April 23, 2017

Counting Hate Crimes: A Brief History of the Hate Crimes Statistics Act

Posted at 9:40 pm (Pacific Time)

Most people know what a hate crime is and many are aware that the FBI publishes annual statistics on such crimes. But fewer people know that those FBI reports are legally mandated by the Hate Crimes Statistics Act (HCSA), which was signed into law 27 years ago on April 23, 1990.

Here’s a brief summary of how the HCSA came to be the law of the land.

The Historical Context for Hate Crime Laws

Up until the 1970s, violence against gay and lesbian people wasn’t widely considered a problem in the United States. Heterosexual society generally regarded acts of violence as “natural” reactions to people who were homosexual or transgressed traditional gender norms. Victims were seen as deserving whatever harassment or violence they experienced — in effect, they were “asking for it” by being visible or by simply existing.

As the modern movement for sexual minority rights developed in the 1970s, however, and gay and lesbian communities organized and attained greater visibility throughout the United States, sexual minority advocates were increasingly successful in challenging this worldview. They called upon society to reject the idea that violence was a routine consequence of being gay and instead to view antigay attacks like other instances of murder, assault, robbery, and vandalism – that is, as crimes for which blame and punishment should be directed at the perpetrators, not the victims.

In response, elected officials, policymakers, and criminal justice professionals began to address sexual orientation-based violence as a social problem. As sociologists Valerie Jenness and Ryken Grattet explained in their 2001 book, Making Hate A Crime: From Social Movement to Law Enforcement, this development built upon American society’s prior recognition that violent acts against racial, ethnic, and religious groups were repugnant in a modern democracy and warranted state intervention.

Making Hate A Crime

Such crimes came to be called hate crimes or, alternatively, bias crimes. The FBI defines a hate crime as a “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.”

Hate crimes are not only physical attacks on the victim, they are also attacks on a core aspect of the victim’s personal identity and community membership. These components of the self are particularly important to many sexual and gender minority individuals, who experience considerable stress as a consequence of societal stigma. Being a victim of any violent crime typically has negative psychological consequences, but hate crimes are different in that they appear to inflict greater psychological trauma than other kinds of violent crime. Hate crimes also send a message of fear and intimidation to the entire sexual and gender minority community.

Historically, the modern hate crimes movement emerged relatively recently, led by the Anti-Defamation League and other organizations. Early laws, such as the statute enacted by California in 1978, restricted the definition of hate crimes to crimes motivated by the victim’s race, national origin, or religion. During the 1980s, however, many state hate crime laws were written or revised to include sexual orientation as well.

Today nearly all states have some form of hate crime law. Most of them work by enhancing penalties for hate crimes, that is, increasing the punishment for criminal acts determined to be based on the victim’s group membership. Currently, statutes in 15 states and the District of Columbia directly address crimes based on the victim’s actual or perceived sexual orientation or gender identity. In another 15 states, laws include sexual orientation but not gender identity. Of the remaining states, 15 have laws that do not list sexual orientation or gender identity as victim categories and 5 states have no hate crime law or have a law that addresses bias crimes but lists no categories and is considered too vague to enforce.

The Federal Response to Antigay Crimes

At the federal level, the first steps toward recognition of antigay hate crimes came in the 1980s. On October 9, 1986, the first-ever Congressional hearing on antigay victimization was convened by Rep. John Conyers (D-MI), chairman of the House Judiciary Committee’s Criminal Justice subcommittee. The lead witness was Kevin Berrill, director of the Anti-Violence Project of the National Gay Task Force (later the National Gay and Lesbian Task Force, or NGLTF).

Berrill is a largely unsung hero in this story. Throughout the 1980s and early 1990s, he played a central role in changing how American society viewed and responded to hate crimes against sexual and gender minorities. He worked to raise public awareness about such crimes, took the lead in documenting their occurrence, and successfully advocated for local and national responses to them in law enforcement and the criminal justice system. Berrill’s behind-the-scenes efforts — along with those of Bill Bailey, a lobbyist at the American Psychological Association (APA), and with the assistance of Reps. Barney Frank (D-MA) and Howard Berman (D-CA) — were key to bringing about the 1986 hearings.

Other subcommittee witnesses included Diana Christensen and David Wertheimer, the directors of anti-violence community groups in, respectively, San Francisco and New York, as well as representatives of criminal justice agencies, and several victims of antigay violence. I provided testimony on behalf of the American Psychological Association (APA).

The importance of documenting hate crimes based on sexual orientation was well understood by the witnesses and was noted repeatedly throughout the hearing. Afterward, therefore, it was a logical step for the participants and allied groups to direct their focus to a pending bill called the Hate Crimes Statistics Act (HCSA). Supported by the Hate Crimes Coalition (a wide range of groups promoting racial, ethnic, and religious minority rights and civil liberties), it would require the federal government to collect data on crimes based on the victim’s race, ethnicity, or religion.

I first heard about the HCSA from Tim Bellamy, an aide to Rep. Bill Green (R-NY). During a meeting with Bill Bailey and me, he suggested that expanding the Act’s purview to include sexual orientation might be a strategy for encouraging research on antigay violence.

Congressional hearings had been held for the HCSA the previous year, but it had not yet been passed. The NGLTF, APA, and other advocacy and professional groups began working to have sexual orientation included in the bill’s language. These efforts were ultimately successful.

With sexual orientation added to the bill, however, the HCSA drew strong opposition from conservative members of congress, notably Senator Jesse Helms (R-NC). Nevertheless, the Hate Crimes Coalition remained committed to keeping sexual orientation in it.

