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August 11, 2011

Hate Debate: Does S.C. need bias-motivated crime laws?

The late Senator Ted Kennedy (D-Mass) once said "Hate crimes violate everything our country stands for. They send the poisonous message that some Americans deserve to be victimized solely because of who they are.

"The axe soon forgets but the tree always remembers."

Old African Proverb

The late Senator Ted Kennedy (D-Mass) once said "Hate crimes violate everything our country stands for. They send the poisonous message that some Americans deserve to be victimized solely because of who they are. These are crimes committed against entire communities, against the nation as a whole and the very ideals on which our country was founded."

The U.S. Congress defines hate crime as "a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability, or sexual orientation of any person."

The terms "sexual orientation" and "gender identity" were added to that definition in 2009 with the passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act.

Forty-five states and the District of Columbia also have statutes criminalizing various types of hate crimes.

But here in South Carolina, there is no state issued legal protection for bias-motivated crimes. If there were, would the designation have any real teeth? Is the Palmetto State's gay and minority population even clamoring for hate crime law protection? Would it create special treatment for a select group - as some conservative lawmakers seem to imitate?

Advocates say a statewide legislation would close a gap between the federal Hate Crimes Prevention Act, which applies exclusively to felony crimes and those lesser hate crimes that often go unpunished. A fully inclusive Hate Crimes Bill was re-introduced into the S.C. General Assembly in May. If passed, the bill will allow first responders - the local law enforcement agents - to support victims adequately, supporters say. It would also be the first time a South Carolina law recognizes its gay and lesbian residents. Maybe that's the bigger picture S.C. conservative lawmakers are afraid of the most. You mean ... gasp... gay and lesbian people actually reside, work and pay taxes in our state?

LBGT visibility and the issue of the Palmetto State's lack of hate crime protection for its gay residents comes to the forefront this weekend in Myrtle Beach for a celebration where local members of the gay community will band together in attempt to create a human rainbow flag. Gay visibility can change the feeling of a threat in our society while current economic and social strains usually lead to a rise in hate crimes overall, and that's what this weekend's attempt at creating the largest, human rainbow flag is all about.

But one of the common misconceptions about hate crimes is that it is about special laws for a select group of people - in other words, special treatment - for whom the crime is committed. On the contrary, advocates say hate crimes statutes protect the larger fundamental issue behind any action motivated by hate - that of its effect on the larger community.

"It's not really a gay thing," says Korey Frenton, a local gay businessman. "It's about protecting people and giving peace of mind to a community." The FBI's hate crime report for 2002 quotes a statement about hate crimes by the American Psychological Association saying, " . . . not only is it an attack on one's physical self, but is also an attack on one's very identity. Attacks upon individuals because of a difference in how they look, pray or behave have long been a part of human history."

"Being a gay man, I see discrimination more than I see hate crimes themselves," says Frenton. "But, I also think that most of the hate crimes go unreported - especially in rural areas." Could hate crimes legislation also give the victims more courage to come forward and speak out about bias-motivated crimes, especially in rural parts of South Carolina where many LGBT residents still live in fear?


FORT COLLINS, Colo. (Reuters) - A University of Wyoming student savagely beaten in an apparent hate crime because he was gay died early Monday, a Colorado hospital said.

Rulon Stacey, chief executive officer of the Poudre Valley Health System, told reporters Matthew Shepard, 21, died at 12:53 a.m. MDT (2:53 a.m. EDT) Monday. His family was at his bedside.

Shepard had been breathing with the aid of a ventilator since being found last Wednesday night beaten and tied for some 18 hours to a wooden fence where he was left to die just outside Laramie, Wyoming, a small college town.

He suffered a severe skull fracture and was burned in the attack. Police said the college student begged for his life.

Shepard was found by a passing motorist who at first thought that the figure on a fence post was a scarecrow.

I was 21 when Matthew Shepard took his last assisted breath. His death brought national and international attention to the debate for hate crimes legislation at both the federal and state level. Shepard was born just 24 days after me. He was studying at the University of Wyoming while I was across the country at the University of North Carolina at Charlotte.

His death became a signpost in my life. I had come out of the closet to my parents that year and was still re-identifying myself in the eyes of many friends and family members. We had both only spent a year being able to legally go to bars and drink - a modern day rite of passage. We were in many ways very similar - two young gay men excited about the lives that lay ahead of us.

Aaron McKinney and Russell Henderson were both charged with felony murder in the Shepard case and are serving two consecutive life sentences. They were not charged with a hate crime because no Wyoming criminal statute provided such a charge, nor does it still today. While hate crimes legislation wouldn't have likely changed or increased their sentences, due to the severity of the crime - the designation may have brought some needed closure to the issue, providing more security to LGBT residents everywhere. Instead, the issue over Shepard's homosexuality and the motivation behind the crime are argued by some even to this day.

