On the afternoon of October 28, 2009, President Barack Obama signed the Matthew Shepard and James Byrd Hate Crimes Prevention Act of 2009 (18 U.S.C. Section 249) into law. The Act is named after two victims of bias-motivated crimes. The hate-crime that captured the world’s attention happened to Mathew Shepard, a student in Laramie, Wyoming who, in 1998, who was tortured and murdered because of his perceived sexual orientation. The less well-known namesake hate-crime happened that same year, in Jasper, Texas, James Byrd, Jr. who was tied to a truck and dragged from it and then decapitated by two known white supremacists because he was African-American.
According to FBI statistics, there were 7,621 reported hate crime incidents that were motivated by a single, discernable animus. This means that there was at least one hate crime incident every hour or every day in the U.S. in 2007. Of those reported incidents, over half were motivated by racial bias; 18% were motivated by religious bias and 16% were motivated by sexual-orientation bias. From 2003-2007 the number of reported hate crimes against Hispanics increased nearly 40%. And, the number of reported hate crimes against individuals because of their sexual orientation increased to the highest level in five years – amounting to 1,265 incidents.
In response to the insurgence of hate-crimes, The Matthew Shepard and James Byrd Hate Crimes Prevention Act expands the 1969 United States federal hate-crime law, which extends to crimes motivated by a victim’s actual or perceived race, color, religion, or national origin, to include actual or perceived gender, sexual orientation, gender identity, or disability. The statute further expands the hate crimes law by removing the prerequisite that the victim be engaging in a federally-protected activity, like voting or going to school; giving federal authorities greater ability to engage in hate crime investigations that local authorities choose not to pursue; providing $5 million per year in funding for fiscal years 2010-2012 to help state and local agencies pay for investigating and prosecuting hate crimes; and requiring the FBI to track statistics on hate crimes against transgender people, as the statistics for the other groups are already tracked.
The statute specifically provides funding and technical assistance to state, local and tribal jurisdictions to help them to more effectively investigate and prosecute hate crimes. It also creates a new federal criminal law which criminalizes willfully causing bodily injury (or attempting to do so with fire, firearm, or other dangerous weapon) when (1) the crime was committed because of the actual or perceived race, color, religion, national origin of any person or (2) the crime was committed because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person and the crime affected interstate or foreign commerce or occurred within federal special maritime and territorial jurisdiction.
The newly enacted law has three significant subsections. Subsection (a)(1) has a broader reach than existing hate crime statutes and does not require the government to prove an additional “jurisdictional” element to obtain a conviction. It criminalizes violent acts and attempts to commit violent acts undertaken with a dangerous weapon when those acts occur because of the actual or perceived race, color, religion, or national origin of any person.
Subsection (a)(2) of the statute protects a wider class of victims. This subsection criminalizes acts of violence, and attempts to commit violent acts undertaken with a dangerous weapon, when motivated by the actual or perceived gender, disability, sexual orientation, or gender identity of any person. It also applies to violent acts motivated by animus against those religions and national origins which were not considered to be “races” at the time the Thirteenth Amendment was passed. Because this portion of the statute was passed pursuant to Congress’s Commerce Clause authority, the government must prove that the crime was in or affected interstate or foreign commerce to obtain a conviction.
Subsection (a)(3) of the statute provides for prosecution of crimes committed because of any of the characteristics defined in subsections (a)(1) or (a)(2), whenever such crimes occur within the Special Maritime and Territorial Jurisdiction (SMTJ) of the United States.
It is very important to note, especially in light of the pervasive bullying and harassment of LGBT children and teenagers, that the statute criminalizes only violent acts resulting in bodily injury or attempts to inflict bodily injury, through the use of fire, firearms, explosive and incendiary devices, or other dangerous weapons. While, the statute does not criminalize threats of violence, threats to inflict physical injury may be prosecutable under other hate crimes statutes, such as 42 U.S.C. Section 3631 or 18 U.S.C. Section 245.
The Department of Justice stated that its prosecution of hate crime cases “have sent the strong message that criminal conduct that violates an individual’s civil rights or seeks to victimize entire communities has no place in a democratic society, wherever and whenever it occurs in the Unites States of America.” It has gone on to state that the Matthew Shepard and James Byrd Hate Crimes Prevention Act “is essential because, sadly, hate crimes and the intolerance that breeds them remain all too prevent in our nation.” Attorney General Holder repeatedly emphasized that the “Department [of Justice] and the Civil Rights Division are steadfastly committed to enforcing the Matthew Shepard and James Byrd Hate Crimes Prevention Act.”
Those who opposed the passage of the statute, such as the socially conservative lobbying group Focus on the Family, argue that it infringes on the First Amendment rights of free speech and free exercise. But the statute only applies to bias-motivated crimes of violence and does not impinge on freedom or speech or religious expression in any way. The law actually contains specific protections for freedom of speech and association, including religious speech and association ensuring that religious leaders can continue to express their beliefs or serve their congregations as they see fit.
If you have experienced any form of hate-based violence, time is of the essence. Start by calling 911 and explain as many details about the incident as possible. File a police report and remember to be as detailed as possible. If you are injured, ask for an ambulance and go to the nearest emergency room right away. Then, most importantly, find support. No one should have to deal with the emotional and mental strain of experience a hate-crime alone. Lean on a good friend, family member or someone at a local LGBT community center or agency. Talking through the incident can help facilitate the healing process. There are anonymous services available in your local area that can assist you with dealing with the police, finding counseling, and other services.
In short, while the Matthew Shepard and James Byrd Hate Crimes Prevention Act of 2009 does not have all the enforcement “teeth” that it could at the moment and its constitutionality is still being challenged by opposition to the Act, awareness of its existence and its power at the federal level is growing. Moreover, the Justice Department is working vigorously to educate communities about the new law and to prevent hate crimes from occurring in the first place.
**Angela D. Giampolo, Principal of Giampolo Law Group maintains offices in both Pennsylvania and New Jersey and specializes in LGBT Law, Business Law, Real Estate Law and Civil Rights. Her website is www.giampololaw.com and she maintains a blog www.phillygaylawyer.com. Please feel free to send Angela your legal questions at firstname.lastname@example.org.