Unable to have sexual orientation removed from the Act, Senator Helms proposed an antigay amendment to it:

 “It is the sense of the Senate that –
(1) the homosexual movement threatens the strength and survival of the American family as the basic unit of society;
(2) State sodomy laws should be enforced because they are in the best interest of public health;
(3) the Federal Government should not provide discrimination protections on the basis of sexual orientation; and
(4) school curriculums should not condone homosexuality as an acceptable lifestyle in American society.”

In the mid-1980s, many senators were reluctant to vote against such an amendment, fearing the fallout when they next faced reelection. Indeed, when the Senate was debating an appropriations bill not long before the HCSA, Helms had successfully attached an amendment to it prohibiting federal funding for AIDS education and prevention programs that ‘‘promote, encourage or condone homosexual activities.” Only two senators — Daniel Patrick Moynihan (D-NY) and Lowell Weicker (R-CT) — voted against that amendment.

To save the HCSA, Senators Paul Simon (D-IL) and Orrin Hatch (R-UT) proposed an alternative amendment:

SEC. 2. (a) Congress finds that-
1. the American family life is the foundation of American Society,
2. Federal policy should encourage the well-being, financial security, and health of the American family,
3. schools should not de-emphasize the critical value of American family life.
(b) Nothing in this Act shall be construed, nor shall any funds appropriated to carry out the purpose of the Act be used, to promote or encourage homosexuality.

Importantly, the Simon-Hatch Amendment came to a vote before the Helms Amendment, giving senators political cover: Voting for the Simon-Hatch amendment allowed them to take a “pro-family” stance while subsequently opposing the Helms Amendment, which was defeated 77-19.

The HCSA ultimately was passed with strong bipartisan support (the Senate vote was 92-4) and signed into law by President George H. Bush on April 23, 1990.

Hate Crime Statistics

Subsequent to the HCSA’s passage, the FBI began compiling hate crime statistics. Its first report, released in 1992, listed 4,755 hate crime offenses in 4,558 separate incidents reported to local authorities during 1991. Of those, 422 (9%) were anti-homosexual or anti-bisexual crimes.

The 1991 statistics, however, are not considered complete. The first full report was issued in 1993 and reported data for 1992. From that year through 2015 (the most recent year for which data are available), more than 27,000 incidents based on sexual orientation were reported to the FBI. In any given year, sexual orientation incidents accounted for between 11% and 23% of all bias crimes recorded by the FBI.

Congress has since passed other legislation related to hate crimes, including the 2009 Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, or HCPA (PL No. 111-84). It expanded federal definitions and enforcement of hate crimes, bringing crimes based on sexual orientation and gender identity under the jurisdiction of the Department of Justice (DOJ), and authorized the DOJ to assist state and local jurisdictions with investigations and prosecutions of bias-motivated crimes of violence. It also expanded the FBI’s mandate to include collection of statistics about crimes based on based on gender and gender identity.

In 2013, the FBI began reporting hate crimes based on the victim’s gender identity separately from sexual orientation crimes. That year, 31 gender identity crimes were tallied. In the 2014 and 2015 reports, the number of gender identity crimes were, respectively, 98 and 114.

Limitations of FBI Hate Crime Statistics

Although the FBI statistics are among the most definitive sources on hate crimes, they are widely believed to significantly underestimate the true incidence of sexual orientation and gender identity crimes for at least three reasons.

First, participation by local law enforcement agencies is voluntary, and even many of the local agencies that participate routinely report no occurrence of hate crimes in their jurisdiction.

Second, to be counted, hate crimes must be detected and labeled as such by local law enforcement authorities. Many agencies haven’t created the necessary procedures for such detection or lack the resources to train personnel to use them. Consequently, many incidents reported to police that might be hate crimes are never classified as such.

Third, many hate crime victims never report their experience to police authorities. While nonreporting is a problem with all crime in the United States, sexual and gender minority victims may be even less likely to report a hate crime than a nonbias crime because they fear further victimization by law enforcement personnel or they do not want their minority status to become a matter of public record

The Significance of the HCSA

Despite these limitations, passage of the HCSA was an important milestone.

It was the first federal law ever to directly address problems faced by sexual minorities, or even to include a sexual orientation provision. Gay and lesbian activists were invited to attend the signing ceremony at the White House, another historic first. And by mandating the documentation of hate crimes based on sexual orientation (and, later, gender identity), it has helped to make such crimes visible to law enforcement agencies and the public, and to make their prosecution and prevention a priority for society.

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I expand upon some portions of this post in my article, “Documenting Hate Crimes in the United States: Some Considerations on Data Sources,” published in the June 2017 issue (vol. 4, #2) of Psychology of Sexual Orientation and Gender Diversity.

Here are some resources for more information about passage of the Hate Crime Statistics Act:

Herek, G. M., & Berrill, K. T. (1992). Introduction. In G. M. Herek & K. T. Berrill (Eds.), Hate crimes: Confronting violence against lesbians and gay men (pp. 1-10). Thousand Oaks, CA: Sage.

Vaid, U. (1995). Virtual equality: The mainstreaming of gay and lesbian liberation. New York: Anchor.

Harding, R. (1990, March 27). Capitol gains: A behind-the-scenes look at the passage of the Hate Crimes Bill, The Advocate, pp. 8-10.

Copyright © 2017 by Gregory M. Herek. All rights reserved.

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