So why do many LGBT people, and others, feel so deeply about the need to have them?
The mainstream LGBT movement—including national groups such as the National Gay and Lesbian Task Force and Lambda Legal Defense, as well as many local state advocacy groups—often disagrees within itself on political priorities, policy implementation and even basic strategies regarding social justice issues. But the one thing that almost all of them agree on is that hate crime laws are good for LGBT people, that they work to deter crime and that LGBT people are safer because of them. These groups are not out of line with liberal American thinking. The National Association for the Advancement of Colored People and the Jewish Anti-Defamation League (ADL) both support hate crime legislation. To make matters appear even simpler, the groups who are most vehemently against hate crime legislation are highly conservative, often overtly homophobic groups, such as Focus on the Family and Concerned Women of America, who fear that such legislation would impede conservative religious people from voicing their beliefs and upholding what they see as “traditional values.” But even with widespread liberal support, the basic question remains: Do these laws work? Do they deter violence against LGBT people? Do they in fact make LGBT people safer? And, most important, are they fair and just?
The term “hate crime laws” is commonplace, but people often do not understand the intent or ramifications of such laws. It is important to understand why they were written in order to understand what they do and don’t do. While hate crime laws proliferated in the early 1980s, their legal roots are deeper. Throughout US history, violent, discriminatory acts against certain groups of people were not taken seriously. One solution was to enact new laws to make sure the laws already on the books were enforced. In the 1930s, when the lynching of African-Americans was pervasive throughout the country—3,446 black Americans were lynched between 1882 and 1968, one every ten days—activists lobbied Congress to pass anti-lynching laws. These would allow the federal government to legally intercede when states would not. A federal law was never passed. Only in 1968 did the Civil Rights Act make it a federal crime to “by force or by threat of force, injure, intimidate, or interfere with anyone … by reason of their race, color, religion, or national origin.” Soon states began passing their own legislation, based, to a large degree, on a model drafted by the ADL, to which “gender” and “sexual orientation” were later added.
Although all of these laws are worded differently, they usually contain three similar provisions. First, animus against the victim must be explicitly articulated. That is, the perpetrator must actively indicate that the crime is being committed because of a “hate” for the victim’s race, religion, ethnicity or sexual orientation. Second, state or federal authorities will officially keep track of the number of incidents by recording them as hate crimes. Third, hate crimes carry with them “penalty enhancement,” usually meaning stiffer sentencing, because they are understood as injuring not only an individual but a community. In the New York State penal code, for instance, if you are convicted of assault in the second degree, a D felony, you could be sentenced to up to seven years in prison. If your second-degree assault is recorded as a hate crime, the prosecutor can bump the charge up to a third-degree assault, a C felony, which carries a sentence of up to fifteen years.