Explaining the Matthew Shepard Act

As of last week, the House and Senate have now passed the "Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act" as part of the Defense Authorization Bill, and that bill now sits on the President's Desk and will certainly soon be signed into law. Media coverage of the bill has centered on the manufactured controversy over one aspect of the bill, the portion of it which would provide increased penalties for felonies that in addition to being felonies already, were committed with the expressed intent of persecution because of race, sex, orientation, gender identity, etc. 

What is perhaps more interesting are the parts of the Act that you haven't heard of.  I'll skip some of the more definitional provisions, but address the more active provisions in numeric order.

4704 (a) allows the DOJ to provide non-monetary assistance to states, cities, tribes, etc., for the investigation and prosecution of violent felonies targeting based on sex, race, religion, orientation, gender identity, etc.  Non-monetary includes anything from legal footwork to forensics, etc.

4704 (b) allows the DOJ to provide grants to states, cities, tribes suffering extraordinary expenses in investigating similar crimes, e.g., if there's a large (pick your favorite white power group) that is under investigation by a state with respect to a pattern of murders against POC, the DOJ has the authority to give grants to help support that investigation.

4705 allows the DOJ to provide grants to programs to reduce hate crimes in any variety of ways, e.g., working with teen groups, training law enforcement officials about the realities of hate crimes.  It's my belief that this reflects a perceived need to "try a few things and see what works", and to direct resources over time where they are most needed, and most effective.

4706 says the DOJ can hire a few people for the increased workload of 4707

4707 is the "additional penalties for hate crimes".  There's a lot of detail here that I'm only half-sure I understand, it appears to me that violent felonies are always potentially subject to higher penalties if they are made on the basis of race, color and/or religion, but are only higher for violent felonies based on gender, orientation, gender identity or disability if those crimes have some sort of interstate flavor (ah, the mysteries of the Interstate Commerce Clause!)

4708 is one of the mentioned and more valuable parts of the Act in the long term.  It simply adds orientation and gender identity (as well as crimes committed by and against juveniles) to existing requirements about collecting crime statistics. There is an enormous lack of solid data on the breadth of violent felony hate crimes in the United States.  Much confusion arises from the fact that the FBI's annual "Hate Crimes Statistics" report does mention crimes based on orientation. However, that number represents only those crimes reported to police, then reported by police to the FBI, and there are enormous numbers of cases that never make it through each reporting step.  The Anti-Violence Project estimates the reporting rate of hate crime victims to the police as being no higher than 28% in the US, based on the frequency of reports they themselves receive. Moreover, states and cities are under no widespread mandate to report these crimes upward to the FBI when they occur.  To demonstrate the size of the gap in our understanding, FBI statistics show as I recall around a thousand violent hate incidents per year, at most 100,000 over any one persons lifetime.  And yet, with at least seven million LGBT Americans, when you survey what percentage of LGBT Americans have experienced a hate crime so far in their lives, we get numbers at least an order of magnitude higher even if we assume that victims are only ever attacked once in their lives.  The answer is almost certainly somewhere in the middle, but where?  Understanding is part of any work we do to reduce hate crimes in America, and 4708 is a basic, foundational step in better understanding.

4710 reinforces that nothing here changes the Rules of Evidence.  Something isn't a hate crime because someone is a woman, or gay, something is a hate crime because it's a violent felony that has been shown in a court of law to be have been committed because of the race, orientation, etc. of the victim to the satisfaction of a jury.  

4711 redundantly reinforces the First Amendment, as well as reiterating that nothing here provides penalties for someone who does not intend violence or intend to incite violence in their speech.  Pastors are safe, so long as they don't support assault and murder in an immediate sense, the putrid statement of the RCC advocating Islamic murder of homosexuals, as well as literally suggesting that if same-sex marriage passes in Guam that "the Islamic terrorists will win", is entirely, 100% protected speech, as it should be.   (But pass me the vomit bucket.)

There's some more stuff, but that's the meat.

It's a good bill.  It addresses a real problem, it doesn't take a single approach to trying to solve the problem, it includes reassurances for those fraudulently frightened by the Religious Right.  Constitutional limitations based on ICC (such as the ICC is honored in general) are honored, Constitutional protections on speech are not only honored but reinforced and reiterated.

When signed this Act will be historic for many reasons, but one stands out to me, this bill would represent the very first time federal law has ever provided any positive protection based on gender identity.  Let this not be the last time.

Good work, Congress.  Good work, Democratic Leadership.  Good work, Mr. President.  Let's see more.


Read the original article in The Daily Kos


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