, our government is cozying up with right wing Evangelicals, some of whom blame liberal Boston for pedophiles(*1) or feminists for 9/11(*2). Hate crime legislation would be a signal by the government that it wished to move away from polarizing, hateful rhetoric and embrace all of its citizens, including gays, lesbians and transgendered individuals. Hate crime legislation would be a proclamation that the government will no longer ignore 10% - if that's the current statistic – of its population.

In a perfect world, we would have no need for hate crime legislation, just as we would have no need for labels. But I want to argue that it is not that hate crime legislation makes labels obligatory – it is the other way around. The existence of labels allows – no, makes it necessary – for us to have hate crime legislation. We do not live in a perfect world. But we are not playing into the hands of those who will use labels as instruments of oppression by expanding hate crime legislation. (We have to tell Foucault to be quiet for a minute). The voices of several thousand people crying out against labels will not change the world for one very important reason: history.

Gayle Rubin says that "Western cultures [such as ours] generally consider sex to be a dangerous, destructive, negative force" (Rubin 13). With this in mind, it's no wonder that laws that speak to people about who they have sex with are so controversial. "Sex is presumed guilty until proven innocent. Virtually all erotic behavior is considered bad unless a specific reason to exempt it has been established" (Rubin 14). Rubin backs this information up with information about Victorian and religious ideals of sex which have made sex the enemy, the force that must be contained through laws and religious canons. She shows a hierarchy in which monogamous heterosexual marriages are the top and "bar dykes" and "promiscuous gay men" are barely above the lowest ring, the "transsexuals, transvestites, fetishists, sadomasochists, sex workers ... and those who eroticism transgresses generational boundaries" (Rubin 14-15). With this sort of hierarchy, it's no wonder that an attempt to federally protect people who engage in "base" sexual activity has been met with such resistance.

In October 2002, Gwen Araujo was tortured and murdered by friends who discovered that she was born biologically male.(*3) In August 1995, Tyra Hunter was seriously injured in a car accident, but when an emergency medical services officer discovered that she was biologically male, he ceased trying to revive her.(*4) The Human Rights Campaign has page after page of statistics of hate crimes committed against LGBTQ people within just the last decade. Rubin says, "Most people find it difficult to grasp that whatever they like to do sexually will be thoroughly repulsive to someone else, and that whatever repels them sexually will be the most treasured delight to someone, somewhere" (Rubin 19). This is the climate we live in – a climate of intolerance and fear of the "Other" sexual act. And while this is the climate, hate crime legislation is a necessity. We need the government to step up to the plate and say that it will protect its own citizens, so that the next time a Araujo, a Hunter, a Sheperd, a Teena – and the lists go on – might be saved.

(*1)On George Stephanopoulos' "This Week," Senator Rick Santorum said it was no surprise that Boston, "a seat of academic, political and cultural liberalism in America," was suffering from the priest/pedophile scandal. Read more at [http://thinkprogress.org/santorum-this-week/].

(*2)On Pat Robertson's "700 Club," Rev. Jerry Falwell blamed "the pagans, and the abortionists, and the feminists, and the gays and the lesbians ... the ACLU" for 9/11. Robertson said he agreed. More can be read at [http://www.actupny.org/YELL/falwell.html].

(*3)The perpetrators in this crime, with whom Araujo had occasionally had sex, told the police that they had experienced gay panic when they found out Araujo was biologically born a male. More can be read at [http://www.365gay.com/newscon05/09/091605araujo.htm].

(*4)This officer also made anti-gay slurs (heard by the crowd) over Hunter's injured body. She died in the hospital that evening. More can be read at [http://www.glaa.org/archive/1998/margiehunter1211.shtml].

"Crimes of Hate, Conspiracy of Silence: Torture and Ill-Treatment Based on Sexual Identity." New York: Amnesty International Publications, 2001.

Jacobs, James B. "The Emergence and Implications of American Hate Crime Jurisprudence." Hate Crime: The Global Politics of Polarization. Eds. Robert J. Kelly and Jess Maghan. Carbondale: Southern Illinois University Press, 1998.

Levin, Jack and Gordana Rabrenovic. Why We Hate. Amherst: Prometheus Books, 2004.

Gerstenfeld, Phyllis B. Hate Crimes: Causes, Controls, and Controversies. Thousand Oaks: SAGE Publications, 2004.

Gerstenfeld, Phyllis B. and Diana R. Grant, eds. Crimes of Hate: Selected Readings. Thousand Oaks: SAGE Publications, 2004.

"Hate Crimes." Human Rights Campaign. 20 November 2005. [http://www.hrc.org/Template.cfm?Section=Hate_Crimes1]

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Jenness, Valerie, and Ryken Grattet. Making Hate a Crime: From Social Movement to Law Enforcement. New York: Russel Sage Foundation, 2001.

Perry, Barbara, ed. Hate and Bias Crimes: A Reader. New York: Routledge, 2003.

Perry, Barbara. In the Name of Hate: Understanding Hate Crimes. New York: Routledge, 2001.

Rubin, Gail. "Thinking Sex: Notes for a Radical Theory of the Politics of Sexuality." American Feminist Thought at Century's End: A Reader. Ed. Linda S. Kauffman. Cambridge: Blackwell, 1993. 3-64.


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