It is no secret that the LGBT community is by and large angry and justifiably very impatient at the lack of progress on LGBT issues under the Obama Administration. In trying to calm the anger over its lack of action on ENDA, Don't Ask, Don't Tell, DOMA, the UAFA, and other pending pieces of LGBT civil rights legislation, the administration has repeatedly trumpeted the Matthew Shepard and James Byrd, Jr Hate Crimes Prevention Act as proof that they care and are working on LGBT issues. Last week, the Administration managed to shoot down their own talking point and may have effectively rendered the Matthew Shepard Act toothless in protecting LGBT victims of hate bias motivated crime.
To set this up, let's back up to a story that occured back in June of this year. It is a story that is all too familiar to those in the LGBT community, the kind of story most LGBT people have either experienced or witnessed or know someone personally who has. On June 12th as 26 year old Kieran Daly walked home in Savannah, Georgia, he was attacked by two U.S. Marines who thought that the victim was winking at them. From the Augusta Chronicle:
About 3:45 a.m., a metro police officer was patrolling when he saw two men running on Congress Lane. Moments later, the officer received a call about a man at Congress and Bull streets who was lying on the ground unconscious.
The officer rushed to the intersection and found 26-year-old Kieran Daly unconscious, with friends performing emergency first aid, a report stated.
The officer caught up with the two men who were running, identified as 22-year-old Keil Joseph Cronauer and 23-year-old Christopher Charles Stanzel. Police records show both men are stationed at Marine Corps Air Station in Beaufort, S.C.
Cronauer and Stanzel told police they were being harassed by a gay man and wanted to get away from him. But witnesses painted a different picture, according to the report.
They told police before the men were seen dashing away from Johnson Square, one of them grew angry because they thought Daly was winking at them and struck Daly in the back of the head with his fist, knocking him unconscious.
Saturday night, from his bed at Memorial University Medical Center, Daly insisted he tried to convince the Marines he was not winking at them.
"The guy thought I was winking at him," Daly said. "I told him, 'I was squinting, man. ... I'm tired.'"
Daly said one of the men told him he demanded respect because he served in Iraq. And at least one hurled slurs at him as he tried to walk away.
"That's the last thing I remember is walking away," Daly said. "I remember the feeling of getting hit, but I only kind of remember it."
The two Marines were arrested and the Chatham County District Attorney in conjunction with the Department of Justice began investigating the incident as a hate crime. On Firday we discovered neither the DA or the Justice Department would file hate crime charges over the incident. Reports the Georgia Voice on Friday:
Alicia Johnson, spokesperson for the Chatham County DA’s office, which includes Savannah, said today that the two Marines will only face misdemeanor charges for allegedly punching Daly. The decision was made weeks ago, she added.
The two Marines will appear before a judge in state court on Sept. 9. The judge is expected to hear the case and render a verdict, Johnson said. The case has already been postponed twice.
After the alleged attack on June 12, LGBT activists in Savannah and Atlanta called for the FBI to investigate the incident under the federal hate crimes law.
Johnson said after the FBI, the Savannah-Chatham Metropolitan Police Department and the DA’s office reviewed Daly's medical records and conducted further investigation, they determined this case had "no merit" to be considered a hate crime.
You might ask why this wouldn't be considered a hate crime when by the defendants' own admission, they attacked the victim because they thought he was gay and coming on to them by winking at them. The justification offered by the county's DA is truly replusive:
"I can’t speak on the specifics because this is pending litigation, but for a crime to be considered a felony [which a hate crime is considered to be] there has to be proof of a sustained injury," Johnson said.
"It’s my understanding Daly suffered only a punch. Based on his medical records we could not upgrade the charge from a misdemeanor to a felony."
Ok, let's review that "only a punch" and what it did to Daly. From the Augusta Chronicle report above:
The officer rushed to the intersection and found 26-year-old Kieran Daly unconscious, with friends performing emergency first aid, a report stated.
[...]
