Hate Crimes Sneaks Into Defense Authorization

With little notice from the mainstream media, the U.S. Senate passed by an overwhelming margin an amendment that could lead to federal prosecutions of nearly all “hate-crimes.”

The amendment also adds “sexual orientation” and physical disability as protected classes under the civil rights statute of the U.S. Criminal Code for the first time.

The legislation came as an amendment to the Defense Authorization bill (S. 2400). It netted 65 votes, with only two senators–Jim Jeffords (I.-Vt.) and John Kerry (D.-Mass.)– absent. Had they been present, the bill would have gotten 67 votes, a two-thirds majority. Eighteen Republicans and all Democrats present voted in favor.

“It’s been a priority of ours for years,” said Winnie Stachelberg of the Human Rights Campaign, a homosexual rights group that lobbied heavily for the amendment. She said that although no more than ten federal hate-crimes prosecutions have occurred in any year since passage of the original 1968 hate-crimes law, the bill would serve as “a clear statement against violence and intolerance” of homosexuality. “Laws send signals, and this is an important signal,” she said.

The same amendment passed the Senate in June 2000 with 57 votes, but was removed from that year’s Defense authorization bill in negotiations between the House and Senate. A spokesman for House Armed Services Chairman Duncan Hunter (R.-Calif.) did not respond to inquiries, but most observers believe the hate-crimes language will be removed in conference next month.

Conservatives–most of whom are skeptical of the whole idea of “hate crimes”–had several problems with this bill, which was sponsored by Sen. Gordon Smith (R.-Ore.). First, under the bill’s broad language, the U.S. attorney general would have almost absolute discretion to intervene in what normally would be a state criminal prosecution when there is reason to believe that “hatred” for homosexuals or disabled persons was a motivating factor.

Sen. Jeff Sessions (R.-Ala.), citing a few examples of past crimes that could have been construed as “hate-crimes” but were simply prosecuted by traditional means, expressed doubts about the need for such a law. “One offense occurred in my home state of Alabama, and [the offender] was tried and given life without parole,” said Sessions, formerly Alabama’s attorney general. “So I am not aware of those offenses’ being inadequately prosecuted.”

Second, the amendment would criminalize defendants’ alleged thoughts, rather than their alleged actions. Critics say they could have a chilling effect on free speech.

Because homosexuality is a controversial subject for many Americans, those who publicly express disapproval of it could find themselves in greater jeopardy than other defendants if they are later accused of a crime. This could chill freedom of speech, much like Canada’s “hate speech” ban (C-250), which criminalizes criticism of homosexuality. France’s center-right government will soon present a similar bill to criminalize “homophobia.”

Stachelberg rejected the free speech concern as “a red herring.” “It is an argument used against this piece of legislation by people who would otherwise find different arguments to level at the bill,” she said. “There are top 1st Amendment speech advocates in the U.S. Senate–Sen. [Russ] Feingold [D.-Wis.] being one of them–who support this legislation.” Feingold co-authored the campaign finance reform bill that forbids the use of candidates’ names or images in certain ads during the final weeks of election campaigns for federal office.

Sen. John Sununu (R.-N.H.), who took considerable heat from gay rights groups for his “no” vote on this controversial bill, raised another objection in a written statement. “Legislation that singles out certain violent crimes for special prosecution or additional penalties is unfair to the families of those victims whose murders are not given such special consideration,” he said.