Abstract

Excerpted From: Teresa Eileen Kibelstis, Preventing Violence Against Gay Men and Lesbians: Should Enhanced Penalties at Sentencing Extend to Bias Crimes Based on Victims' Sexual Orientation?, 9 Notre Dame Journal of Law, Ethics & Public Policy 309 (1995) (182 Footnotes) (Full Document)

Smithton, Pennsylvania, population 300, is a small town in western Pennsylvania where everyone knows everyone and everything about everyone. Like many small towns Smithton considers itself a closely knit community where common knowledge about each member encourages understanding and tolerance. The brutal killing of native son Paul Edward Steckman, however, shattered the assumptions Smithton residents had about community tolerance. On March 27, 1994, the forty-six year old Steckman was beaten almost beyond recognition and left to die on the street. He was one block from his mother's house, to which he had returned from New York City two years earlier to care for his ailing mother. The brutal violence of this murder explains part of Smithton's shock; but more shocking still was accused killer seventeen year old Samuel Louis Sethman's assertion that the murderous beating was motivated by Steckman's homosexual advance towards him.

Attitudes in the community toward Steckman's homosexuality had been mixed; a number of older citizens denied Steckman's homosexuality, even though Smithton's younger generation stated that he had been a known and obvious gay man. When his “differences” had become obvious, when Steckman flirted with other men at local bars, when he did not hide his sexual preference, community response varied. For some, he was still a friend with a great sense of humor; others considered him a “fag” and talked about his needing a beating.

Those attitudes about homosexuality colored perceptions about Steckman's killing. Some townspeople rationalized the murder as an extreme reaction to homosexual advances or as a result of aggression against gays being considered “manly” by teens. But while some townspeople may have thought Steckman's sexual openness had gone too far for Smithton, all agreed that Sethman's response went too far for any community, especially their own.

Smithton's experience exemplifies a large scale reexamination of attitudes about sexual orientation and violent crime. As violence motivated by bias against sexual orientation becomes more pronounced in American society, communities must respond by both punishing the crime itself and reducing the intolerant attitudes towards gay victims that cause the crime. One solution already used to respond to bias motivated violence involves enhanced penalties at sentencing for crimes motivated by bias against homosexuals. Traditional prejudices against homosexuality, however, often block the extension of statutory protection to bias based on sexual orientation; many states exclude sexual orientation in their hate crime statutes or proscribe bias conduct so broadly that sexual orientation is not mentioned directly.

This Article argues that bias crimes based on actual or perceived sexual orientation require enhanced penalties at sentencing in order to assure that gay men and lesbians receive protection under state and federal laws when they are victims of these crimes. Bias crimes by their nature create divisive social repercussions within the victim's group and the community at large; criminal acts committed against gays because of their sexual orientation reinforces intolerance of diversity. This Article therefore begins by examining anti-gay violence in the United States. Part I shows that the seriousness of these crimes is magnified by the vulnerable legal and social status of homosexual victims. These constraints marginalize gay men and lesbians in the American criminal justice system, giving homosexual victims a lesser standard of protection against violent crime than heterosexual victims.

States have recognized and addressed gay victims' marginalization by enacting statutes that enhance sentences for bias motivated crimes. Part II addresses the constitutional questions raised by these types of statutes by examining the Supreme Court's decision in Wisconsin v. Mitchell. Part III argues that if bias crimes against gay men and lesbians are a significant social problem, and statutes allowing for increased penalties for bias crimes are constitutional, bias crimes statutes should explicitly include sexual orientation as a category to be protected under these statutes. Without a specific assignment of criminal liability for intentionally selecting gay men and lesbians as victims, American criminal codes will not adequately protect homosexual victims, thereby allowing these victims' fundamental right to protection of person and property to be infringed. As enhanced sentencing statutes address the defendant's bias against the victim's status as a homosexual, these statutes would neither infringe upon states' rights to regulate homosexual behavior nor conflict with the moral teachings of the majority of religious organizations in the United States. Furthermore, by enhancing the punishment for gay bashing crimes, these laws would send a clear message that this type of bias violence will not be tolerated by our society.

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Bias crimes based on actual or perceived sexual orientation require penalty enhancements at sentencing to give gay men and lesbians equal protection from violence to their persons and property. By its very definition, society guarantees all of its members freedom from violence, and provides legal remedies for others' infringements of these rights. When our government fails to protect segments of society from bias-related crimes based on sexual orientation by failing to deter these crimes through effective punishment of discriminatory action, it fails in its essential mission.

Requiring bias crime statutes specifically to include sexual orientation to enhance penalties for bias crimes is one solution to this problem. Without this specific assignment of criminal liability, basic protections from violence of person and property are not fully guaranteed to gay men and lesbians. Because it is “[t]he first duty of the Government to afford protection to its citizens,” states need to recognize that including sexual orientation as a protected category is necessary to the protection of its citizens. Not only do these penalty enhancement statutes punish bias crimes against gays, they affirm the states' interest in eliminating bias violence. Only through forceful promotion of this interest can states ensure that their gay and lesbian citizens avoid the fate of Paul Steckman.

B.A. 1989, University of Notre Dame; M.A. 1992, Indiana University; Candidate for Juris Doctorate 1995, Notre Dame Law School; Thomas J. White Scholar 1993 - 95.