Daly said after his friends performed cardio-pulmonary resuscitation at the scene, he was taken to Memorial University Medical Center and diagnosed with bruises to his brain. He had two seizures immediately after the attack and was expected to remain at Memorial for the next few days for observation.
Oh, he only got his head bashed, knocked unconscious, brain bruised, suffered two seizures and had to spend a few nights in the hospital. To the Chatham County DA and the Obama DOJ, this isn't a "sustained injury" sufficient to warrant action under a law they've been so busy touting.
But let's give them the benefit of the doubt for a moment and examine why the DOJ would be involved int he first place and since they were, what the actual Matthew Shepard Act has to say about such crimes.
First, Georgia is one of only FIVE states that does not have a state level hate crimes law. The state had such a law at one time, but the state's Supreme Court ruled it unconstitutional in Botts v State in 2004 as being impermissibly vague. And it was, Georgia Code §17-10-17 listed none of the bases which would be considered a hate crime enhancing the sentence only "if the trier of fact determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property of the victim as the object of the offense because of bias or prejudice." It didn't list race, ethnicity, sexual orientation, gender identity, etc as bases upon which it would be triggered and left sufficent doubt as to what in fact would be considered a hate crime in the State of Georgia.
This is where the DOJ comes in. One of the provision of the Matthew Shepard and James Byrd, Jr Hate Crimes Prevention Act was to provide assistance to state, local and tribal officials in investigating and prosecuting hate bias motivated crimes. The Act provides for sentencing enhancements for "Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B) or paragraph (3), willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person" (18 U.S.C. §249 (a)(2)(A))
Now, just to be clear on the terminology being used, the Matthew Shepard Act assigned the meaning of "bodily injury" to be the same as defined at 18 U.S.C. §1365 (h)(4) but expressly excluding "solely emotional or psychological harm to the victim." The provisions of 18 U.S.C. §1365 (h)(4) defines "bodily injury" to mean:
(A) a cut, abrasion, bruise, burn, or disfigurement;
(B) physical pain;
(C) illness;
(D) impairment of the function of a bodily member, organ, or
mental faculty; or
(E) any other injury to the body, no matter how temporary.
So we have here a classic anti-gay hate crime, a crime where the state cannot give sentencing enhancements because it does not have a hate crime statute, a perfect instance for the federal government to step in and aid in the case under the federal hate crime statute, but the DOJ declines because getting your head bashed, knocked unconscious, brain bruised, suffering two seizures from the bruising and having to spend a few nights in the hospital are not serious enough "bodily injur[ies]" to warrant federal intervention.
In 2008, there were 501 bias motivated simple assaults based on the victim's sexual orientation, representing more than 28% of all bias motivated simple assaults. The last two years I've shown that based on 2008 and 2007 numbers, hate crimes against members of the LGBT community aren't just more likely to be against the person (as opposed to their property), they are much more likely to be violent. By refusing to prosecute this case, leading to the manifest injustice of the defendents likely to serve less than a year in jail and a fine of no more than $1200.
This is exactly the kind of case the law was meant to address. While far too many people die from hate crime violence, murders constitute a very small number of the total number of hate crimes committed each year. There are far more simple and aggravated assaults, incidents of intimidation and acts of theft, burglary, arson and vandalism against property. In those cases, it was the intent of the hate crimes act to elevated such bias motivated offenses to the level of felonies and met out more serious sentences to such offenders. Instead, the two Marines in this case will, if convicted, only have misdemeanor convictions.
This is unacceptable and sets a very bad precedent for future cases. If the injuries sustained by Daly do not warrant the attention of the Federal Government, it begs the question, what misdemeanors would. If the crime were any more violent, the crime would be a felony already. The Obama DOJ has in a sense, effectively rendered the Matthew Shepard Act compeltely toothless in doing the very thing it was enacted to do. And that is something of which we ought to kick back in their faces every time in the future they try to parade the act out as proof of their support of the LGBT community.
Update [2010-8-31 20:14:26 by craigkg]: Thanks for the Rec list guys. This story needs to be heard. Let's not let the one decent accomplishment for the LGBT community under this administration so far be rendered meaningless.