part three: Intent and Impact

Photo credit: pxleyes.com

Before digging into this piece, read/review part one: A Brief Introduction of Indiana Hate Crime Bills and part two: The Precarity of Rhetoric.

Current Indiana Hate Crime Bills
Sen. Greg Taylor and Sen. Sue Glick filed bias motivated crime bills at the start of the legislative session. To date, both bills are expectedly similar to those filed by the senators last year. Sen. Taylor’s bill again requires extensive training for law enforcement to ensure Indiana police departments accurately categorize and report hate crimes to the FBI’s Uniform Crime Reporting (UCR) program. SB271 makes the same important distinction as its predecessor SB336 between gender and gender identity, covering both gender assigned at birth and gender presentation, specific protections for gender nonconforming, trans, and nonbinary Hoosiers.

Sen. Glick’s current SB418 follows the trajectory of her bill last year, defining a bias motivated crime as a “committed offense with the intent to harm or intimidate an individual” due to their perceived or actual characteristics, language not unlike that within the vaguely worded amendment filed by Sen. Mike Delph that tanked the bill before the end of the 2017 legislative session. Sen. Glick and Sen. Taylor included public safety officials as a protected class in their combined bill SB439 last year, a dangerous move briefly explained in part two of this series. Community advocates following the current bills anticipate Blue Lives Matter amendments to both bills in the coming weeks.

A Brief History of Hate Crime Laws
Forty-five states and the nation’s capitol have a hate crimes law. A majority of state hate crime laws name categories of race, disability, sexual orientation, gender, and more as protected classes. Bias crime legislation is rooted in federal civil rights statutes, building on the momentum behind codifying and constitutionally protecting the rights of generationally brutalized and disenfranchised citizens of racialized backgrounds.

The widely varied definitions of bias motivated crimes borrow heavily from the precedent created by the Civil Rights Act of 1968. The laws are ill-fated attempts to apply identity and status-based civil rights protections to state and federal criminal codes meant to serve as a theoretical fix within a justice system that not only historically and presently leaves violence against marginalized people actively unaccounted for, but is foremost a means of systemically enacting state violence itself.

Most state hate crime laws came to fruition during a nationwide push for legislation in the 1980s and 1990s. Efforts to designate hate crimes nationwide reached a pinnacle in 2009 when President Barack Obama signed the Matthew Shephard and James Byrd Jr. Crime Prevention Act into law, expanding the federal hate crime statute to include protections for gender, gender identity, sexual orientation, and disability. The historic legislation, long fought for by hate crime law advocates, victims’ families, and mainstream LGBTQ activists, invites continued interrogation of growing support among marginalized communities for such laws.

Intent vs. Impact
Lauryn Hill imparted timeless wisdom in her song Mr. Intentional. “See the road to hell is paved with good intentions / Can’t you tell, the way they have to mention?” Hate crime laws are just one of many political projects demonstrating the dynamic and disconnect between unchecked motivations and direct consequences of policy branded as good, right, moral, and progressive.

One such example is Indiana’s feticide law, enacted to little fanfare in 1979 and enhanced by popular demand in 2009. The law was originally written to apply an additional charge and penalty enhancements to murder or aggravated assault of a pregnant person resulting in the death of a preterm fetus. The enhanced statute was a direct response to the shooting deaths of Katherin Shuffield’s preterm twins in utero during a bank robbery in 2008. The bill authored by Sen. Jim Merritt reclassified feticide from a C to a B felony and was overwhelmingly supported by lawmakers on both sides of the aisle and unlikely political counterparts, pro-choice Planned Parenthood of Indiana and Kentucky and pro-life Indiana Right to Life.

However, unlike similar statutes nationwide, the Indiana law does not explicitly exempt pregnant Hoosiers from its scope. As a result of prosecutorial interpretation and discretion over the last decade, feticide charges have been used to criminalize the pregnancy outcomes of two Asian American women, Bei Bei Shuai and Purvi Patel. The state eventually dropped the feticide charges against both women and the decision in the Patel case provides legal precedent to close the exemption loophole in the feticide statute in 2016. Both cases demonstrate a clear move by the state to use a bipartisan law to legally surveil the pregnancies of poor families and people of color and restrict access to reproductive care.

In a May 2016 hearing in the Patel case, her attorney created a Venn diagram during the last six minutes of the hearing. One circle was labeled “unlawful abortion statute” and the other “feticide statute.” The former was repealed before the original feticide bill HB1414 was introduced and passed in 1979. There was one major difference between the expired and new statute. Under the unlawful abortion statute, pregnant Hoosiers were explicitly exempt from prosecution. Under the feticide statute, the language in the law is so vague, pregnant Hoosiers can be held criminally liable for their pregnancy outcomes.

