LGBTQ rights have advanced significantly in recent years, resulting in more individuals feeling comfortable living openly. However, despite the community’s heightened visibility, LGBTQ individuals continue to be targets of systemic harassment and violence. In 2015, the reported number of transgender people murdered in the United States reached a historic high of 15. Most of these victims were transgender people of color.
Crimes motivated by a perpetrator’s bias or animus against the victim for belonging to a particular group are legally classified as hate crimes. Hate crimes are often intended to frighten entire communities, making certain groups of people afraid to live or be seen in particular areas. Often these acts are incredibly violent, involving torture or captivity in many instances.
State hate crimes statutes generally function by providing for penalty enhancement, meaning that they increase the penalty for a particular offense (such as assault) if a crime is motivated by the victim belonging to a particular group. The rationale is that the acts don’t affect only one person, but also serve to intimidate other members of the group the victim is perceived to be part of. Additionally, a victim of a hate crime is likely to take longer to recover than a victim of a crime motivated by other factors. There are four states in the United States that have no hate crime laws. Nineteen states fail to protect against hate crimes based on sexual orientation. Only eleven states protect against hate crimes based on gender identity.
Since 1969, the Federal Hate Crimes Law has given the U.S. Department of Justice the power to investigate and prosecute perpetrators of crimes who selected their victims based on the victims’ color, race, religion, or national origin. In order for the federal government to prosecute under this law, the victim had to be engaged in a federally protected activity. For example, the federal government could prosecute if the victim was attacked while voting or going to school.
In 2009, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act amended the federal hate crimes law to include crimes motivated by bias against a victim’s sexual orientation, gender, gender identity or disability. The amendment also removed the requirement that the victim had to be engaged in a federally protected activity. Further, it required the FBI to track statistics on hate crimes against transgender individuals.
Significantly, this law allows the federal government to give grants and assistance to state and local authorities to help them investigate and prosecute hate crimes. The relevant state, local or tribal law entity can request that the U.S. Attorney General provide prosecutorial, technical, forensic or other assistance in criminally prosecuting any crime of violence, a crime that constitutes a felony under State, local or tribal laws, and is motivated by prejudice based on various personal characteristics including gender identity and sexual orientation.
Proving bias and prosecuting hate crimes can be more expensive than investigating and prosecuting crimes not motivated by animus against a group. The law is intended to make sure that local law enforcement has the necessary resources to address hate crimes.
However, if state and local law enforcement are unwilling or unable to investigate and prosecute a hate crime, the federal government doesn’t usually have jurisdiction or authority to prosecute perpetrators itself. The law expressly provides that state and local authorities continue to be responsible for prosecuting most violent crimes motivated by bias.
The federal government can only prosecute an offense where an Attorney General or other designated entity certifies in writing that the State doesn’t have jurisdiction, the State asks the Federal Government to assume jurisdiction, the verdict or sentence based on State charges left the federal interest in stopping hate crimes unvindicated, or prosecution by the federal government is in the public interest and necessary to attain substantial justice. This limitation can be problematic in areas where law enforcement and prosecutors are themselves biased against the LGBTQ community.
