Hate Crime Legislation: Renegotiating in Three, Two, One...!

This paper reflects the research and thoughts of a student at the time the paper was written for a course at Bryn Mawr College. Like other materials on Serendip, it is not intended to be "authoritative" but rather to help others further develop their own explorations. Web links were active as of the time the paper was posted but are not updated.

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Hate Crime Legislation: Renegotiating in Three, Two, One...!

Sarah Halter

All violent crimes are reprehensible. But the damage done by hate crimes cannot be measured solely in terms of physical injury or dollars and cents. Hate crimes rend the fabric of our society and fragment communities because they target a whole group and not just the individual victim. Hate crimes are committed to cause fear to a whole community.

-The Human Rights Campaign Website

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 "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 would 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 this sort of law (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 Barbara Perry 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 acted out of hate, so what difference does it make? However, I insist that there is a big difference: hate crimes are unique from other crimes because in these instances a perpetrator acts out of intolerance, fear, and lack of education. In a period of political polarization such as ours, hate crime legislation is needed now more than ever.

It has taken decades for us to reach the point we are now at in regards to hate crime legislation. James Jacob says, "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 government made its first conscious effort to collect accurate information about hate crimes nationwide by passing the Hate Crime Statistics Act. This act did not address how to decide if someone was guilty of a hate crime or how to punish someone who was. It was and is important because it records 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 Violence Against Women Act protected women against crimes motivated by gender, but it was declared unconstitutional in 1999. Also passed in '94 was the Hate Crimes Sentencing Enhancement 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)? It would be a grievous error, however, to categorize those who counter hate crime legislation as bigots or proponents of hate. 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 whether hate for the victim's nationality, religion, sexual orientation, etc. was 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 they are hardly the mark of hate crimes (Jacobs 156). What constitutes a hate crime does it have to be violence against a person, or does vandalism count? If an act 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? What makes the first a hate crime and the second not?

There are no easy answers to these questions. In an ideal world, hate crime legislation would protect those who feel afraid for their safety because they are members of a certain community, defined by gay, religious, or political identity. 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 their identies: 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 protection 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 important less for the punishment or the laws it creates than 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 government's gesture of good faith 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 from the government that it wishes 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 play 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, "Western cultures [such as ours] generally consider sex to be a dangerous, destructive, negative force" (Rubin 13). She goes on, "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). 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). It's this hierarchy that makes hate crime legislation so controversial and difficult to pass after all, it's hard to convince people that those who perform "base" sexual activities deserve federal protection.

Hate crime legislation would not be necessary if not for this sexual hierarchy's control over the American mindset. (That is not to say that the hierarchy doesn't exist in other western and non-western cultures; merely, for this paper, American history will be our focus). Where did this hierarchy come from? Henry Abelove has some speculations about the influence of the industrial age on sex in England, which can certainly be applied to American progress as well. Abelove looks at the rise of fertility in the long eighteenth century (the 1680s-1880s), the decrease in single women, and the drop in illegitimate births as evidence to suggest that more people were marrying and having more "cross-sex genital intercourse" (Abelove 126) in their marriages. He reasons that this came about as a result of the industrial revolution, which put a new focus on production. Sex that did not allow for the crossing of genitals (i.e. masturbation, foreplay, or homosexual sex) could not produce children. And during a time in which production was a chief value, these acts of sex were seen as nonproductive and defective. "Behaviors, customs, usages which are judged to be nonproductive ... come under extraordinary and ever-intensifying negative pressure" (Abelove 128-129). Because of the industrial revolution's influence on thought, production and the making of babies made heterosexual, married sex the "good sex."

It was during this period of change (the change of the world into an industrial world, the change of mindsets and values, etc) that "man" and "woman" were defined as categories that couldn't interact. By looking at the widely popular and available newspapers "The Tatler" and "The Spectator," any English student can see how concerned and anxious people were over categories, especially gendered categories. The writers of these papers (and others like them) argued that a third gender a sodomite gender existed. Suddenly, a world in which only the homosexual act existed became a world in which the homosexual himself existed. Sodomy was a known practice (just look to Greeks and Roman texts for ancient examples), but it wasn't until the long eighteenth century in English literature that the "molly" came into existence as a being who was defined by his act of having sex with other men.

These examples of change and Abelove's theory may have English root, but it's not difficult to translate these thoughts to American history. Like England during the long eighteenth century, America also went through an industrial revolution. Definitions were changing. America was emerging as a truly capitalist state, one that demanded production. And a country that wants production has little room for "the deviant."

John D'Emilio furthers the connection between capitalism and gay identity when he tries to renegotiate the existence of the queer. Although this paper earlier alluded to the birth of the homosexual, D'Emilio nails this birth down when he says, "I want to argue that gay men and lesbians have not always existed. Instead, they are a product of history, and have come into existence in a specific historical era. Their emergence is associated with the relations of capitalism" (D'Emilio 264). D'Emilio's argues that before capitalism, family units were self-sufficient in that they had both the land and the tools to survive on their own. He argues that homosexuals had "no social space in the colonial system of production" because "survival was structured around participation in the nuclear family" (D'Emilio 266). These families produced what was needed to survive, and so while a man or woman could engage in homosexual acts, they needed to act out heterosexual life styles in order to create a family and survive on their land and tools.