A growing concern among reproductive justice advocates is the potential of anti-abortion lawmakers to identify fetuses as a protected class, similar to efforts to include police officers as a protected class via Blue Lives Matteramendments, effectively making a hate crimes statute another means to challenge access to constitutionally protected, legal, and safe abortions as well as comprehensive reproductive care. Sen. Aaron Freeman has employed this tactic in SB203, a redundant, feticide-adjacent bill defining preterm as a fetus at any stage of development, a law that would: (1) overturn the precedent gained with Purvi Patel’s case, (2) create barriers for fertility treatment centers, and (3) establish legal grounds to introduce fetal personhood, a conservative strategy to restrict and outlaw abortion altogether. It is clear there is a long game nearly forty years in the making to make Indiana an unsafe place for pregnant Hoosiers, especially those from marginalized communities, using a law promoted and supported to protect pregnant Hoosiers.

Hate crime laws operate similarly, revealing life-altering limitations and failings of legislation motivated by little substance and much good intent. In 2015, Bayna-Lenkeim El-Haim was convicted of first and second degree assault of two gay white men in Manhattan. News reports consistently described the incident as an anti-gay attack committed by a homophobic brute. El-Haim is black, tall, and built, characteristics perfectly juxtaposed with the victims of the crime. The case was originally investigated as a hate crime but evidence proved insubstantial. Video footage, character witnesses, and witnesses at the scene reveal several key details obscured or determined irrelevant during the trial and sentencing hearing. El-Haim is also queer and an LGBT activist of over two decades volunteering as an HIV/AIDS tester and ballroom scene mentor for queer youth. He alleges his version of events challenge the initial investigation and subsequent campaign to charge him with a hate crime. One of the victims called El-Haim a racial slur, hit him with a bag when directly confronted, and brandished a knife from the table, escalating the conflict. El-Haim maintains he acted in self-defense in response to anti-black racism, but was sentenced to nine years in prison.

Though prosecutors did not file hate crime charges, the case illustrates the precarious nature of and profound lack of clarity within identity-based criminal codes. The most clearly defined hate crime laws and protected classes do not account for power dynamics and structures informing and impacting interpersonal and communal conflicts, abuses, incidents codified as hate crimes. As explored in part two of this series, hate is a legal concept wrought with varied mis/interpretations, open to selective mis/application, a harmful risk and reality disproportionately affecting marginalized people.

In her piece for Village Voice exploring El-Haim’s case, Grace Dunham makes an astute observation: “Because of socioeconomic factors, the definition of what a hate crime even is tends to favor those who can afford to plead their cases in court. Hate crime laws are as susceptible to selective application as the rest of the American legal system.”

Hate crime statutes, though well-intended, “must be considered in the context of the failures of our legal systems, and specifically, the violence of our criminal justice system,” writes Dean Spade in his seminal text Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law.

Vann R. Newkirk II, staff writer at The Atlantic, provides a needed reminder, “A system cannot fail those it was never meant to protect,” a reflection on this important context. The U.S. legal system is rooted in unjust policy and practice from its inception, and hate crime laws amount to little recourse for discriminatory harm, and often act as yet another tool to criminalize and control marginalized communities.

Support for Hate Crime Laws
Dean Spade sheds light on why marginalized groups, specifically prominent LGBTQ+ organizations and individuals, support hate crime legislation in his thought-provoking Against Equality essay Their Laws Will Never Make Us Safer.​

“… ongoing experience of marginalization makes some of us deeply crave recognition from systems and people we see as powerful or important. This desperate craving for recognition, healing, and safety can cause us to invest hope in the only methods most of us have ever heard of for responding to violence: caging and exile.”

Hate crime laws appeal to marginalized people experiencing discrimination that causes property damage, bodily injury, or death. The laws appear to validate identity-based harm and invite communities targeted by state violence to feel included and protected by the state. Spade continues, “Everything about our current law enforcement systems indicates that this is a false promise, and it’s a false promise that targets people of color and poor people for caging and death while delivering large profits to white elites.” It is worth noting queer people of multiple marginalized identities, whose needs and concerns are often overlooked and erased by mainstream LGBTQ+ institutions, are disproportionately affected by this reality as well.
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Efforts to reform the legal system often reifies rather than dismantles state power destroying marginalized communities. Indiana voters, lawmakers, political and community advocates can rescind growing support for both bias crime bills. The opportunity to prevent a hate crimes law can curtail another form of state violence embedded in the criminal code harming vulnerable Hoosiers.