Valerie Jenness & Kimberly D Richman. Handbook of Lesbian and Gay Studies. Editor: Diane Richardson & Steven Seidman. 2002. Sage Publication.
In 1998 a single homicide in the USA marshaled unprecedented national media attention. In Laramie, Wyoming, Matthew Shepard, a young gay man, was pistol-whipped, tied to a fence, and left to die. Shepard was not discovered until 18 hours later, and he died days later in a Colorado hospital. His assailants, Aaron McKinney and Russell Henderson, were convicted of murder with aggravating circumstances and sentenced to multiple life sentences without the possibility of parole. These convictions came after separate prosecutors argued that the defendants’ crime was motivated by homophobia; at the same time, one defense attorney argued that the crime was caused by ‘gay panic’ (namely, an alleged sexual advance by Shepard toward McKinney caused McKinney to fly into an uncontrollable rage and kill Shepard). Six months after the murder of Matthew Shepard, 39-year-old Billy Jack Gaither, a gay man, was beaten to death with an axe handle, slashed at the throat, and set afire on a pile of tires in Alabama. Again, the assailants were acquaintances of Gaither, outwardly homophobic, and claimed to have acted in response to perceived sexual advances.
Violence targeting gays and lesbians—or people presumed to be gay or lesbian—is not new nor is it anomalous. What is new, however, is that for the first time in history, cases such as those represented by the murder of Shepard and Gaither have inspired journalists, activists, politicians, educators, community representatives, and other members of the morally concerned citizenry to focus national attention on gay-bashing in the USA (Jenness and Grattet, 2001; Perry, 2001). In particular, at the end of the twentieth century and the beginning of the twenty-first century, unprecedented activist, scholarly, and policy-making attention has been devoted to understanding what Rovella (1994: A1), in the National Law Journal, called ‘the decade of hate—or at least hate crime,’ including hateful acts of violence directed at gays and lesbians. Violence born of bigotry, manifest as discrimination, and directed towards gays and lesbians is finally forcing a series of related questions. Namely, what are the parameters and epidemiology of anti-gay and lesbian violence? Why does this type of violent conduct occur? And finally, what measures have been taken to curb such violence? This chapter answers those questions. But first we argue that it is important to remember that the conduct is as old as humankind. This sets the stage for understanding how ‘gay-bashing’ has been constructed as a contemporary social problem in the USA and, to a lesser degree, elsewhere.
A History of Anti-Gay and Lesbian Violence
Violence against homosexuals and people presumed to be homosexual has been documented for as long as the lives of gay men and lesbians have been documented. For example, Boswell (1980) documented violence against gay men and lesbians by Western Europeans from the beginning of the Christian era to the fourteenth century. In the process, he revealed that intolerance toward those with same sex desire increased noticeably in the latter part of the twelfth century. The rise of urbanization and absolutist governments during this time was accompanied by an array of violence, including, most notably for our purposes here, violence directed at homosexuals and perpetrated by government and religious officials. The earliest official government action against gay men, according to Boswell (1980), was a law drafted in Jerusalem by Europeans that punished ‘sodomites’ with death by fire. Later, in the fourteenth century in France, the legal school of Orleans adopted a law requiring that male homosexual conduct be punished with castration on the first offense, dismemberment on the second offense, and burning on the third offense. In contrast, female homosexuals were punished with dismemberment for the first two offenses.
Moving forward in time, in Gay American History, which covers a period of over 400 years, from 1566 to 1966, Jonathan Katz (1976) documented a history of violence directed toward individuals because of their (real or imagined) sexual orientation, identity, or same sex behavior. Historically, such violence included castration, beatings, imprisonment, burning, choking, electrical shocks, and execution. For example, Katz documented many historical moments in which the official government sanction for sodomy or other homosexual acts or behavior was death by hanging, drowning, or some other means. These actions were accepted as legitimate and necessary responses to homosexuality or gender inappropriate behavior, commonly referred to as an ‘abomination,’ ‘crime against nature,’ ‘sin,’ and ‘perversion.’ Indeed, known or suspected homosexuals were referred to as ‘monsters,’ ‘erotopaths,’ and ‘sexual perverts.’ Again, these views and acts of violence represented official state policies and were perpetrated by representatives of the state as well as private citizens.
