Hate crimes are crimes committed because of the victim’s race, religion, color, gender, ethnicity, sexual orientation, gender identity, or gender expression. The first modern federal laws prohibiting hate crimes were enacted in 1968.
By 2020, 47 states and the District of Columbia had enacted criminal laws against hate crimes; only Arkansas, South Carolina, and Wyoming have not. But not every state with hate crime laws includes all of the above classifications under its protections.
Unfortunately, hate crime legislation is often introduced in the wake of terrible, bigoted violence. This article explains a little about the history of hate crime legislation in the United States. For more information, see Hate Crimes: Laws and Penalties.
During the 1960s in the American South, civil rights workers and social activists faced violence and threats from members of the Ku Klux Klan and other organizations committed to segregation. Local prosecutors and police were often unwilling to prosecute these crimes (and, in some cases, were allied with the perpetrators).
For example, in 1964 in Mississippi, members of the Ku Klux Klan killed civil rights workers James Earl Chaney, Andrew Goodman, and Michael Schwerner. After local officials refused to prosecute the case, some of the assailants were tried in federal court for civil rights violations under the theory that they conspired to violate the victim’s civil rights by murdering them due to their race. (18 U.S.C. § 242.) Several were sentenced to (fairly short) prison terms. For more information on federal civil rights prosecutions, see Federal Prosecutions for Civil Rights Violations.
Against the backdrop of widespread outrage over these and similar crimes, federal lawmakers passed:
States began enacting their own laws criminalizing hate crimes in the 1980s. Early defendants challenged the laws arguing they violated their rights to free speech. This challenge was put to the test in Wisconsin v. Mitchell, 508 U.S. 476 (1993), where the defendants, a group of black men, discussed a scene from the movie Mississippi Burning, which is based on the 1964 killing of Chaney, Goodman, and Schwerner. Defendant Mitchell encouraged the group to commit violence against whites, and they attacked a white teenager. They were convicted under Wisconsin's hate crime law.
The U.S. Supreme Court held that hate crime laws did not violate a defendant’s right to free speech, so long as the laws prohibit conduct, not mere speech. The defendants' speech had been introduced as evidence of bias or bigotry, and the Court decided that the First Amendment does not prohibit the use of speech as evidence of intent.
Throughout the 1990s and 2000s, more states enacted hate crimes legislation, although state laws varied on which classes of individuals were offered protection under the laws. All state laws protect people attacked because of their race, ethnicity, or religion, but only some state laws protect people from criminal acts based on the victim’s sexual orientation, gender, disability, gender identity, or gender expression.
In June 1998, James Byrd, Jr., an African American man, was murdered in Jasper, Texas, by white supremacists who kidnapped, beat, and tied him to the back of a pick-up truck, dragged him for three miles before he was decapitated, and then dumped his body in front of an African American church. Three men were ultimately convicted of Byrd’s murder.
Just four months later, Matthew Shepard, a university student, was tortured and murdered by two men in Laramie, Wyoming, because he was gay. At the ensuing murder trial, one of the attackers argued that he killed Shepard because Shepard made homosexual advances toward him (referred to as the gay panic or LGBTQ+ panic defense and discussed below). Both killers received life sentences. Although later media reports suggested that the killing was the result of a drug-fueled robbery gone wrong, many people involved the case dispute this characterization, noting ample evidence that the defendants were motivated by homophobia.
Neither Byrd's nor Shepard’s killers were charged with hate crimes, because neither Texas nor Wyoming had passed hate crimes legislation at the time. In response to Byrd’s lynching, Texas enacted a state law against hate crimes. Wyoming still has no law against hate crimes. In 2009, Congress passed the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009 (18 U.S.C. § 249), making it a federal crime to cause or attempt to cause injury to any person because of the victim’s “race, color, religion, or national origin,” or “religion, national origin, gender, sexual orientation, gender identity, or disability” if the defendant, the victim, or a weapon used has traveled over state lines or the crime has any link to or effect on interstate commerce.
A report from the National Coalition of Anti-Violence Programs shows that transgender people, especially transgender women, are disproportionately targeted for physical violence and police violence.
In 1993, Brandon Teena, a transgendered man, was raped and later murdered by two men after they discovered that she was anatomically female. The murder was later dramatized in the movie Boys Don’t Cry.
In 2002, Gwen Araujo, a transgendered woman, was murdered in California by four men after the men—some of whom had engaged in sexual activities with her—discovered that she had a penis. At the subsequent trials in Araujo’s murder, defendants claimed “trans panic,” a version of the "gay panic" defense, where the defendant claims that the shock of discovering that a person is transgendered caused the defendant to panic and attack. The jury ultimately rejected the argument and convicted two of the killers of murder. The two other men pled guilty to manslaughter.
As of June 2020, 20 state laws and federal law offer protection to people who are victimized because of their gender identity or expression.
Defendants continue to raise the gay panic or LGBTQ+ panic defense today. While raised in various ways, generally, the defendant blames the victim’s sexual orientation, gender expression, or gender identity for causing the defendant’s violent reaction. Some defendants allege a nervous or psychotic break occurred, while others claim their violent actions were due to provocation or self-defense.
More than 10 states now prohibit defendants’ use of the LGBTQ+ panic defense, including California, Colorado, Connecticut, Hawaii, Illinois, Maine, Nevada, New Jersey, New York, Rhode Island, and Washington. The American Bar Association also supports state legislative action to prohibit the defense.