By the nineteenth century, however, many families had moved away from this method of living; they now worked in a "capitalist system of free labor" (D'Emilio 265). By making money and living off this money (not off tools and land), the homosexual was able to exist as an entity. S/he could live on his money and did not need a nuclear family in order to survive: "capitalism allowed individuals to survive beyond the confines of the family" (D'Emilio 267). Yet, while this change signified the birth of the homosexual as a person who could live on her/his own, the definition of the family also changed in an exclusive and negative way. D'Emilio says:

The family took on new significance as an affective unit, an institution that provided not goods but emotional satisfaction and happiness ... the ideology surrounding the family described it as the means through which men and women formed satisfying, mutually enhancing relationships and created an environment that nurtured children. The family became the setting for 'a personal life,' and sharply distinguished and disconnected from the public world of work and production" (D'Emilio 265).

This definition doesn't seem negative until one considers what the definition excludes. Since this "typical" family needs a male and female in order to produce children (and production is good, Abelove reminds us), the homosexual had no place in the family. "The ideology of capitalist society has enshrined the family as the source of love, affection, and emotional security, the place where our need for stable, intimate human relationships is satisfied" (D'Emilio 269). Rather than redefining the family as a more inclusive place, where even homosexuals could find a niche, the family has become a place where the male/female relationship governs all. There is no room for the deviant in this safe, personal space; in essence, we are looking at the birth of "family/traditional values." These are the very "values" that threaten the peace of the homosexual today. By defining the family as a nurturing, safe place where children are cared for, the family is also defined as Heterosexual and (more importantly) Not-Homosexual. This definition makes it so that married, heterosexual sex is sacred and good while homosexual sex is "other," outside, and bad. It's easy to see how this definition allows for the fear, intolerance and hatred of the queer. This intolerance and hatred creates the reason that hate crime legislation is needed so desperately.

This negotiation of "the family" illustrates how Rubin's sex hierarchy came into existence in past history, but there are also events in contemporary American history to explain the existence of the hierarchy. Michael Warner proposes the call for normality as another reason that some sex is valued higher than other sex. He says, "What immortality was to the Greeks, what virtu was to Machiavelli's prince, what faith was to the martyrs, what honor was to the slave owners, what glamour is to the drag queens, normalcy is to the contemporary American" (Warner 53). Americans want to be normal, Warner says we all want to be one of "the guys" or "the gals" - and this desire comes from our obsession with the statistics that guide us. After all, don't we all look to tests in magazines and numbers in commercials to tell us everything from the number of calories we should ingest to when a young person should have sex for the first time? If statistics show us that more people have heterosexual sex than homosexual sex, this could make homosexual sex deviant sex, and so it becomes something to fear and avoid.

Mary Poovey pushes this question further when she considers the problems of studying sex with statistics.^3 Poovey concludes,

"To represent sexuality as discrete, repeatable sex acts that can implicitly be referred to a sexuality identity, in other words, is to represent sex or certain sex as amendable to administration, in that it or they can be vilified if they do not conform to what the majority represents as "normal" whether or not this constitutes the statistical norm. Representing sex as discrete acts makes it easy to imagine policing certain acts while tolerating sex in general: by the same token, referring sex acts to a sexual identity makes it easy to imagine policing certain individuals, because they practice these sex acts, even in a society supposedly made up of a 'we' that encompasses 'all Americans'" (Poovey 388).

This argument explains why people may want to police individuals or sex acts: Poovey blames the faulty use of numbers in a similar way that Foucault blames well-meaning but erring words. Yet Foucault hasn't won yet. I purpose that Poovey's argument does not mean we need to look at how we talk about sex but how we think about sex. Perhaps if we change our thoughts about sex, hate crime legislation will become unnecessary. Unfortunately, this goal would necessitate a massive overhaul on our thought and then our language. We would not only need to renegotiate the definitions and categories we created in the long eighteenth century, but all definitions and categories that we ever created. We would have to reevaluate our entire history. This is not something that comes easily to the human race, and yet there is quite a bit of evidence for why we should take this dramatic step.

In October 2002, Gwen Araujo was tortured and murdered by friends who discovered that she was born biologically male.^4 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.^5 The Brandon Teena and Matthew Shepherd cases are well-known in the public eye now because of recent cinematic attempts to bring national attention to anti-gay hate crimes. 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 Shepherd, a Teena and the lists go on might be saved. And after that? Perhaps we can begin the renegotiating.

^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: Mary Poovey looks specifically at studies made by the National Opinion Research Center in 1992 that were discussed in two books, Sex in America: A Definitive Study and The Social Organization of Sexuality: Sexual Practices in the United States.

^4: 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>

^5: 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>.


Abelove, Henry. "Some Speculations on the History of Sexual Intercourse During the Long Eighteenth Century in England." Genders. 6 (1989): 125-130.

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

D'Emilio, John. "Capitalism and Gay Identity." The Material Queer: A LesBiGay Cultural Studies Reader. Ed. Donald Morton. Boulder: Westview Press, 1996. 263-271.

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.

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>

--------.< http://www.hrc.org/Template.cfm?Section=Home&CONTENTID=28881&TE MPLATE=/ContentManagement/ContentDisplay.cfm>

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.

Poovey, Mary. "Sex in America." Critical Inquiry. 24.2 (1998): 366-392.

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.

Warner, Michael. The Trouble with Normal. New York: The Free Press, 1999. 41-80.

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