More recently, the National Gay and Lesbian Task Force (1991) has documented literally thousands of incidents of violence against gay men and lesbians in the USA throughout the latter part of the twentieth century. Collecting incidents of reported violence, as well as many acts of violence that have gone unreported, the National Gay and Lesbian Task Force has focused on an array of manifestations of violence against gay men and lesbians, including homicide, AIDS-related incidents, harassment and assault, conspiracy, attacks on gay and lesbian establishments, police abuse and negligence, violence on college campuses, violence by family members, violence in jails and prisons, and most frequently, anti-gay and lesbian defamation. Published reports of this violence include both qualitative and quantitative overviews of the widespread nature of violence against gays and lesbians, despite significant changes in law (Sloan and Gustavsson, 1998) and social attitudes toward homosexuality (Los Angeles Times,2000).
Documented cases of anti-gay and lesbian violence throughout history and across societies provides evidence for a claim made by Virginia Apuzzo, former Executive Director of the National Gay and Lesbian Task Force: ‘to be gay or lesbian is to live in the shadow of violence’ (cited in Comstock, 1991: 54). Clearly, from a historical and social science point of view, it is difficult to discredit this claim. It is however, useful to ask ‘who is doing what to whom, how often, and with what consequences?’ After addressing these questions, we turn to another central question ‘why does this happen?’ More specifically, ‘what is the nature of the connection between heterosexism, homophobia, and anti-gay and lesbian violence?’
A Contemporary Epidemiological Portrait of Anti-Gay and Lesbian Violence
Despite an undeniable history of violence against gays and lesbians, systematic and reliable information on the causes, manifestations, and consequences of anti-gay and lesbian violence is scant. It is only since the late 1980s that empirical work on the epidemiology of violence against gays and lesbians that is needed to address these questions has been accumulating. As a result, trends in violence against homosexuals is only beginning to be discerned, thus we are only now somewhat situated to provide an empirical portrayal of the epidemiology of anti-gay and lesbian violence. As we discuss below, this empirical portrayal derives from government reports, official state data, and self-report studies undertaken and completed by academics and activists within the gay and lesbian community.
Despite many calls for the government to monitor bias crime in the USA, including violence against gays and lesbians, it was not until the late 1980s that the federal government heeded the call of many civil rights groups and minority constituencies and began to study the nature of bias-motivated violence. In one of the first government-sponsored efforts to assess the scope of violence directed toward minorities in the USA, the US Justice Department commissioned a report on bias-motivated violence in 1987. This report found that ‘the most frequent victims of hate violence today are Blacks, Hispanics, Southeast Asians, Jews, and gays and lesbians. Homosexuals are probably the most frequent victims’ (cited in Vaid, 1995: 11).
Shortly after the release of this pathbreaking, report, the Federal Bureau of Investigation (FBI) began to collect data on crimes committed because of bias toward homosexuals as part of its larger effort to track bias-crime in the USA. Beginning in the early 1990s, the Uniform Crime Report (UCR) released annual data on the violence against people because of their sexual orientation. As ‘official data,’ these are only ‘crimes known to the police’; thus, they are necessarily underestimates and they reflect the select nature of data collection by police. Nonetheless, these data reveal three important trends in reported violence against homosexuals because of their homosexuality. First, from 1991 to 1998 bias-motivated violence directed toward both male and female homosexuals has increased. Second, from 1991 to 1998 violence based on sexual orientation is the second most frequently reported type of hate crime in the USA, with race-based violence being the most frequently reported type of bias-crime in the USA. And third, from 1991 to 1998 officially reported violence directed toward gay men is more common than violence directed toward lesbians.
Official data from state agencies confirm the patterns revealed in national data. For example, reported hate crime in California is increasing and in 1998 the California Department of Justice reported that anti-homosexual crime in California comprised the second largest category of hate crime in the state. Specifically, in 1998 almost 20 per cent of the reported hate crime in the state was based on sexual orientation, compared to 67.2 per cent of the reported hate crime in California being based on race/ ethnicity (California Department of Justice, 1999: 7). Moreover, in 1998 15.5 per cent of the reported hate crime in the state was anti-male homosexual, while only 3.1 per cent of the reported hate crime in California was anti-female homosexual crimes (California Department of Justice, 1999: 7).
