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20 A person who has been singled out for victimization based on some group characteristic . . . has, by that very act, been deprived of the right to participate in the life of the community on an equal footing for reasons that have nothing to do with what the victim did but everything to do with who the victim is. In short, a bias attack is as much an attack on the victim’s persona as on the victim’s person . . . By their very nature, moreover, these harms are not confined to the actual victim. Because bias crimes are triggered by the victim’s membership in a larger group, the feelings of vulnerability and injustice created by bias crimes are frequently and understandably shared by other members of the group. —American Civil Liberties Union amicus curiae brief in support of the petitioner in Wisconsin v. Mitchell, 508 U.S. 476 (1993) Hate crime policy is a complex topic. Not only do scholars and policymakers debate the effectiveness of hate crime legislation, they also debate which groups should be protected by the laws. As demonstrated in the previous chapter, one of the most controversial issues is whether gender should be included as a protected group. To understand how gender fits within the hate crime domain, it is helpful to understand the development and enforcement of hate crime legislation in general. The Hate Crime Statistics Act The hcsa, the first federal law specifically related to bias crimes, was passed by Congress in 1990 (Federal Bureau of Investigation 1999).Although the hcsa did not make hate crimes federal offenses, it did require the Department of Justice to annually collect and publish data reported from local law enforcement agencies (Gerstenfeld 2004, 28; Jenness and Broad 2005, 37; Weisburd and Levin 1993–94). 2 Hate Crime Legislation The Past and Present Hate Crime Legislation | 21 In the fbi’s most recent report, there were 9,168 bias-motivated offenses reported by participating agencies (Federal Bureau of Investigation 2009b). The majority of offenses involved intimidation, assaults, and forms of destruction, damage, or vandalism; law enforcement agencies also reported seven murders and eleven rapes. More than half of the reported hate crimes involved racial bias (51.3 percent, or 4,704), followed by bias against sexual orientation (17.6 percent, or 1,617) and religion (17.5 percent, or 1,606). These proportions are similar to those in previous years’ reports. However, local law enforcement participation in the process is voluntary; therefore, the true count of hate crimes throughout the country is unknown. The hcsa also directed the attorney general to establish guidelines for data collection and to establish what evidence was necessary to demonstrate a biasmotivated offense (Jacobs and Potter 1998, 39; Pendo 1994).1 The original act required the Department of Justice to collect and report data on crimes motivated by race, ethnicity, religion, and sexual orientation, but in 1994 the act was amended to include disability (Center for Women Policy Studies 2001). The category of gender was not added until the recent passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (hcpa) in October 2009 (Anti-Defamation League 2010). The initial exclusion of gender from the hcsa was not due to a lack of effort by advocacy groups dedicated to women’s issues (McPhail 2002b). Before the passage of the act, a group called the Coalition on Hate Crimes Prevention was formed in order to establish the prevalence of hate crimes, and then to sponsor the act (McPhail 2002b). The coalition consisted of civil rights, religious , and gay and lesbian groups and law enforcement organizations (Angelari 1994); yet, as McPhail observes, “women’s groups were notably absent” (2002b, 128). Interestingly, both the National Organization for Women and the National Coalition against Domestic Violence attempted to participate in the coalition in order to modify the bill to include gender; however, the coalition members voted to exclude the gender category and canceled all subsequent meetings with the women’s rights groups (Angelari 1994; McPhail 2002b). The coalition argued that gender should be excluded because lobbying for its inclusion would have delayed passage of the bill, would not have improved the collection of data on domestic violence or rape, and might even have made collecting data too difficult, due to the prevalence of gender-bias crimes (Angelari 1994, 83). Hence, during the first set of congressional hearings in 1985, testimony revolved around the three core categories of race, ethnicity, and religion. In 1986, [18.225...

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