learn more about the federal statute used to combat racially and religiously bias-motivated violence, and about current hate crimes legislation.
Before the October 2009 passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, Section 245 of Title 18 of the U.S. Code was the primary federal statute used to combat racially and religiously bias-motivated violence. The legislation prohibits intentional force or threat of force on the basis of race, color, religion or national origin for the purpose of interfering with an individual's enjoyment of a federal right or benefit, such as serving on a jury, voting, or going to school.
Under the statute, the government carried the burden of proof: federal authorities were required to prove the crime occurred because of a person's membership in a protected group, such as race or religion, and because he/she was enjoying a federally protected activity. The legislation left federal prosecutors powerless to intervene in bias-motivated crimes if they could not establish the victim's involvement in a federally protected activity. Additionally, federal authorities could not intervene in crimes based on sexual orientation, gender identity, gender, or disability.
The new federal hate crime statute, the 2009 Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, allows the federal government to provide assistance in the investigation and prosecution of hate crimes, or in limited circumstances, to investigate and prosecute hate crime cases when a locality is unable or unwilling to prosecute. The legislation also ensures that those victims of hate crimes because of race, color, religion, national origin, gender, sexual orientation, gender identity or disability are all covered by federal law.
The Hate Crime Statistics Act (28 U.S.CA 534)
Enacted in 1990, the Hate Crime Statistics Act (HCSA) requires the Justice Department to collect data on crimes which "manifest prejudice based on race, religion, sexual orientation, or ethnicity" from law enforcement agencies across the country and to publish an annual summary of the findings. In 1994, Congress expanded coverage of the HCSA to require FBI reporting on crimes based on disability, as well. By reviewing statistics and charting the geographic distribution of these crimes, police officials may be able to recognize patterns and anticipate an increase in tensions in a given jurisdiction.
While the collection and study of this data may help police recognize patterns and offenders, as well as anticipate increases in tensions and incidents, there are many flaws in the reporting system. Most importantly, law enforcement agencies are not required to participate in the reporting. United Against Hate, the coalition of civil rights, law enforcement, and religious groups advocating passage of enhanced hate crimes legislation, encourages every law enforcement agencies to comply with HCSA by reporting hate crimes. While cities may report no incidents of hate crimes, in reality, local law enforcement officers often either do not recognize or categorize certain crimes as hate crimes. The Hate Crime Statistics Act brings hate crimes into the open, which challenges the common claim that "hate crimes do not happen in my neighborhood."