In addition to government reports, various non-government sponsored studies reveal the contours of crimes against homosexuals. For example, a recent report on ‘Anti-Lesbian, Gay, Bisexual, and Trans-gender Violence in 1998’ was released in 1999 by the National Coalition of Anti-Violence Projects. Summarizing known incidents of violence that occurred throughout 1998 against lesbian, gay, bisexual, or transgender individuals in sixteen distinct cities, states, and/or regions across the USA, this report highlights the following trends: the number of actual or suspected anti-gay murders in the reporting cities, states, and regions increases 136 per cent; serious assaults (one in which the victim(s) sustained major injuries) grew 12 per cent, despite an 11 per cent decline in the number of assaults generally; the number of weapons reported in conjunction with assaults against gay, lesbian, bisexual, and transgendered individuals grew at an unprecedented rate, with the use of firearms increasing 71 per cent, the use of bats, clubs, and blunt objects increasing 46 per cent, the use of vehicles increasing 150 per cent, the use of ropes and restraints increasing 133 per cent, and the use of knives and sharp objects increasing 13 per cent. In addition, the report documented a 242 per cent increase in the number of incidents committed by hate groups; a 103 per cent increase in the number of incidents occurring at or near lesbian, gay, bisexual, or transgendered community public events, such as parades and rallies; and a deterioration in police responses to anti-gay and lesbian violence, indicated by a 155 per cent increase in instances of verbal harassment and abuse of victims by police officers and a 866 per cent increase in reports of physical abuse by police officers (National Coalition of Anti-Violence Projects, 1999). Based on these findings, the National Coalition of Anti-Violence Projects concluded, ‘acts of anti-gay violence are neither random nor chaotic. They are the predictable consequence of much more fundamental flaws in the nation’s social, cultural, and political fabric.’
Complementing the findings produced by government and activist groups, a growing body of academic studies based on self-report data suggests a number of trends. Namely, the majority of gay men and lesbians have experienced actual violence or the threat of violence because of their sexual orientation (such as having objects thrown at them and being chased, punched, hit, kicked, and/or beaten); gays and lesbians of color are at an increased risk for violent attack because of their sexual orientation and their race/ethnicity; and compared to gay men, lesbians report higher rates of verbal harassment by family members and a greater fear of anti-gay violence as well as a higher rate of victimization in non-gay identified public settings and in their homes and a lower rate of victimization in school and public gay-identified areas (Herek and Berrill, 1992). In addition, a growing body of evidence reveals that violence against gays and lesbians continues to take a variety of forms, from symbolic to fatal assaults; and they implicate a range of perpetrators, from intimates to strangers to institutions such as the state, religion, and medicine. Recent studies suggest that the typical perpetrator of anti-gay and lesbian violence is young, white, and male (Comstock, 1991; Herek and Berrill, 1992). Finally, self-report studies reveal that gays and lesbians often are unwilling to report violence directed at them because of their sexuality. For example, von Schulthess (1992) found that only 15 per cent of lesbians who had been victimized because of their sexuality reported the incident to the police; and many of the respondents reporting that harassment is an inevitable part of life as a lesbian. Comstock’s (1991) research suggests that violence against gay men and lesbians frequently goes unreported because of fear of abuse by police, fear of public disclosure, and the perception that law enforcement officials are anti-homosexual.
Finally, moving beyond these specific findings, a growing body of comparative work suggests a number of trends. First, by many accounts, violence motivated by homophobia and heterosexism represents the most frequent, visible, violent, and culturally legitimated type of ‘hate crime’ in the USA (Comstock, 1991; Herek and Berrill, 1992; National Gay and Lesbian Task Force, 1991). Second, hate-motivated violence perpetuated against gays and lesbians, or people presumed to be gay or lesbian, constitutes one of the most rapidly growing forms of hate crime in the USA (National Gay and Lesbian Task Force, 1991). Third, violence against gays and lesbians continues to take a variety of forms, from verbal harassment to institutional vandalism to murder (National Coalition of Anti-Violence Projects, 1999; National Gay and Lesbian Task Force, 1991). Fourth, documented cases of violence against gays and lesbians across societies illustrate that physical, psychological, and symbolic violence against lesbians crosses racial, ethnic, religious, nationality, and age boundaries (Herek and Berrill, 1992; Katz, 1976; National Coalition of Anti-Violence Projects, 1999; National Gay and Lesbian Task Force, 1991).
