SALT LAKE CITY — Who are hate crime laws designed to protect?
In theory, everyone.
But debate over the meaning and purpose of the laws has reignited with the recent passage of hate crime laws in several states, including Utah and Indiana.
While hate crime laws protect members of all groups, they aren't often seen in that light, said Jack Levin, a professor emeritus at Northeastern University and co-director of the Brudnick Center on Violence and Conflict.
Hate crime laws vary widely across the United States in terms of the groups and characteristics they designate as “protected,” raising questions about whether the laws are designed with those who have historically been discriminated against in mind, or merely serve as a reflection of the political values of the state in which they are instituted.
Indiana's hate crime bill, which was signed into law by Republican Gov. Eric Holcomb on April 3, has come under scrutiny for not including age, sex, gender or gender identity as protected characteristics.
Prior attempts to pass a hate crime law in Indiana that would have included a more comprehensive list of protected characteristics "failed amid fierce opposition from conservatives who said it would unfairly create specially protected classes of victims and wrongly restrict free speech," The Associated Press reported.
State Sen. Daniel Thatcher, R-West Valley City, faced a related problem in trying to get a hate crime bill enacted in Utah over the course of multiple years.
Thatcher said the original hate crime bill he proposed included the same characteristics protected by federal law, which 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."
But the hate crime measure that Republican Gov. Gary Herbert signed into law on April 2 included a slew of other protected characteristics, such as age, familial status, homelessness, marital status, matriculation, political expression, service in the U.S. Armed Forces, status as an emergency responder and status as a law enforcement officer.
What these categories mean is that if a perpetrator commits a criminal act against someone that is motivated by, say, the victim's specific age, or whether they are homeless, they will face increased legal penalties for that action.
"At the end of the day, every single category that's included in our bill that's not currently included" in the FBI definition "is there because that's what it took to get the votes to pass the bill," Thatcher said.
For Thatcher, including the additional categories was a "pretty small price to pay to get meaningful legislation passed."
"The importance of protecting the traditional categories that are included in federal law and tracked by the FBI far outweighs the awkwardness of adding non-standard categories," he added.
Experts say that over time, there has been a push, often politically motivated, to widen the scope of groups and characteristics protected by hate crime legislation, often due to a misunderstanding of both the purpose of hate crime laws and their material effects.
"We have to be careful, because we could expand this to the point where it's a meaningless law," Levin said.
The politics of protection
The first iteration of federal hate crime law, which was signed by Lyndon Johnson in 1968, aimed to "protect people who were targeted because of their race, religion and related characteristics," Levin said.
Over time, the list of characteristics protected by federal hate crime legislation expanded from race, color, religion and national origin to include actual or perceived sexual orientation, gender, gender identity and disability.
Although there is a federal hate crime statute, the federal government "doesn't have the resources to enforce its law against all hate crimes nationwide," which is why state hate crime statutes are necessary, according to Vox.
However, state hate crime laws vary widely, and five states — Wyoming, Arkansas, Indiana, Georgia, and South Carolina — do not have hate crime laws at all, according to the Anti-Defamation League. (Seth Brysk, a regional director for the Anti-Defamation League, said that Indiana's hate crime law does not meet the organization's standard for an effective statute.)
Of the 45 states that do have hate crime laws, each state protects race, religion and ethnicity; 32 cover disability; 31 sexual orientation; 31 gender; and 17 gender identity, according to data from the Anti-Defamation League. A few states protect other characteristics, such as age or political affiliation.
Why has the list of protected categories in hate crime legislation changed over time, and why do different states define those categories differently?
Part of the answer has to do with shifting conceptions of who is at risk, Levin said.
"Gender, for example, was not considered a hate crime category until recently, but it certainly seems to fit when you consider the frequency with which women have been attacked and harassed over the years," he said. "Thanks to the #MeToo movement, these episodes have come out into the open ... and they are certainly seen for the first time as possible categories of hate crimes."
"As political situations change, people become more concerned with the conditions" of different groups, Levin added.
In some states, one of these groups is police officers. In 2016, Louisiana became the first state to include law enforcement officers in its hate crime law, according to The New York Times. The law was a product of the "Blue Lives Matter" movement, itself a response to the "Black Lives Matter" movement, which critiques law enforcement's treatment of the African American community. Members of "Blue Lives Matter" have argued that the protests led by "Black Lives Matter" have endangered police and sparked targeted attacks against them, although data shows that attacks on police have been decreasing.
In the first few months of 2017, an additional 32 "Blue Lives Matter" bills were introduced across the country with the aim of including law enforcement officers as a protected category in hate crime legislation, the Huffington Post reported.
