By Sarah Cheney
Hate Crimes against the LGBTQ+ community have continued to be a serious problem in the United States. The Human Rights Campaign (HRC) has done monumental work to fight for equality for all. However, there are issues the HRC has yet to tackle which could change the way the United States combats hate crimes targeting the LGBTQ+ community. One of these issues is the lack of continuity of hate crime data collection in the LGBTQ+ community and the lack of prioritization of law enforcement in taking part in community building events. This memo seeks to address these problems to the HRC in hopes of enough significant social and political backing that it garners the attention of law enforcement, specifically the Department of Justice, so that gaps in reporting are better addressed.
In order to discuss Hate Crime Policy affecting the LGBTQ+ community, there must first be a discussion of what actions are most widely defined as hate crimes. The criminological definition of hate crime refers to criminal behavior motivated by prejudice, not by hate, therefore a hate crime is meant to distinguish “criminal conduct motivated by prejudices from criminal conduct motivated by lust, jealousy, greed, politics, and so forth” (Jacobs & Potter, 1997, p. 2) 1. Unlike other crimes, hate crimes put emphasis on the offender’s values and character and lobbyists involved in hate crime laws view prejudice as worse than all other criminal motivations. In regards to some of the most important legislation that has passed and acted as the foundation for Hate Crime Policy in the LGBTQ+ community, there will be an overview of the Hate Crimes Statistics Act (HCSA) and the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (HCPA).
In 1990 there was the creation of the Hate Crime Statistics Act (HCSA) which authorized hate crimes reporting and data collection based on voluntary law enforcement cooperation. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (HCPA) represented an expansion of the hate crime laws of 1968 and 1996. Specifically, it expanded the definition of hate crime to include gender, disability, gender identity, and sexual orientation.2 In the case Wisconsin v. Mitchell (1993), the U.S. Supreme Court held that hate crime laws do not violate a defendant’s right to free speech, as long as the laws prohibit conduct, not just speech.3 These two pieces of legislation allowed Hate Crime Policy to attain the legal and social policy building blocks it needs to become a data fueled, criminologically focused field of study. However, on a state by state basis, there has been a significant lag in Hate Crime Policy advancing quickly enough to match the needs of criminologists. With this in mind, the social and quantitative shortcomings created in part by lack of uniformity in state requirement and law enforcement will be discussed further in this work.
The goal of criminologists in recording hate crime data is to understand how much of a problem hate crimes are in specific communities within the United States. Unfortunately, the volume of this type of data currently cannot be determined in its entirety. The HCSA authorizes reporting and data collection by law enforcement on a voluntary basis. This means that, currently in 20 states, law enforcement is not required to report data (official reports) they receive to the government. Therefore, much of the data that criminologists are receiving through the Department of Justice’s Uniform Crime Report (UCR) is not entirely accurate. Understanding just how big of a gap the U.S. has in its two largest databases in recording crime and victimization requires comparing the data between the Uniform Crime Report (UCR) and the National Crime Victimization Survey (NCVS). In 2018 the UCR reported about 8,800 hate crime victims whereas the NCVS estimated 198,000 hate crime victims 4. One explanation for this disparity is that the goal of UCR is to record law enforcement numbers whereas the goals of the NCVS is to record general victimization numbers. This means that the NCVS is focusing on the “dark figures of crime”, otherwise known as “hidden victimizations that the UCR is unable to track” defined as the amount of unreported crime 5. This is meant to encapsulate victimizations that are not recorded in the UCR because circumstances in which victims are not reporting to law enforcement and circumstances in which there is disconnect between law enforcement and the government. However, regardless of difference in purpose, the U.S. government should want UCR and NCVS data to be identical so that all victims of crime are having their experiences reported.
This comparison in data is particularly important to the LGBTQ+ community because there have been studies that show that members of the LGBTQ+ community experience more severe damage to their mental health after assaults.6 They are also more likely to be victims of assaults than their heterosexual counterparts. This is significant because a combination of poor mental health and poor relations between the LGBTQ+ community and law enforcement could result in underreporting. This could be because LGBTQ+ members of the community feel uneasy reporting to law enforcement; a result of bad blood between the LGBTQ+ community and law enforcement resulting from events such as the Stonewall Riots.
A problem that goes hand in hand with non-mandatory reporting is that the U.S. does not prioritize interactive community building events between law enforcement and the LGBTQ+ community. In order to try to repair the relationship between law enforcement and the LGBTQ+ community, law enforcement must have a basic understanding of the community they are serving and the problems that community is actively facing. This is evident from a sociolegal study done on California police and sheriff’s agencies. In this study, it was found that the instrumental impacts of Hate Crime Policy do exist, however, they are contingent on the agency’s culture and community attitude. “When policies do exist, however, they generate significant positive changes in reporting practices. However, the effect of adopting a Hate Crime Policy is not evenly distributed across law enforcement agencies…” (Grattet & Jenness, 2008, p. 518).7 Essentially, although Hate Crime Policy can be enacted and pushed onto law enforcement agencies, real change in reporting truly improves when the officers are devoted to, have an active relationship with, and understand the community they are serving. Therefore, we can see that the environment of the law enforcement agencies have the potential to be changed by watchdogs or interest groups 8.