To make sense of these many empirical findings and trends requires articulating the nature of the complex connection between homophobia, heteronormativity, heterosexism, and anti-gay and lesbian violence. Thus, in the next, section we turn our attention to these concepts, as well as the processes and structures they delineate.
Explaining Anti-Gay and Lesbian Violence: Sources of Bias
The most common explanation for violence directed at gays and lesbians—as well as bisexual and transgendered people—is routinely offered by scholars, activists, and policy-makers alike who have been devoted to establishing and explaining a causal connection between heterosexism, homophobia and so-called ‘gay-bashing.’ To greater or lesser degree, the relationship between heterosexism, homophobia, and gay-bashing is implied, but often not rendered specific, in a slew of empirical studies assessing people’s beliefs about homosexuality, attitudes towards homosexuals, willingness to participate in/actual participation in discriminatory acts against gay, lesbian, bisexual, and transgendered people, and the larger sociopolitical context in which all are situated. A consideration of this literature requires a view of ‘anti-homosexuality’ that is multilayered, dynamic, and structured (for an excellent review, see O’Brien, 2001; also, see Perry, 2001).
Scholars generally agree that anti-homosexual bias can be understood to exist on three levels: the individual, which implies individual psychology; the institutional, which is condoned or perpetrated through the law or by other official means; and the structural or cultural, including societal values, moral codes, and the like (Onken, 1998). O’Brien (2001) further delineates between these levels by identifying three corresponding theoretical approaches and terms: homophobia, heteronormativity, and heterosexism. Focusing on these concepts facilitates an understanding of anti-gay and lesbian violence.
The term homophobia is used to apply to the individual—or psychological—level and is primarily conceived as a personality trait that serves specific psychological functions for the individual. According to Herek (1992), the ‘experiential function’ helps individuals make sense of and reconcile their own previous interactions with gay men or lesbians, or anticipate dealing with future interactions. For example, Herek and Berrill (1992) relates the story of a young man who did not get along with his gay boss. After this experience, the young man felt he could claim with some certainty that all of the negative stereotypes he had heard about gay men were true. The ‘social identity function’ of anti-gay or lesbian prejudice, on the other hand, allows individuals to affirm their own values, self-concepts, and sense of belonging to a particular group (Herek and Berrill, 1992). For example, one might feel the need to express homophobic sentiments in order to prove him or herself a ‘good Christian.’ Finally, homophobia may serve an ego-defense function insofar as it provides a venue through which a release for anxiety stemming from unconscious confusion or conflict regarding one’s own sexuality can occur. For example, a man who is or has been accused of being particularly effeminate may compensate or act defensively by expressing strong anti-gay prejudice.
O’Brien (2001) refers to the cultural level of anti-gay and lesbian bias as heteronormativity and argues that it can best be analysed in terms of its manifestations in discourse. Most notably, scholars of cultural/literary studies and queer theory emphasize heteronormativity as a discursive practice that pervades literature, fine arts, education, legal language, religion, and other domains of culture (Seidman, 1997). For example, despite a growth in the number of gay and lesbian characters on prime-time television, heterosexuality is routinely presented as the normal way of doing intimate, sexual relationships, with the lives of gays and lesbians representing fodder to dramatic or comedic plotlines. As a dominant discourse in western society, heteronormativity emphasizes the ‘correctness’ of heterosexuality and traditional family forms, while censuring, punishing, or rendering invisible homosexuality in all of its manifestations (Herek and Berrill, 1992; O’Brien, 2001).
