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"Hate Crimes Laws" Won't Cure Homophobia

The Matthew Shepard Case, Six Years Later

by JOANN WYPIJEWSKI

Two awful things happened in Laramie, Wyo., six years ago. First, a young man " a small, gay man " was beaten beyond recognition and left tied to a fence. It was a foul murder. In its wake came a polite murder, sober in its execution: the slaying of justice.

The bloody horror of the first assault blinded almost everyone to the sterile wrongfulness of the second. Tonight, ABC’s "20/20" will revisit the murder of Matthew Shepard, providing an occasion to consider what was neglected and to rethink the notion that anyone is safer, freer, wiser or more generous in spirit because some murders might be defined as worse than murder, some victims considered special, and some perpetrators punished more harshly " all on the basis of something as measureless as hate.

Shepard was killed in a town, like many towns, inhospitable to gay people, with no protections against sexual discrimination and only disincentives for being openly gay. Aaron McKinney and Russell Henderson, the men now serving life sentences for murdering Shepard, grew up on the milk of violence that America feeds its sons and on the language of easy slurs " "faggot," "sissy," "girlie man." They were homophobes in the way that passes for normal.

They were also broke and drunk or drugged up on the night of the murder. McKinney, bingeing on crystal meth, had not slept in a week. Henderson, impaired by drink, suggested McKinney might let up on Shepard and got slugged in the mouth. Afterward, they were headed to burgle Shepard’s house when McKinney picked a fight with two men and cracked another skull, wielding his .357 magnum like a baseball bat, just as he had against Matthew Shepard.

So was Shepard’s murder a hate crime or was it something else? "20/20" comes down on the side of something else, amplifying the meth connection, which I first reported in Harper’s in 1999, and exploring Laramie’s drug subculture, through which Shepard seems to have become acquainted with McKinney. Some gay advocates of hate crime laws have already blasted the network for raising the question. Michael Adams of Lambda Legal Defense says ABC is trying to "de-gay the murder."

Scrapping over the nature of Shepard’s victimhood is the wrong debate. Whatever his killer’s degree of homophobia, Shepard is dead. Powerless to restore him, society is obligated to ask what is owed to the living " to gay people, who have suffered ages of abuse, and also criminal defendants. Tinkering with criminal law is a backward step in countering the deep cultural realities of homophobia, racism, sexism. Prosecuting murder as a hate crime only lets the rest of us think we’re off the hook, while it tramples on justice.

Amid the drumbeat over hate, Matthew Shepard was made a holy martyr for enhanced penalties. McKinney and Henderson were made monsters. And the legal machinery of Albany County, Wyo., made itself the tool of a family’s vengeance. Wyoming doesn’t have a hate crime law, but it does have the death penalty, which the prosecution demanded for McKinney and Henderson. Matthew would have wanted it that way, his family said, adding that the prosecutors did nothing without the Shepards’ permission.

With the death penalty as a weapon and the media as an echo chamber, the prosecution extracted a plea from Henderson. He was the driver that night. He never hit Shepard, but, on McKinney’s order, he tied him to the fence. Having followed that terrible instruction, he retreated. Did he fear McKinney? Mitigating circumstances went unconsidered. The county had money to mount only one capital trial, and the prosecution gauged correctly that Henderson would be easier to break. He is serving two consecutive life terms, with no chance of parole.

McKinney, who struck Shepard 18 times and kicked him in a frenzy of violence, is serving an identical sentence. After a jury found him not guilty of premeditated murder, and with only one count left that might have brought death, the prosecution moved for a plea agreement.

"I am going to grant you life," Matthew’s father declared in court, the ultimate expression of privatized justice. Under the agreement, McKinney waived his right of appeal and consented to a gag order. ABC’s interviews assert a public claim against the Shepards’ effort to turn the story into their sole property.

It is understandable that the family would be intemperate, which is why justice has no place in the hands of a victim’s grieving relatives. What happened in the Shepard case wasn’t justice, but special treatment.

A third awful occurrence in Laramie should have drawn bright circles around the inequities of that kind of treatment. In January 1999, Henderson’s mother, Cindy Dixon, was found dead. She had been raped and struck and left in the snow to die. No powerful advocates spoke for her. She was likely to come to a bad end, people said, what with the drinking and the men, and then her son.

Nobody took the measure of hate. By the time the Dixon case was wrapped up, they weren’t even talking murder. A man pleaded guilty to manslaughter, and the same judge who sent Dixon’s son to prison forever sentenced her killer to four to nine years. He got out last year.

JOANN WYPIJEWSKI is a journalist in New York City. She wrote the chapter on Jesse Jackson and the Rainbow Coalition in Dime’s Worth of Difference.

This essay originally appeared in the Los Angeles Times.