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.
These acts may be extremely violent, such as some involving torture or captivity.
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.
State Hate Crimes Laws
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. While almost all states have hate crimes laws, some laws do not cover hate crimes based on sexual orientation and gender identity.
Federal Hate Crime Laws
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.
The Shepard-Byrd Act allows the federal government to give grants and assistance to state and local authorities to help them investigate and prosecute hate crimes.
Investigating and Prosecuting Hate Crimes
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.