Finally, O’Brien (2001) uses the term heterosexism to describe anti-homosexual bias on the structural or institutional level. Most often studied by anthropologists and sociologists, heterosexism at the level of social structure cements personal anti-homosexual bias(es) and cultural discourses in existing institutions such as law, religion, family, and the economy. Institutional heterosexism both maintains these forms of prejudice and serves as implicit permission—particularly when manifested in official or legal ways—to discriminate, chastise, and perhaps even perpetrate violence against those who deviate from conventional sexualities, identities, or practices. With regard to religion, for example, O’Brien explains:
Most contemporary religions treat homosexuality as problematic. In some cases a distinction is made between homosexual feelings and homosexual acts (e.g., Catholic Catechism, 1989). The experience of homosexual inclinations may be considered an affliction—a ‘cross to bear’—but to act on one’s homosexual feelings is considered a sin. Many religious leaders advocate celibacy for those ‘afflicted’ with homosexual tendencies. Some religious organizations sponsor intensive therapy programs intended to help the individual who is ‘suffering’ from homosexuality recover. Similar to medical institutions, religious institutions take heterosexuality for granted as the normal and desired form of sexual organization and treat homosexuality as deviant, undesirable, dysfunctional and, additionally, sinful. (2001: 3-4)
The legal arena is a particularly salient home for institutional heterosexism:
The extent to which homophobia is an institution is indicated in the decisions of law enforcement officials and judges who consider homosexuality sufficient grounds for justifying acts of prejudice, discrimination and violence. This tacit approval constitutes a form of permissible prejudice. Persons presume their prejudices to be legitimate or permissible when these prejudices are condoned by persons in positions of authority. (ibid.: 5)
Taking this threefold scheme at face value, then, we can begin to ask a complicated question: what is the connection between psychological, cultural, and structural support for anti-gay or lesbian—what O’Brien aptly calls ‘permissible prejudice’—and the actual perpetration of violence toward gays, lesbians, and other non-normative sexualities? To be blunt, individual prejudice, having been learned and reinforced at the cultural and social structural levels, can be conceived as a necessary, but insufficient precursor to the perpetration of anti-gay or lesbian violence. Upon consideration of the available data, it would be difficult, if not impossible, to conclude that the existence of homophobia, heterosexism and heteronormativity—no matter how engrained and supported by societal institutions—is, in and of itself, a causal explanation for the occurrence of anti-gay and lesbian violence. That explanation is simply too simple considering public opinion data and behavioral data simultaneously.
A recent nationwide poll by the Los Angeles Times (2000) found that 64 per cent of Americans believe that homosexuality is unacceptable. However, one would be hard-pressed to make the case that nearly two-thirds of the United States’ population are gay-bashers. The limited available data on hate crime perpetration do not support such a claim (Comstock, 1991; US Department of Justice, 1998). In fact, a recent statewide poll in California revealed that 42 per cent of respondents said they believed homosexuality is morally wrong; yet even more—54 per cent—indicated that they felt homophobia (and presumably its violent manifestations) to be morally wrong as well (Los Angeles Times, 2000).
The findings on public attitudes toward homosexuality and homophobic acts reveal a complicated relationship between heterosexist beliefs, anti-gay and lesbian attitudes, and violence directed at gays, lesbians, and other non-heterosexuals. On one hand, epidemiological evidence suggests that young, white, males are the modal category of perpetrators of violence against gays and lesbians; at the same time, young males express the most virulent homophobic beliefs (Comstock, 1991; Herek and Berrill, 1992; National Coalition of Anti-Violence Projects, 1999; O’Brien, 2001; Sloan and Gustavsson, 1998). On the other hand, however, the vast majority of young white males do not engage in physical violence directed at gays and lesbians. Stated more boldly, most homophobes do not assault gays and lesbians. Thus, the relationship between homophobic beliefs and attitudes and physical violence aimed at gays and lesbians cannot be reduced to a simple cause-and-effect statement. It is increasingly obvious and empirically verifiable that many situational, interactional, and structural variables intervene in a larger process that allows individual beliefs and ideas to translate into behavior. In this case, ideas about homosexuals only occasionally – indeed, statistically speaking, rarely—result in actual violence towards homosexuals. Accordingly, the most promising line of research on the topic is undertaken by social scientists, especially psychologists and sociologists, who continue to search for psychological, situational, interactional, and structural variables that inhibit or facilitate violence, including violence against gays and lesbians (see, for example, Herek and Berrill, 1992; Perry, 2001).
