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Gays and the “Hate Crimes” Folly

by Alexander Cockburn And Jeffrey St. Clair

We’re just about thirty-one years away from the great Stonewall riot, which set the tone for years of defiant gay insurgency. Stonewall was about defiance. It was a Fuck You to the forces of repression, to the forces of the state. So where’s this spirit of defiance today?

Here’s a clue. In early June, we were able to read in our national newspapers that about 60 gay employees of the C.I.A. were joined by a busload of intelligence workers from the National Security Agency for a event designed to evince gay pride. Present were top officials, including George J. Tenet, the director of central intelligence. Addressing the gay spooks was Rep Barney Frank, the noted gay rep from Massachusetts.

Taste the ironies.
The gay spooks, albeit proud, were still unidentifiable, and then returned to their tasks of planning the sabotage of the Cuban economy, the undermining of Libya and other staples of the Agency’s daily fare. How would the Stonewall rioters of the late Sixties reacted to that? Wouldn’t they have said that “liberation” should mean not only the assertion of a gay identity, but also the sloughing off of the sort of false consciousness that allows a person to work equably for a secret Agency with the blood of millions on its hands?

Gays have always had an uneasy relationship with the state and with the authorities, for sound reasons. Down the decades they’ve been hunted, entrapped, arrested, sentenced, persecuted. With increasing vigor and effect since Stonwewall they’ve fought back. But now we have the repugnant spectacle of many prominent gays and gay groups oblivious to this long history. Take the death penalty. There’s no more glaring expression of the inequities of race and class than the manner in which the death penalty is operated in our society, yet many gay rights groups have been silent on captial punishment, including the richest and biggest of them all, the Human Rights Campaign. They’re mute as the state hauls off the poor and the black to die, and save their lungs for “hate crime” laws, for longer prison terms, for more repression by the state.

Listen to Richard Hymes, of the New York City Gay and Lesbian Anti-Violence Project: “Hate crimes legislation would remove the decision making process regarding plea bargaining and reduced or dismissed sentences out of the judges’ hands because they set a benchmark of punishment for each offense which cannot be pleaded, bargained away or dismissed.” In other words, the zeal to deal with anti-gay violence now leads to advocacy of laws which threaten justice, due process and civil liberties.

Listen to how Winnie Stachelberg, of the Human Rights Campaign, borrows from the hysterical idiom of the cold war, when she proclaims that “In our multi-cultural nation, hate crimes are a form of domestic terrorism and act as atomic bombs to national unity.” And just as civil liberties and constitutional protections were trashed in the name of the crusade against Communism, the “hate crime” legislators now installing thought crimes in the American penal code.

This week the US Senate is once again debating a hate crime law, to match legislation passed by the House. The likelihood is that the whole stupid folly will die in committee, but such is not the case in New York state, where the only question is, whether the version will become law. Under the state senate bill, a convicted person could draw an extra ten years if bias was proved.

How would those Stonewall demonstrators have felt about the spectacle in Albany, where gay groups across the state are cheering on Gov. Pataki, the man who reintroduced the death penalty?

There are over two dozen gay anti-violence groups
across the country that form the NCAVP, the National Coalition of Anti-Violence Programs. Some of the work they do on behalf of crime victims is laudable. However, there are only four groups in the coalition that oppose capital punishment ? yet surely the death penalty is a issue of state-sanctioned violence. These group tally elaborate statistics about “hate crimes” and annually issue them to pump up their calls for tougher criminal laws.

There was a 1999 case in Douglas, Wyoming which is a good illustration of how some of this crime victim advocacy work can run aground. Here how the NCAVP press release reported the case: “In an apparent case of irresponsible and anti-gay police investigation and prosecution, the alleged assailant in the near-fatal beating and sexual assault of a Wyoming gay man has been undercharged and allowed to roam free in the community, according to activists familiar with the incident. In spite of the fact that he allegedly nearly killed a man in the vicious baseball bat beating, the attacker faces only simple assault charges.

