Senate Hate Crimes Hearing at 10am

This morning the Senate Judiciary Committee will hold a hearing on the hate crimes bill, known as the Matthew Shepard Act.  Testifying in support of the bill will be Attorney General Eric Holder, the first time a sitting Attorney General has testified in favor of the bill.  Read Holder’s testimony [pdf]. A link to the live webcast is available on the Committee’s website.

HRC President Joe Solmonese delivered written testimony[pdf] at the hearing (full text following the jump). 

Written Statement of Joe Solmonese, President of the Human Rights Campaign
To the Committee on Judiciary, U.S. Senate, Room 226, Dirksen Senate Office Building

June 25, 2009

Mr. Chairman and Members of the Committee:

My name is Joe Solmonese, and I am the President of the Human Rights Campaign, America’s largest civil rights organization working to achieve lesbian, gay, bisexual and transgender (LGBT) equality. By inspiring and engaging all Americans, HRC strives to end discrimination against LGBT citizens and realize a nation that achieves fundamental fairness and equality for all. On behalf of our over 750,000 members and supporters nationwide, I am honored to submit this statement in support of S. 909, the Matthew Shepard Hate Crimes Prevention Act (“Matthew Shepard Act”).

The Matthew Shepard Hate Crimes Prevention Act

As Americans, we must take a strong stand against violence committed against our neighbors for simply being themselves. The purpose of our government, first and foremost, is to protect all of our citizens — whether they are black, disabled, Christian or gay. While a random act of violence against any individual is always a tragic event, violent crimes based on prejudice have a much stronger impact because they have the power to terrorize an entire community.

Last week’s violent attack at the U.S. Holocaust Memorial Museum was a sad reminder of the high cost of hate violence to our nation. Too often the media reports the stories of people who become victims of violence simply because of who they are. Our citizens cannot continue to live in fear of these crimes. Bias-motivated violence chips away at the very foundations of our society and spreads fear and distrust in our communities.

Enacting the Matthew Shepard Act will be a clear demonstration of the federal government’s resolve to deal with violence based on prejudice. Passage of this Act will not only provide local law enforcement with the tools they need to combat hate violence, but just as importantly, it will put would-be perpetrators on notice that our society does not tolerate bias-motivated, violent crime.

It is clear that the public is looking to this Congress for leadership and action to combat this devastating type of violence. According to a poll conducted by Peter Hart Research Associates, nearly three in four (73 percent) of voters favor strengthening hate crimes laws to include sexual orientation and gender identity and to give local law enforcement the tools they need to investigate and prosecute these violent acts based on bigotry.

This Congress has the best opportunity we’ve ever had to finally protect all Americans from hate crimes – including crimes based on sexual orientation, gender, gender identity or disability – by passing the long overdue Matthew Shepard Act. In April, the House passed its version of this legislation, the Local Law Enforcement Hate Crimes Prevention Act with a strong bi-partisan vote of 249-175. After nine successful votes on this legislation in multiple Congresses, the time to pass this legislation is now.

Why the Act Is Needed

Too often LGBT people are targeted for bias-motivated violence because of who they are. Every day a hate crime is committed against someone because of their sexual orientation. Often, local law enforcement authorities lack the resources or training needed to fully investigate and prosecute these bias-motivated crimes. Additionally, local authorities frequently lack training and understanding of transgender people, leading to a habitual mistrust of authorities by transgender individuals. This lack of understanding illustrates the need for a federal backstop for state and local authorities, particularly in cases where the local law enforcement authorities exhibit intolerance or fail to investigate or prosecute cases of transgender hate crimes.

There is a reason why this bill has been supported by 26 state Attorneys General as well as leading law enforcement organizations – because, despite progress toward equality in almost all segments of our society – hate crimes continue to spread fear and violence among entire communities of Americans, and law enforcement lacks the tools and resources to prevent and prosecute them. In 2007, the FBI announced that there were more than 9,500 reported hate violence victims in the United States -almost 27 victims a day, more than one every hour. One out of every six hate crimes is motivated by the victim’s sexual orientation.

