Is Rape a Hate Crime?

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State and federal laws offer conflicting answers.Despite a major setback in 2000, advocates are continuing to work to establish or expand state and federal laws that recognize gender as a category for hate crimes.

Women received a strong measure of protection in the federal 1994 Violence Against Women Act, which recognized gender-motivated violence as a hate crime and provided a new federal civil rights remedy, enabling rape victims and battered women to sue their attackers for compensation and punitive damages.

But in 2000 the Supreme Court called that provision unconstitutional, throwing out a lawsuit brought by a former Virginia Tech student who alleged that a Tech football player raped her in a dormitory room.

Christy Brzonkala sued the player, Tony Morrison, after prosecutors filed no charges in the incident and school officials rescinded a suspension of Morrison that they had imposed, according to news reports. Brzonkala’s lawsuit became a test case of the provision.

The court ruled that the civil rights remedy in the Violence Against Women Act overstepped federal jurisdiction because it did not involve either interstate commerce or the conduct of state officials. "The Constitution requires a distinction between what is truly national and what is truly local," Chief Justice William H. Rehnquist said in the Los Angeles Times.

The Morrison decision caused activists to shift gears in their effort to give women the right to sue their attackers.

"The Supreme Court struck it down as being more appropriately the province of the states to allow that," says Diane Moyer, policy counsel for the Pennsylvania Coalition Against Rape. As a result, there are initiatives in a number of states – including Pennsylvania, Illinois and New York -- to give battered women and rape victims the right to sue, something not granted by criminal hate-crime laws.

Currently 24 of the 45 states and the District of Columbia that have hate-crime statutes that include gender as a protected category, says Michael Lieberman, Washington counsel for the Anti-Defamation League. It’s on the state level, where the vast majority of violent crimes are prosecuted, that hate-crime statutes are most valuable and widely used. (The ADL website contains a cornucopia of information about hate crimes and federal and state initiatives, including a state-by-state guide to hate-crime laws.)

Federal hate-crime cases are based on federal criminal civil rights statutes. These laws complement state hate-crime laws and provide "backdrop" protection in some cases where the state lacks hate-crime laws, where those laws are incomplete or where state officials are unable or unwilling to enforce them.

The most frequently used statutes recognize race, religion and national origin as categories, but not gender. Efforts to widen those statutes to include gender, along with sexual orientation and disability, continue with the proposed Local Law Enforcement Enhancement Act.

While clarifying and expanding federal authority in hate crimes prosecution and investigation, the Local Law Enforcement Enhancement Act also addresses questions the Morrison decision raised about federal authority in hate crimes cases. "So we are confident that it would be constitutional even after Morrison," Lieberman says. (For information on the status and implications of the bill, as well as statements of support from national organizations, visit United Against Hate.)

Gender is a protected class for hate crimes under one narrow federal statute, the 1994 Hate Crime Sentencing Enhancement Act, which allows for additional penalties in federal crimes when victims are selected because of race, religion, national origin, gender, sexual orientation or disability.

Though the law dates back to 1994, it has been invoked only once in a crime targeting victims because of gender and sexual orientation – this year in the capital murder indictment of Darrell Rice, accused of murdering lesbians Julianne Williams and Lollie Wynans in Shenandoah National Park. The murders rose to the level of a federal crime only because they took place at a national park.

"So it is obviously not a broadly used authority that the federal government has had," says Lieberman. The sentencing enhancement act has been used more frequently in hate crimes involving race, and religion and national origin.

Similarly, even though 24 states recognize gender as a category for hate crimes, advocates point out that few cases have been prosecuted as gender-based hate crimes.

The National Alliance to End Sexual Violence is studying the issue to determine exactly how many, says Gail Burns-Smith, chair. Though gender-based hate crime prosecutions have been few, the laws remain important for the protections they offer and the debate they stir.

"Helping people begin to think violence against women is a hate crime is absolutely critical," says Burns-Smith. "So it is an educational effort, number one, and number two, I really think it’s about justice."