The Social Control of Anti-Gay and Lesbian Violence
Regardless of the social structures and processes that lead to violence against gays and lesbians, it is increasingly defined as an unacceptable expression of contempt for homosexuals and others who represent non-normative identities, lifestyles, and sexual behaviors. Defined by sexism, heterosexism, and at times racism, classism, anti-Semitism, and ageism, anti-gay and lesbian violence has been greeted with an array of legal and extralegal responses designed to bring attention to and curb violence directed at gays and lesbians. In the process, gay-bashing has, for the first time in history, been deemed a national social problem and, in certain jurisdictions, a bona fide hate crime (Jenness and Broad, 1997; Jenness and Grattet, 2001; Perry, 2001).
As a new century begins, even public officials and religious officials who oppose homosexuality as an identity, behavior, or lifestyle have begun to speak out in defense of homosexuals as undeserving targets of discriminatory violence. As Senator Gordon Smith (R-Oregon) argued on the US Senate floor in June of 2000 in an effort to get his fellow Republicans to favor federal legislation to protect homosexuals from violence,
I think many [religious conservatives] in the Senate are reflexively inclined to vote no. I understand that because I shared those feelings for a long, long, time. You don’t have to agree with everything the gay community is asking. I don’t, but we ought to agree on protecting them and all Americans. (Los Angeles Times, 2000b: A14)
He is not alone in expressing and promoting this sentiment.
Consistent with Senator Gordon’s (R-Oregon) pleas, there has been a growth in both extralegal and legal responses to violence motivated by prejudice and directed toward gays and lesbians. With regard to extralegal responses, in the latter part of the twentieth century a plethora of community-based activism defined anti-gay and lesbian violence as a social problem in need of remedy. Most notably, throughout the 1980s and the 1990s gay- and lesbian-sponsored anti-violence projects emerged and proliferated in the USA and abroad. As extensions of the gay and lesbian movement in the USA and abroad, these organizations document and publicize the incidence and prevalence of anti-gay and lesbian violence, establish crisis intervention and victim assistance programs, sponsor public education campaigns, and undertake surveillance efforts in the form of street patrols (Jenness and Broad, 1997). Combined, these activities comprise an ‘unprecedented level of organizing against violence’ (National Gay and Lesbian Task Force, 1991: 22) that has ensured that anti-gay and lesbian violence has ‘finally taken its place among such societal concerns as violence against women, children and ethnic and racial groups’ (Comstock, 1991: 1). As Vaid (1995: 207-8), the former Director of the National Gay and Lesbian Task Force, noted in her book on the gay and lesbian movement:
From 1982 to today, the [gay and lesbian] movement has won near-universal condemnation of gay-bashing from governmental, religious, and civil bodies. We got gay-bashing classified as a crime motivated by prejudice and hate, secured the passage of bias-penalty bills, produced studies into the causes and solutions to homophobic violence, and secured funding for a range of service programs.
To achieve these changes, according to Jenness and Broad (1997), gay- and lesbian-sponsored anti-violence projects have framed anti-gay and lesbian violence similar to the ways in which feminist-sponsored anti-violence against women campaigns in the latter part of the twentieth century framed violence against women. Namely, recent anti-gay and lesbian activism framed the problem of violence against gays and lesbians as a violent crime rather than as a sexual one; moreover, it cast hate-motivated violence directed at gays and lesbians as criminal sexual assault. However, unlike feminist activism dealing with violence against women, which has been anchored in an all-encompassing critique of patriarchy, activism concerning anti-gay and lesbian violence has ignored patriarchy and the gender relations that sustain and reflect it. Gay and lesbian activism has been explicitly preoccupied with homophobia, only implicitly concerned with institutionalized heterosexism, and not at all concerned with patriarchy (Jenness and Broad, 1994).