As reported in the Saturday, October 16, 1999 edition of the Casper Star Tribune, Lester Shuler, of Douglas, Wyoming, suffered the beating and assault on October 9. The suspect, Jody Hoving, allegedly sexually assaulted Shuler after harassing and taunting him in a local bar and pursuing Shuler to his home where the assault and beating occurred. Shuler required 36 stitches to close head wounds received in the attack. Doctors say that the blows came within a quarter inch of being fatal. News of the attack has surfaced against the backdrop of the first phase of the murder trial of Aaron McKinney in the beating death of gay University of Wyoming student, Matthew Shepard.”

The reality was somewhat different.
Although the NCAVP release says “the attacker faces only simple assault charges” he had been charged with felony assault and has since been convicted and is facing up to ten years in prison. Facing ten years isn’t so “simple” if you’re on the receiving end. More alarmingly, the release says the attacker was “allowed to roam free in the community.” He was released on bail. Would the NCAVP would have us do away with bail or use bail for pre-trial detention? Meanwhile, these gay anti-violence groups pay little attention to the ongoing targeting, hunting down and arrest of men who deign to practice homosexuality. Yes, the gay groups seem to care little about reforming anti-sex laws and are all wrapped up in promoted more law and order.

The push for “hate crime” laws really got going in the mid-1980s, with the Anti-Defamation League one of the prime promoters. Credit for coining the term “hate crime’ apparently belongs collectively to Representatives John Conyers (D-Mich), Barbara Kennelly (D-Conn), and Mario Biaggi (D-NY). In 1985 they cosponsored a bill in the House of Representatives entitled, “Hate Crime Statistics Act.” The bill sought to require the Department of Justice to collect and publish statistics on the nature and number of crimes motivated by racial, religious, and ethnic prejudice.In 1985, 11 hate crime articles appeared in newspapers nationwide. In 1990, there were 511 stories about hate crimes, and three years later, more than 1000.

The murder of Matthew Shepard in Laramie gave a huge push to the “hate crimes” lobby. But it also gave gay opponents of this same lobby a dramatic opportunity to make their case. Bill Dobbs and Michael Peterelis of Queeerwatch opened up a telling campaign that allowed the defense attorneys for Henderson and McKinney, Shepard’s killers, to win some breathing room and to save their clients from Death Row.

“The criminal laws cover every kind of victim,” Dobbs points out, “no matter how beloved or reviled, from the white-haired grandmother that garners sympathy from all to the seediest low-life that many might say ‘deserved it’ — with gradations for intent. The real challenge is to get the law applied in such a fashion as to give justice. Twisting the law out of shape is not a cure for cases that the criminal justice system will not reckon with in an even-handed manner. In the end, changing the attitudes of police, prosecutors, and most important the public will give much better justice. Pushing for such laws is causing us to lose perspective on crime and punishment. The law and order climate that we are in demands more criminal laws, longer sentences. And the push for tougher laws — hate crime laws — helps to keep divert people from very serious issues of crimal justice like the fight against capital punishment.” Indeed. Why feed the law and order monster? The arguments that are constantly made to justify tougher laws – that a whole community is attacked – are creative but don’t hold water. “Somebody was mugged in the lobby of the building next door to me,” Dobbs continues, “You better believe that everybody living near that crime was alarmed. Why pit groups of people against each other to argue about getting into a bill when the existing criminal law is plenty tough – indeed those laws often do some real damage as death row populations grow ever greater.”

Why do prosecutors need more power?
So they can overcharge and get another undeserved and unjust pound of flesh? The politicians love hate crime bills because they let them off the hook so easily. Why not go after something that would actually give some gays in Wyoming, for example, some rights – some anti-discrimination legislation? How many cower in fear that they will lose their jobs or housing as same-sexers? In 2000, 31 years after Stonewall, there is still no state law in New York that prohibits discrimination on the basis of sexual orientation. For all the statistics about hate crimes, there is little talk of cases where the prosecutors and police and judges looked the other way – a dramatic change from fifteen years ago when it was one slap on the wrist after another.