What the Act Would Do

The Matthew Shepard Act would strengthen the ability of law enforcement officials to investigate and prosecute hate crimes by untying the federal government’s hands to protect all Americans.

Under the current federal law, enacted nearly 40 years ago, the government has the authority to help investigate and prosecute bias-motivated attacks based on race, color, national origin and religion and because the victim was attempting to exercise a federally protected right. For example, authorities became involved in a Salt Lake City case where James Herrick set fire to a Pakistani restaurant on September 13, 2001. Herrick was sentenced to 51 months incarceration on January 7, 2002, after pleading guilty to violating 18 U.S.C. § 245.

In contrast, the federal government is NOT able to help in cases where women, gay, transgender or disabled Americans are victims of bias-motivated crimes for who they are. Americans like twenty year old Sean William Kennedy. Sean was attacked on the streets of Greenville, South Carolina one night while he was out with his friends. His attacker used anti-gay slurs and punched Sean in the face because he didn’t like “his kind.” The force of the blows caused Sean to fall on the hard pavement below. Bleeding from the head and unconscious, Sean was taken by ambulance to the hospital. He succumbed to his injuries soon after.

Unfortunately, like many other states, South Carolina has no hate crimes law. Unable or unwilling to pursue more severe charges, local authorities charged Sean’s attacker with involuntary manslaughter. For murdering Sean, his attacker will serve less than three years in prison.

Had the Matthew Shepard Act been law, federal authorities would have had the jurisdiction to prosecute this crime or could have provided local authorities resources that might have assisted them in pursuing a longer sentence. Without the Act, there will be no justice for a young man whose life was cut tragically short – or for the family that has been left behind to grieve him.

The Act would also provide crucial federal resources to state and local agencies and equip local law enforcement officers with the tools they need to investigate and prosecute crimes. While most states recognize the problem of hate violence, and many have enacted laws to help combat this serious issue, federal government recognition of the problem is crucial to its solution. Too many local jurisdictions lack the full resources necessary to prosecute hate crimes. For example, when Matthew Shepard was murdered in Laramie, WY, in 1998, the investigation and prosecution of the case cost the community of 28,000 residents about $150,000, forcing the sheriff’s department to layoff five law enforcement employees in order to save money.

The Act also allows federal authorities to become involved if local authorities are unwilling or unable to act. In February of 2006, in Memphis, Tennessee, 21 year old Tiffany Berry, a transgender woman, died after being shot three times in the chest when she stepped out of her apartment. Memphis police claimed her transgender status was irrelevant to the crime and described it as a robbery-homicide despite the fact that her purse was not taken. Police have identified the man accused of murdering her. However, he is currently free on bond and no court date has been set. Had this federal hate crime law been in effect, federal authorities could have investigated and prosecuted her alleged murderer when it became clear that the local authorities were unwilling or unable to do so.

The Act is Consistent with First Amendment Freedoms

Opponents of the bill state that this law would “punish thoughts.” Those claims are not only unfounded, but fly in the face of our experience with hate crimes laws. The Supreme Court has clearly ruled that considering bias as a motivation for the crime does not run afoul of the First Amendment. Two Supreme Court cases from the early 1990’s, R.A.V. v. City of St. Paul and Wisconsin v. Mitchell, clearly demonstrate that a criminal statute may consider bias motivation when that motivation is directly connected to a defendant’s criminal conduct. By requiring this connection to criminal activity, the Court has drawn a sharp distinction between punishing thought and punishing bias-motivated violence. In Wisconsin v. Mitchell, the Supreme Court made clear that “the First Amendment . . . does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent.”

The Local Law Enforcement Hate Crimes Prevention Act punishes only violent actions – not thoughts or beliefs –based on prejudice. The legislation clearly states the defendant must have willfully caused bodily injury or, through the use of fire, a firearm, dangerous weapon or an explosive or incendiary device, attempted to cause bodily injury. In fact, the Act actually protects religious liberty by addressing violence against individuals based on their religion. Such attacks are among the most prevalent hate crimes, and many religious groups support this hate crime legislation precisely because it could stem violent acts motivated by religious bigotry.