In addition to South Carolina and Wyoming, the states without hate crimes laws are Arizona, Georgia (whose hate crime statute was struck down by Georgia Supreme Court in 2004), and Indiana.

Of the 45 states that do, 31 of them cover sexual orientation, 28 cover gender and 12 states plus the District of Columbia cover transgender or gender identity as well. The Hate Crimes Statistics Act of 1990 requires the Attorney General to collect data on hate crimes statistics nationwide. Since 1992, the Department of Justice and the FBI have jointly published an annual report on these statistics.

According to the DOJ/FBI 2009 report (the latest statistics available at press time), law enforcement agencies across the nation reported 6,604 hate crimes. Of that number, 1,436 were based on the victim's sexual orientation, with more than half of those motivated by anti-male homosexual bias (hate towards gay men). South Carolina law enforcement agencies reported 18 hate crimes in 2009 based on sexual orientation. Even though there is no hate crimes law here, police are still required to report any incidents they would investigate as a hate crime. For example, these could include lynching or mob attacks (with mob defined as a group of more than two people) and agents look for key language used, such as gay or racial slurs.

It would be 11 years after Shepard's murder before the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act would be signed into federal law by President Obama. But what does it really do? What's the difference and what does it mean for the states such as South Carolina with no LGBT-inclusive hate crimes protections?

First off, it gives federal authorities greater ability to engage in hate crimes investigations that local authorities choose not to pursue, according to advocates. It also gives money to help local and state authorities investigate and prosecute these crimes. I spoke with Greg Nevins, Supervising Senior Staff Attorney with Lambda Legal, the nation's largest legal organization working for the civil rights of lesbians and gay men, to better understand what this means for residents in states like S.C. without hate crime laws. He said the federal statue doesn't supersede state legislation but gives the added benefit for investigation support from a federal level. If the FBI were to determine that the crime was a hate crime under the law's standards, he said, then there could be additional charges at a federal level.


GREENVILLE COUNTY - (WYFF, Channel 4) Deputies say a man is under arrest, accused of throwing a fatal punch because he didn't like another man's sexual preference.

Greenville County sheriff's deputies arrested Stephen Andrew Moller, 18, of Taylors, in connection with the death of 20-year-old Sean William Kennedy.

Deputies said that Kennedy , 20, was walking to his car from Brew's Bar early Wednesday morning when Moller got out of another car and approached Kennedy. Investigators said that Moller made a comment about Kennedy's sexual orientation, and then struck him in the face.

When the news broke on May 18, 2007 of the murder of Sean Kennedy, fear and mourning hit home for many in the Grand Strand's LGBT community. Hate crimes legislation was already in the headlines across the nation.

Just months before Kennedy's death, Senator Robert Ford (D-Charleston) had introduced a Hate Crimes Bill (S-440) into the S.C. Senate and Representative Seth Whipper (D-Charleston) introduced the same bill into the S.C. House (Hate Crimes Bill H-3738). Despite an onslaught of pleas from residents from the LGBT and straight communities following Kennedy's death, the bills stalled and basically disappeared. According to Rep. Whipper, "(It) didn't even get discussed. At that time the conservatives . . . they just - the idea of hate crimes legislation? They felt like it was some kind of progressive agenda. All the while, hate crimes are increasing in South Carolina. The feeling was there was no need to bother with it because it wouldn't get through."

U.S. Senator Jim DeMint (R-South Carolina) was born in Greenville, where Kennedy was attacked and has represented the state since 2005. Before the passage of the hate crimes legislation in the U.S. Senate in 2009, DeMint argued that "There is no need or even any law enforcement benefit to create a special class of crimes based on ... the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity or disability of the victim." Calls to Sen. DeMint's office for this article were not returned as of press time.

One of the arguments made by DeMint and others is that hate crimes legislation favors a certain group of people, making criminal acts against them worse or more severe than those committed against others. According to DeMint, "It is based on the premise that violence committed against certain kinds of victims is worse and more in need of federal intervention and swift justice."

Why is hate crimes legislation important? Shouldn't any violent crime be punished equally? There is no debate over whether violent crimes should be punished. You have a problem, of course, when people commit crimes. You have an even bigger problem when people are committing those crimes against a group of people because of who they are - because of their race, their gender identity, their ethnicity or their sexual orientation.

Since Kennedy's death, his mother Elke has been essential in the fight for statewide legislation. The family set up Sean's Last Wish, a non-profit organization, to educate on bullying, hate and violence.


NEWBERRY COUNTY (WLTX) - Newberry County deputies say a man found dead Wednesday morning had been shot in the head and dragged behind a pickup truck, and they're now investigating to see if this could be a hate crime.

Sheriff Lee Foster identified the victim as 30-year-old Anthony Hill of Winnsboro at a Wednesday afternoon news conference with State Law Enforcement Division Director Reggie Lloyd.

