The fatal beating of 21-year-old University of Wyoming student Matthew Shepard, apparently motivated at least in part by his homosexuality, has renewed the debate over hate crime legislation. The murder prompted calls from gay activists, editorial pages, and public officials, including Attorney General Janet Reno and President Clinton, for passage of the Federal Hate Crimes Protection Act. This bill would allow federal prosecution of crimes motivated by hatred based on gender, sexual orientation, and disability.
In their recent book Hate Crimes: Criminal Law and Identity Politics, criminologists James Jacobs and Kimberly Potter argue that ordinary criminal law provides adequate protection for victims of hate crimes–a point underscored by the Shepard case, in which prosecutors plan to seek the death penalty for the accused killers. Jacobs and Potter also warn that focusing on the identity aspects of crimes with often ambiguous motives can exacerbate tensions between groups, and they note that hate crime laws raise First Amendment concerns because they tend to punish perpetrators for their beliefs. But apart from the general problems posed by laws that single out "hate" or "bias" crimes, the bill before Congress contains an especially insidious provision: the addition of gender to the existing categories of race, religion, and ethnicity.
Except for one or two sensational cases, such as the 1989 massacre of 14 female engineering students at the University of Montreal by Marc Lepine, one would be hard pressed to think of a gender-based hate crime comparable to the murder of Shepard or of James Byrd, the black man dragged to his death behind a pickup truck in Texas last summer. Even anti-gay violence is directed at men more than 80 percent of the time.
But many feminists argue that we simply fail to recognize the gender bias in crimes against women such as rape ("both a symbol and an act of women's subordinate social status to men," according to University of Michigan law professor Catharine MacKinnon) and domestic abuse. These theories–distilled to sheer lunacy in the work of Andrea Dworkin, who believes that women live under "a police state where every man is deputized" and that heterosexual sex is a violation by definition–may be intellectually stimulating to some, but they are far too speculative to serve as a basis for legislation.
Forensic psychology does not support the view that rapists are driven primarily by hatred toward women rather than, say, sexual compulsion or anger at the whole world. The feminist interpretation of rape as intrinsically gender-motivated cannot explain sexual assaults on boys, or the fact that "date rape" is no less common among gay men than among heterosexuals. The statement that "women are raped because they are women" may ring true, but in a biological rather than a political sense: When a man's sexual urges are directed toward women, chances are that his sexual aggression will be too.
As for domestic violence, University of British Columbia psychologist Donald Dutton and other researchers have found that wife beating is far more strongly associated with "borderline personality disorder" (characterized by a proclivity for intense relationships, insecurity, and rage) than with patriarchal attitudes; drugs and alcohol are major factors as well. Aside from the much-debated issue of female aggression toward male partners, it is no longer in dispute that physical abuse is at least as common in gay and lesbian couples as in heterosexual ones.
One might point out, too, that male violence is directed mainly at other males. If sexual assault and intimate violence against women are related to gender, surely so are male-on-male attacks triggered by real or perceived slights, sexual rivalry, and thrill seeking. Thugs who rape a woman may also beat up men just for fun, like the teenagers convicted in the notorious 1989 rape of the Central Park jogger. Describing their "wilding" rampage in the park to a detective, one of the teens said that "wilding" meant "going around, punching, hitting on people"–not just women. Yet the attack on the jogger became a paradigm of gender-motivated violence to many feminists; it was cited as such by Helen Neuborne, then president of the National Organization for Women Legal Defense Fund, in testimony to the Senate Judiciary Committee.
Despite these logical flaws, the radical feminist theory of "gender violence" has made significant inroads in the legal system. It was incorporated into the Violence Against Women Act (VAWA), passed by Congress in 1994, which allows federal civil rights suits for violent crimes "motivated by gender." The application of VAWA, however, is limited by the fact that it provides only for monetary damages. Such litigation, usually lengthy, doesn't make sense unless there are significant assets to go after. Some VAWA cases involve divorcing wives alleging abuse by wealthy husbands; recently, a VAWA lawsuit was filed against basketball bad boy Dennis Rodman by a Las Vegas Hilton casino employee who accuses him of grabbing her by the sides of the torso and lifting her (which, she claims, caused her underwire bra to be painfully pushed into her breast). Other legal action has targeted deep-pocket entities: A suit filed in December 1995 by Christine Brzonkala, a former Virginia Polytechnic student who claimed that she was raped by two male students, named not only the alleged perpetrators but the college as defendants.