Dobbs again.”Look at the feminist pressure to address sexual assault – men raping women. By protesting and publicizing and screaming the system responds much better. But this is not good enough for some who say that rapists target their victims based on their gender – therefore such assaults are hate crimes – therefore we need hate crime laws. This is too convoluted for me – if someone wants to make the argument that penalties for rape are not adequate, do so – the endless riffs about hate are pointless. And they don’t get to the underlying issue of sexual assault. The mantra of hate crime requires the solution of hate crime laws.”

The bitter truth is that liberals, progressive and leftists (to the extent any or all of these groups or even individuals currently exist) have been co-opted into a traditional conservative response to crime – law and order. The reflexive answer to anti-gay violence is tougher laws. So where is the radical, or even progressive analysis? Collective amnesia has wiped out a critique of the criminal justice system.

There are some sane voices.
On June 14, Carolina Cordero Dyer, a board member of the Audre Lorde Project, a people of color-gay center in New York City published an important op-ed in Newsday. “I read with concern about the ‘victory’ last Wednesday when the State Senate finally approved a hate-crimes bill virtually assuring that the measure will become law this year.” Dyer went on to write that as a Latina lesbian she is well aware that “Lesbian, gay, bisexual and transgender people of color are doubly vulnerable to hate crimes. We experience violence in our families and our communities, from our police force and in prison. Some of this violence is documented while some is invisible: young people who face routine violence in schools and foster care; homophobic violence in juvenile detention centers and prison; and police abuse of the transgendered, including unwarranted arrests and police harassment.”

Dyer then reviewed the fierce new sanctions envisaged in the various versions passed by Senate and Assembly. “There is no evidence that enhanced penalties will prevent hate crime. We can look at examples of other criminal penalties and their effect on crime. New York State has some of the harshest drug laws in the country -the Rockefeller drug laws. Adopted in 1973, these laws have resulted in a prison explosion. In 1973, when the laws were adopted, 12,500 people were behind bars. That number has climbed to more than 71,000 today. Yet, drug usage and sales have continued to rise in spite of this tough ‘message’ about the evils of drugs. Those convicted of first-degree murder in New York now face the death penalty. It is clearly documented that the death penalty has no impact on murder rates except for increasing state-sanctioned death. Yet we have adopted the death penalty because of the ‘message’ it sends to society. And there is no evidence that hate crimes have been reduced in the states and localities that have enacted laws requiring enhanced criminal penalties. Finally, supporting enhanced criminalization of hate crimes drives a wedge between the lesbian-gay-bisexual-transgender movement and social justice-prison reform movements working toward reduced reliance on incarceration to solve complicated social problems.”

Here’s another example of wedge-driving.
Some months after the Shepard murder, another town in Wyoming had a resolution before its city council for “equal treatment”. It was defeated. The most emotional moment of the night came when Ellie Simonson rose to speak on behalf of crime victims. While holding aloft a photo of her sister and her three small nieces and nephews, all of whom were murdered, Simonson said it was difficult for her to speak in favor of victims and against the resolution. “Don’t tell me people who commit crimes against people based on someone’s sexual orientation should be prosecuted to a fuller extent than the killers of my sister and her three children,” she said. “All should be prosecuted to the fullest extent.”

Years ago a great criminal court judge in Detroit – Justin Ravitz – explained the criminal justice system as America’s ‘only working railroad.’ And now many gays are toiling to make sure that the railroad runs on time, even on overtime. About half the states now have hate crime laws that include language on sexual bias. Not a word in any of those laws in any of those states will stop a gay person being attacked, not a word will reduce discrimination in our society, not a word will erode the repression against which those Stonewallers fought 31 years ago. CP

Jeffrey St. Clair is editor of CounterPunch. His new book is Killing Trayvons: an Anthology of American Violence (with JoAnn Wypijewski and Kevin Alexander Gray). He can be reached at: sitka@comcast.net. Alexander Cockburn’s Guillotined! and A Colossal Wreck are available from CounterPunch.

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