This critical point of departure ensured that gay and lesbian anti-violence projects in particular and the public more generally have not incorporated a gendered understanding of violence against gay men and lesbian women (Jenness and Broad, 1994). At the same time, gay and lesbian sponsored anti-violence projects have affirmed the invisibility of violence directed at lesbians of color because they are lesbians and/or women of color. As a result, the linkage between race-hate, gay-hate, and misogyny is evident (Sheffield, 1992: 389), but the centrality of race and gender in the gay and lesbian activism dealing with violence is negligible. Sheffield (1992: 395) argued that this is ‘not only a profound denial of the most pervasive form of violence in the United States, but an attempt to deny the reality of patriarchal/sexist oppression. [I]t is an attempt to have it both ways: that is, to rage against such hate-violence when the victims are males (and occasionally females) and yet protect male superiority over women.’ Distinguishing between violence directed at gay men and violence directed at lesbian women is crucial insofar as a defining characteristic of violence against lesbians is that it exists on a continuum, from exclusively anti-women to exclusively anti-gay conduct (Comstock, 1991; von Schulthess, 1992). Lesbians who experience harassment and violence often have a difficult time distinguishing whether the violence was motivated by ‘anti-woman’ or ‘anti-lesbian’ sentiment because a typical incident involves a scenario in which violence begins as anti-woman and then escalates such that it is recognizable as anti-lesbian (Comstock, 1991; von Schulthess, 1992).
Consistent with activism described above, by the end of the twentieth century jurisdictions across the USA had passed laws to enhance the penalty for crimes that manifest evidence of prejudice based on sexual orientation, presumably to deter gay-bashing in the USA (Perry, 2001). For example, in 1982 Washington State passed a law that specified:
A person is guilty of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim’s race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap. (Rev. Code Wash. 9A.36.080)
Using the language of civil rights—now extended to gays and lesbians—California law specifies that:
No person, whether or not under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or the laws of the United States because of the other person’s race, color, religion, ancestry, national origin, disability, gender, or sexual orientation, or because he or she perceives that the other person has one or more of these characteristics. (Ca Penal Code 422.7)
Consistent with these particular laws, by 1999 21 states had adopted hate crime legislation that includes provisions for ‘sexual orientation’ as a protected status (Jenness and Grattet, 2001). Moreover, many of the remaining states continue to debate the passage of similar legislation.
Following these states’ lead, in the 1990s the Federal Government passed two laws and continues to debate a third bill that recognizes violence against gays and lesbians as an important social problem in need of public resources and legal redress. First, in 1990 President Bush signed into law the Hate Crimes Statistics Act of 1990, which required the Attorney General to collect data on:
[C]rimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity, including where appropriate the crimes of murder, non-negligent manslaughter; forcible rape; aggravated assault, simple assault, intimidation; arson; and destruction, damage or vandalism of property. (Public Law 101-275)
As a data collection law, the Hate Crimes Statistics Act merely requires the Attorney General to gather and make available to the public data on bias-motivated crime in order to generate the empirical data necessary to develop more effective policy by identifying and counting bias-motivated crimes, measuring trends, fashioning effective responses, designing prevention strategies, and developing sensitivity to the particular needs of victims of hate crimes, including those victimized because they are or are imagined to be homosexual.
Second, in 1994, Congress passed the Hate Crimes Sentencing Enhancement Act. This law identifies eight predicate crimes – murder; non-negligent manslaughter; forcible rape; aggravated assault; simple assault; intimidation; arson; and destruction, damage, or vandalism of property—for which judges are allowed to enhance penalties of ‘not less than three offense levels for offenses that finder of fact at trial determines beyond a reasonable doubt are hate crimes’ (Public Law 103-322). For the purposes of this law, hate crime is defined as criminal conduct wherein ‘the defendant intentionally selected any victim or property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person’ (Public Law 103-322). Although broad in form, this law is somewhat narrow in terms of coverage. It addresses only those hate crimes that take place on federal lands and properties.
Finally, the US Senate recently passed the The Hate Crimes Prevention Act. If signed into law by President Bush, the Hate Crimes Prevention Act, would:
[A]mend the Federal criminal code to set penalties for persons who, whether or not acting under the color of law, willfully cause bodily injury to any person or, through the use of fire, firearm, or explosive device, attempt to cause such injury, because of the actual or perceived: (1) race, color, religion, or national origin of any person; and (2) religion, gender, sexual orientation, or disability of any person, where in connection with the offense, the defendant or the victim travels in interstate or foreign commerce, uses a facility or instrumentality of interstate or foreign commerce, or engages in any activity affecting interstate or foreign commerce, or where the offense is in or affects interstate or foreign commerce (S. 1529).