The Federal Hate Crimes Protection Act, by contrast, would open the door to federal criminal prosecutions for sexual assault or domestic violence, particularly in high-profile cases where an acquittal or dismissal in state courts results in an outcry from women's groups. Men accused of these crimes would effectively lose their double jeopardy protections, like the Los Angeles policemen who were convicted of beating Rodney King. (Under the doctrine of "dual sovereignty," a federal offense is not the same as a state offense, even if it consists of the same action.) However gratifying the outcome of some cases might be, the process is troubling. Moreover, in a "bias" case, the defendant could find himself on trial for having sexist views, watching X-rated movies, or mistreating other women, even if they never went to the police.
Testifying in favor of the expanded federal law last June, Assistant Attorney General Eric Holder reassured the Senate Judiciary Committee that very few "gender-motivated hate crimes" could be prosecuted in federal court, since such prosecutions would require proof of "gender-based bias." But judging from the history of VAWA litigation, which he invoked as a model, the criteria would be elastic enough to apply to any claim of rape or abuse. And that is clearly what the advocates want. At a symposium on VAWA last May, NOW Legal Defense Fund attorney Julie Goldscheid praised the courts for recognizing, "in language that is really heartening to a women's rights advocate, that domestic violence and sexual assault are gender-motivated crimes rooted in the history of discrimination against women."
In Christine Brzonkala's suit against Virginia Polytechnic, the courts found evidence of bias in the fact that the two alleged rapists were virtual strangers to the plaintiff (which should rattle feminist activists who have denounced the notion that acquaintance rape is a lesser crime); that the attack had no motive other than rape; and that, according to Brzonkala, one of the defendants told her, "You'd better not have any fucking diseases." It is worth noting that after hearing the evidence, a Virginia grand jury refused to indict the two men, who claimed that they had consensual sex with Brzonkala–which did not keep her from being invited to the White House Conference on Hate Crimes as a spokeswoman for hate crime victims.
In other cases, federal courts have ruled that alleged acts of sexual violence by themselves justify a claim of gender motivation. In Jane Doe v. the Rev. Gerald Hartz, a 1997 case in which an Iowa woman accused her parish priest of kissing and groping her, the court specifically stated that unwanted sexual advances met the gender motivation requirement even if they were "intended to satisfy the actor's sexual desires," since they could also "be demeaning and belittling, and may reasonably be inferred to be intended to have that purpose or to relegate another to an inferior status." In other words, if a priest makes unwanted sexual advances toward a young man, his goal is merely to satisfy his lust, but if he makes unwanted sexual advances toward a young woman, his goal is to relegate her to inferior status. The suit was later thrown out on the grounds that the alleged conduct didn't rise to the level of a violent crime as required by VAWA, but the lower court's interpretation of gender bias went unchallenged.
Two federal courts have given a green light to civil rights suits under VAWA based on allegations of spousal abuse. One case is pending, while the other was settled during the appeals process. Meanwhile, courts in some of the 17 states with hate crime laws that cover gender have applied those statutes in cases of spousal assault. In 1993, a New Hampshire judge used that state's hate crime law in sentencing a man convicted of misdemeanor assault on his girlfriend, after four other women testified that he had abused them while they dated and harassed them after their breakups. There were no allegations that the defendant had ever assaulted any women with whom he was not intimately involved. Such an approach contrasts sharply with the usual analysis of "hate crimes" based on race or ethnicity, where the fact that the victim is selected at random, on the basis of group membership rather than a personal relationship, is considered indicative of bias.
Many advocates of hate crime laws are less concerned with protecting victims or even punishing offenders than with making a political point about the pervasiveness of bigotry in American life. Still, most acts classified as hate crimes probably are based at least partly on actual bigotry. In the case of gender, not only the special treatment of hate crimes but the use of the hate-crime label itself–and the analogy with crimes motivated by racial, ethnic, or anti-gay bias–is part of an ideological agenda. The goal is not only to affirm that violence against women is a matter of special concern but that it's part of a male war against women. If no one challenges such ideas in the political arena, it's likely that legislators and judges will continue to give them a seal of approval.