My primary proposal to improve data collection on hate crimes targeting the LGBTQ+ Community in the U.S. would be to: (1) Enforce mandatory reporting across all 50 states, (2) Re-allocate law enforcement funding to emphasize interactive community building events with the LGBTQ+ Community. One model in implementing mandatory reporting across all 50 states would be to support law enforcement in this change by reallocating funding to increase interactive events with the LGBTQ+ community. This reallocation of funds would be used to finance a partnership between law enforcement and non-profits as well as LGBTQ+ public programs. This funding would also be put towards planning panels, specifically communal building events, where law enforcement hold public meetings with LGBTQ+ leaders, watchdog groups, and community volunteer workers. This will allow them to hear directly from leaders who can represent the greater LGBTQ+ community in their specific cities and states.
A good example of the type of law enforcement and LGBTQ+ interactive events being discussed would be the layout of a case study in Yorkshire, UK. In this case study, a public project partnered with the South Yorkshire LGB&T Independent Advisory Group (IAG) which comprised of representatives of the police force, the police authorities, and the public.9 Their goal was to expand upon a social model of relationships between criminal justice agents, community voluntary workers, public servants, and the LGBTQ+ community. They found that the most successful techniques they used in facilitating positive interactions between minorities in the LGBTQ+ community and Police were through Panels (made up of representatives of different minority communities). They had direct discussions with police regarding hate crime policies and procedures. This type of interaction fueled discussions which highlighted how intersectionality can affect hate crime victimization in minority communities.
These conversations fostered a better relationship between the LGBTQ+ community and police which allowed for easier access for those in that community to talk to police about hate crime centered issues in an open and personal setting. This case study parallels the findings discussed earlier in this work about how law enforcement environments and commitment to issues in their communities can directly increase hate crime victimization reports. These types of community building activities provide LGBTQ+ marginalized people with access to the police who in turn meet the people that their agencies hate crime policies are there to protect and hold abusers accountable. This type of relationship could change police behavior involved in hate crime reporting.
Non-mandatory reporting by Law Enforcement agencies and a lack of prioritization of interactive events with the LGBTQ+ community have held back major hate crime policies from necessary advancements needed to provide criminologists with accurate data. This is ultimately the result of a law enforcement to government pipeline failure. Ultimately, a central proposal was made which included: (1) Enforcing mandatory reporting across all 50 states, (2) Re-allocating law enforcement funding to emphasize interactive community building events with the LGBTQ+ Community. Through evidence in this written work, these events would improve law enforcement culture regarding serving the LGBTQ+ community and would result in greater successes and consistency in reporting.
1 Jacobs, J., & Potter, K. (1997). Hate Crimes: A Critical Perspective. Crime and Justice, 22, 1-50. Retrieved December 8, 2020, from http://www.jstor.org/stable/1147570
2 Law School, C. (2020, July). Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. Retrieved December 08, 2020, from https://www.law.cornell.edu/wex/matthew_shepard-_and_james_byrd_jr_hate_crimes_prevention_act
3 Wisconsin v. Mitchell. (n.d.). Oyez. Retrieved December 8, 2020, from https://www.oyez.org/cases/1992/92-515
4 FBI. (2019, October 29). Incidents and Offenses. Retrieved December 08, 2020, from https://ucr.fbi.gov/hate-crime/2018/topic-pages/incidents-and-offenses
5 Bureau of Justice Statistics home page. (2019). Retrieved April 06, 2021, from https://www.bjs.gov/index.cfm?ty=dcdetail&iid=245
6 Spalek, B. (2008). Lesbian, gay, bisexual and transgender communities: Crime, victimisation and criminal justice. In Communities, identities and crime (pp. 189-206). Bristol: Bristol University Press. doi:10.2307/j.ctt9qgkfp.12
7 Grattet, R., & Jenness, V. (2008). Transforming Symbolic Law into Organizational Action: Hate Crime Policy and Law Enforcement Practice. Social Forces, 87(1), 501-527. Retrieved December 8, 2020, from http://www.jstor.org/stable/20430865
8. Sarah Charman. (2020) Making sense of policing identities: the ‘deserving’ and the ‘undeserving’ in policing accounts of victimisation. Policing and Society 30:1, pages 81-97.
9 Duggan, M. (2014). Working with lesbian, gay, bisexual and transgender communities to shape hate crime policy. In Chakraborti N. & Garland J. (Eds.), Responding to hate crime: The case for connecting policy and research (pp. 87-98). Bristol, UK; Chicago, IL, USA: Bristol University Press. doi:10.2307/j.ctt16d69xh.13.