The "irony" of including law enforcement officials in hate crime statutes is that there are already "enhanced penalties for assaulting a police officer" in many states, said James Nolan, a professor of sociology at West Virginia University and a former unit chief in the Federal Bureau of Investigation's Crime Analysis, Research and Development Unit.
Nolan said part of the reason why certain groups are pushing to be included in hate crime legislation has to do with a fundamental aspect of human nature: The prioritization of the self, and the distinction we make between ourselves and others.
People say, "'Look at my life, it matters too. I'm being discriminated against. What about me?'" Nolan said.
"We don't see that the 'other' is us, and that by protecting the people who are being harmed the most, we're really protecting ourselves," Nolan said.
The purpose of hate crime laws
What most people don’t understand about hate crime legislation is that it protects everyone, not just minority groups, Levin said.
“People think hate crime legislation only protects blacks, or Jews, or Muslims,” Levin said. “Not true. It also protects whites and Christians. It protects everybody.”
After all, “We all have a race,” Nolan said. “We all have a religious affiliation, even if we’re areligious.”
Indeed, the Federal Bureau of Investigation’s Uniform Crime Reporting program collects data on hate crimes motivated by biases ranging from anti-Arab to anti-white, anti-Catholic to anti-atheism, anti-gay to anti-heteorosexual, and anti-female to anti-male.
But there tends to be a fear among certain groups, especially conservatives, that hate crime legislation is skewed in one direction, Thatcher said.
The idea that some victims are more equal than others — that it’s worse to hit someone of one color than someone of another color — is inherently wrong to most conservatives. – State Sen. Daniel Thatcher, R-West Valley City
“The idea that some victims are more equal than others — that it’s worse to hit someone of one color than someone of another color — is inherently wrong to most conservatives,” Thatcher said.
But, he added, this is a fundamental misunderstanding of hate crime law.
“It’s not about one victim being more valuable than another victim. It’s about one offender being more dangerous than another offender” by deciding to target someone for a crime based on the victim's inherent characteristics, Thatcher said.
Hate crime statutes serve both a material and symbolic purpose: They increase the legal penalties for perpetrators who target victims based on a specific characteristic, but they also "send a message back to the perpetrator ... that we do not tolerate intolerance," Levin said.
Although hate crimes are notoriously difficult to prosecute, the laws do have a material effect. In fiscal year 2018, the U.S. Department of Justice charged 27 defendants in 22 cases and obtained 30 convictions for federal hate crime offenses. (However, this represents just a small fraction of the total hate crimes reported to the FBI, a number that is itself regarded as a vast underestimate.)
But some protected categories appear to be included in hate crime statutes almost solely for symbolic or political reasons.
In the case of Utah’s hate crime statute, “The fact of the matter is that most of these (categories) will never be considered” in prosecuting hate crimes, Thatcher said. “I’m not aware of a single hate crime based on age. I’m not aware of a single hate crime based on matriculation or marital status.”
In addition, other laws already permit enhanced penalties for criminal acts committed against members of certain groups, which has raised questions as to why those groups should also be protected by hate crime legislation.
For example, as Nolan pointed out, many states already enforce enhanced penalties for crimes committed against police officers.
And although Utah already has enhanced penalties for crimes committed against children, age is still a protected characteristic in its hate crime statute.
"Since it's easier to prove the assault of a child rather than proving a child was assaulted because of his age, no one's ever really going to use the hate crime portion" to prosecute assaults committed against children "unless there's a glut of evidence that the attack" was motivated by the victim's age, Thatcher said.
Catch-22
Part of the political turmoil that surrounds hate crime legislation has to do with its optics. By only enumerating certain aspects of people's identities — their race, their sexuality, their age, their gender — it appears that the other, infinite, aspects of people's identities aren't protected, and thus aren't important.
Some states have tried to avoid this problem by not identifying any protected groups in their hate crime legislation, arguing that by not naming any groups, everyone is protected. But this tactic hasn't proved effective. In 2000, Georgia passed a hate crimes law that didn't specify any protected groups, and it was struck down by the Georgia Supreme Court for being "unconstitutionally vague." And before Utah passed its hate crime statute in April, it had a hate crime law that also didn't identify protected groups, which The Associated Press referred to as "essentially unenforceable."
But the alternative — identifying every possible group as a protected category — is neither practical nor effective, and would ultimately miss the point of what hate crime legislation was created to do, Levin said.
"Hate crime laws shouldn't be passed for temporary fluctuations in behavior towards groups," Levin said. "The long-term trend has to be considered."
"And we know African Americans have been killed disproportionately over the long term," he added. "But that's not true of police officers."