Explicit Inclusion of Gender Identity is Necessary

Transgender individuals are disproportionately affected by violent, bias-motivated crime. These crimes are among the most violent and brutal, often resulting in the death of the victim. As the examples below graphically illustrate, hate crimes against transgender people are a national problem that must be addressed.

• In July of 2008, in Greeley, Colorado, Angie Zapata, a 20 year old transgender woman, was fatally beaten after her date discovered she was transgender. Her attacker beat Zapata with a fire extinguisher and admitted to police that he hit Zapata twice in the head thinking he had “killed it.”
• In November of 2008, in Memphis, Tennessee, Duanna Johnson, a transgender woman, was found shot to death in North Memphis. No one has been charged with the crime. In February of 2008, she had been arrested on charges of prostitution. She was sitting in a chair in a holding area at the Shelby County Jail when an officer walked up and punched her several times. A surveillance camera shows the officer punching Johnson several times, apparently holding handcuffs in the hand that was hitting her.
• In January of 2007, in Nashville, Tennessee, Nakia Ladelle Baker, a 31 year old transgender woman, was found murdered behind a nightclub in the Radnor neighborhood of Nashville. She had been beaten to death.
• In 2002, in Newark, California, 17-year-old Gwen Araujo was beaten, bound, and strangled by a group of four men who learned that she was biologically male. The Latina American’s body was later dumped into a shallow grave.

Developments in state and local law have made clear that in order best to fulfill the legislative intent of including the transgender community, the Matthew Shepard Act should contain explicit language. When a court is presented with the question, “may a defendant be convicted under a hate crimes statute for committing a violent crime against a person because of their transgender status,” we need to ensure that the answer will be “yes.”

Explicit language about gender identity has become the “state of the art” for hate crimes laws. In recognition of the significant problem that exists, many state and local laws now contain clear and explicit coverage for the transgender community. Today, twelve states and the District of Columbia have explicit transgender-inclusive language in their hate crimes statutes, like “gender identity.” In addition, many local hate crimes ordinances use similar language to ensure that transgender persons are protected.

We also support the bill’s amendment to the Hate Crimes Statistics Act that would add “gender” and “gender identity” to the categories of bias-motivated violence statistics collected by the FBI. Far too little is known about bias-motivated violence based on gender identity. What we do know indicates that transgender individuals are disproportionately affected by violent, bias-motivated crime. Collecting statistics on these types of crimes will provide the law enforcement community with vital information in the effort to combat this type of violence.

Support for this Legislation is Strong

According to Hart Research, large majorities of every major subgroup of the electorate — including traditionally conservative groups such as Republican men (56 percent) and evangelical Christians (63 percent) — express support for strengthening hate crimes laws to include sexual orientation and gender identity. Support also crosses racial lines — with three in four whites (74 percent), African-Americans (74 percent) and Latino/as (72 percent) supporting the Act.

In addition to public opinion polling that consistently finds the overwhelming majority of Americans in support of such legislation, federal hate crimes legislation has the support of more than 300 law enforcement, civil rights, civic and religious organizations. In fact, earlier this year, hundreds of religious leaders from all faiths converged for the second time on Capitol Hill to fight for the passage of this bill. The 2009 Clergy Call for Justice and Equality brought together religious and faith leaders from a wide variety of faith traditions to meet with federal legislators and express religious support for this Act.

Hate crimes are different from other crimes. Hate crimes send the poisonous message that some Americans deserve to be victimized solely because of their race, ethnic background, religion, gender, sexual orientation, gender identity or disability. They are unique in that they terrorize an entire community. Whether it is the burning of a church or a shooting at a gay bar, hate crimes send the message that a particular group of people are not welcome because of who they are. Such a message is antithetical to the American way of life.

Mr. Chairman, there can be no doubt that the time to pass this legislation is long overdue. As heartbreaking stories like Sean’s, Angie’s, and countless others show, hate crimes will not simply go away if ignored. We must address the consequences of hate violence and give local law enforcement the tools they need to investigate and prosecute these violent acts based on bigotry. Thank you.