The death of Anthony Hill in June 2010 eerily reminded the country of James W. Byrd, Jr., whose name adorns the Hate Crimes Prevention Act along with Shepard. In 1998, Byrd was murdered by three white men in Jasper, Texas while being dragged behind a pick-up truck for about two miles along an asphalt road as the truck swerved. They dumped his body in front of an African-American cemetery. The crime aided in passage of a Texas hate crime law in 2001.

Hate crime laws are clearly not just an issue of sexual orientation, although that issue seems to cause the greatest controversy. Racism, gender and national origin have long been targets, and South Carolina seems to have a long history of its own.

Following the Civil War, Constitutional amendments were made to clarify the rights of African Americans. The 14th Amendment, adopted in 1868, provided equal protection under the law to all people through the Equal Protection Clause. It would later be the basis for the historical Brown v. Board of Education case in 1954. Other Civil Rights era laws were put into place to protect "constitutional and federally protected rights, or conspiracy to 'injure, oppress, threaten or intimidate any person' a federal crime," according to the Liberty Education Forum.

Following the 1964 Civil Rights Act, Congress increased federal penalties, which was the birth of the "sentence enhancer" related to bias-related violence. Then Title 18 of the U.S. Code, Section 245 created a new federal crime where anyone who "by force or threat of force, willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere" anyone participating in "federally protected activities" without discrimination on account of race, color, religion or national origin.

Not surprisingly, again a South Carolina representative - this time Sen. Strom Thurmond dissented against President Johnson's plan saying [along with Sen. James Eastland (D-Mississippi)] "the bill ... is unsound, unwise and not needed." The two pointed out the threat of riots and mob violence referring to civil unrest in many urban black communities. They also said that the legislation would "give added protection to roving fomenters of violence."

The case of Hill's death has been investigated by the FBI, but no hate crime charges have been filed against the defendant, Gregory Collins, to date. Collins was sentenced to 28 years in prison for the slaying in August 2010.


ROCK HILL (WCNC) - The victim of a brutal beating that was caught on tape at a Rock Hill convenience store says he believes the attack was a hate crime.

Joshua Esskew said he stopped at the Gas Spot on South Cherry Road last Saturday. The 19-year-old said one second he heard a gay slur and the next second he was almost unconscious.

The public assault of Esskew earlier this year has re-launched the campaign for LGBT inclusive hate crimes legislation in the South Carolina. The brutal beating caught the attention of national media once a surveillance video showing the attack was released and subsequently went viral on the Web.

York County authorities charged five men with assault and battery of high and aggravated nature (a misdemeanor), that carries a prison term of up to 20 years. The men are all between the ages of 20 and 22-years-old. The men could face additional charges as the FBI continues to investigate to see if it qualifies as a hate crime under the new federal law.

Rep. John King (D-Rock Hill) told The Charlotte Observer following Esskew's attack, "We have an obligation to make our communities safe for all people. Hate against anyone is wrong and the acting out of hate in a crime needs punishment that is severe." King re-introduced the hate crimes bill and asked that it go immediately to the House floor when sessions reconvened a week after the incident. The bill was also introduced in 2010 and drew no co-sponsors and never got a hearing in the Statehouse. The bills are similar to those introduced by Whipper in the State House in 2007. It would make hate crimes a felony with punishments of two to 15 years in prison for someone convicted of assaulting, threatening or intimidating a person based on race, religion or sexual orientation.

Rep. Whipper is ready to support the bill again and said, "I think the timing might be better now. But it's a tight rope to try to get anything like that in one year of session. I don't know what circumstances could move people. I think we need to put it back up. This year, the budget was so pressing - you couldn't do a lot of that. I think this coming year, we need to go back to human resources - bring some of those issues back to the floor. I intend to join with whoever can to get this back on the floor. I think its time for this. We need to make sure that sexual orientation and gender identity is included in as well."

A spokesman for S.C. Gov. Nikki Haley has said repeatedly that she does not support state hate crime legislation along with other Republican legislators who empathize but say existing laws are enough to prosecute.


According to Christine Johnson, Executive Director of S.C. Equality, "It's going to take everyone to make a difference."

S.C. Equality, is a statewide non-partisan organization that works to secure equal civil and human rights for LGBT South Carolinians. "If LGBT South Carolinians want this - they can't sit back and let organizations like S.C. Equality do it alone," said Johnson. "It won't happen. People need to storm the capital. It's a state house. They need to know we are watching. They need to know that we expect this to pass. We're not going to make progress until we come out (of the closet) and demystify sexual orientation."

The organization says it will continue to lobby regularly, talking one-on-one with legislators to get rid of an apparent fear of LGBT people. The legislation only narrowly missed passage before - by a mere 4 votes. What's the mood in Columbia? "We cannot disregard the fact that the Tea Party has been successful in South Carolina," said Johnson. "We have our work cut out for us in having this conversation. It's important that S.C. acknowledges that we are really behind the eight ball on this."

Johnson poses the questions: "When is that day? How long do we wait before we say enough is enough? We're tired of being treated like second-class citizens. We are going to demand changes."

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