Despite the fact that these federal legislative efforts are limited—the Hate Crimes Statistics Act does not mandate punishment for offenders of anti-gay and lesbian violence, the Hate Crime Penalty Enhancement Act only covers a limited and minority set of circumstances in which anti-gay and lesbian violence occurs, and the Hate Crimes Prevention Act is not yet law—the inclusion of ‘sexual orientation’ in each piece of legislation proved controversial. To quote Fernandez (1991: 272), proposals to include a provision for sexual orientation in the Hate Crimes Statistics Act ‘prompted an assault on the bill by conservatives in the House and Senate.’ Senator Jesse Helms (R-North Carolina), for example, opposed including sexual orientation in the bill and claimed that Congress was being ‘hoodwinked’ into passing the ‘flagship of the homosexual, lesbian legislative agenda’ (Congressional Record, 1990: 1076). Helms (R-North Carolina) argued:
[W]here do you think the idea of legislation to require the collection of statistics on so-called hate crimes originated? If this is such a wonderful crime fighting tool, it sure must have originated with a group known for its tough stance on crime, right? Wrong. This idea was dreamed up by the National Gay and Lesbian Task Force. That is a matter of record. [I]t is clear that the militant homosexuals have been building up the numbers of complaints—not, let me emphasize, of criminal offenses or charges. They have been building up numbers of complaints to bolster their case that this type of legislation is necessary. [T]he evidence is clear, Mr. President. Studying hate crimes against homosexuals is a crucial first step toward achieving homosexual rights and legitimacy in American society. This Senator cannot, and will not, be party to any legislation which fuels the homosexual movement. (Congressional Record, 1990: 1076)
However, this type of opposition was ultimately overcome as representatives of the gay and lesbian community successfully framed violence against gays and lesbians as a crime and argued for the appropriateness of including the provision in federal hate crime law (Jenness, 1999; Jenness and Broad, 1997). As Jenness (1999: 566) concluded after examining all of the congressional hearings and debates leading up to the passage of federal hate crime laws,
Shortly after federal hate crime law was envisioned, proposals were made by outsider claims-makers, most notably social movement representatives [from the gay and lesbian movement], to further differentiate hate crime victims by adding ‘sexual orientation’ to the list of provisions in federal hate crime law. Through direct and sustained testimony, [gay and lesbian] SMO representatives were able to bestow empirical credibility upon the violence connected with this provision (i.e., antigay violence). In addition, they successfully engaged in discursive tactics that rendered the meaning of sexual orientation more similar to than dissimilar from the meanings already attached to race, religion, and ethnicity. By successfully engaging in these linking strategies of persuasion, [gay and lesbian] SMOs proved crucial to the expansion of hate crime law to cover sexual orientation. In other words, the addition of sexual orientation was contingent upon the presence and viability of direct, sustained social movement mobilization coupled with particular discursive moves that prove decisive in social problems talk.
Combined, state and federal laws have, in effect, created a new category of criminal conduct—anti-gay and lesbian violence. In so doing, they reflect and bring newfound attention to the age-old problem of gay-bashing. The consequence of legal reform being brought to bear on the problem of gay-bashing in the USA is perhaps best revealed in a 1988 case involving the beating to death of an Asian-American gay man. In the process of adjudicating this case, a Broward County [Florida] circuit judge jokingly asked the prosecuting attorney, ‘That’s a crime now, to beat up a homosexual?’ The prosecutor answered, ‘Yes sir. And it’s also a crime to kill them.’ The judge replied, ‘Times have really changed’ (Hentoff, 1990: n.p.).
As the twentieth-first century begins, heterosexism and homophobia were alive and well and gay-bashing continues to occur. But, unlike previous eras, violence against gays and lesbians is increasingly greeted with condemnation. Social movement mobilization, legislative reform, judicial decision-making, and law enforcement practices in the USA have merged to reconstruct gay-bashing as criminal conduct (Jenness and Grattet, 2001).