Gay Rights

Actually, you can in some states, if you are hitting them because of sexual orientation.

Section 4704.a.1.B limits the definition of a hate crime to a crime that "constitutes a felony under the State, local, or tribal laws."  In Virginia, where I live, the virginia code (18.2-56) defines assault and battery as a misdemeanor unless the attacker "intentionally selects the person against whom an assault and battery resulting in bodily injury is committed because of his race, religious conviction, color or national origin."

Put more simply, you can beat someone here because of sexual orientation and the act is not covered by the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act.  Beat them because of religion, however, and the act applies.  

What was that the religious right was saying about "special rights" again?

Wait a second. What is this? The federal definition of a hate crime is a crime that "constitutes a felony under the State, local, or tribal laws." And in Virginia the state code defines assault and battery as a misdemeanor rather than a felony?

Is that true? And in all cases?

Is there no degree of severity that goes beyond what is recognized as assault and battery under state law? It's hard to believe, even in a state like Va, that what is recognized as felonious assault and battery in other states can be written off as a minor offense.

This needs to be looked into more...

Assault and battery is a misdemeanor here in most cases.  The exceptions include the ones I mentioned above and this one: " if any person commits an assault or an assault and battery against another knowing or having reason to know that such other person is a judge, a law-enforcement officer..., a correctional officer..., a person employed by the Department of Corrections directly involved in the care, treatment or supervision of inmates in the custody of the Department, a firefighter..., or a volunteer firefighter or lifesaving or rescue squad member who is a member of a bona fide volunteer fire department or volunteer rescue or emergency medical squad..., engaged in the performance of his public duties, such person is guilty of a Class 6 felony."  (Side note: sodomy is also a class six felony under the [probably unenforceable due to Lawrence] Virginia code section 18.2-361, "Crimes against nature".)

Assault and battery becomes the felony of "aggravated malicious wounding" here under 18.2-51.2 if the perpetrator "maliciously shoots, stabs, cuts or wounds any other person, or by any means causes bodily injury, with the intent to maim, disfigure, disable or kill" and "the victim is thereby severely injured and is caused to suffer permanent and significant physical impairment."

Earlier this year, a couple of young adults surrounded two students at my college and beat one, shouting anti-gay epithets. When he took out his cell phone to call for help, the took it from him and destroyed it. This act was neither a hate crime (despite his having been chosen on the basis of perceived sexual orientation) nor a felony here, and the perpetrators have not been caught.

I note that everything that I say about Virginia law can be confirmed by a simple reading of the relevant parts of the Virginia code. The code is available in its entirety on line at legis.state.va.us.

Many other state governments make their code available on line for free as well. Finding out what the law is in your state is sometimes just a simple matter of reading it. There are bits in some laws, I grant, where the text is cross-referenced all over the place and the "not" three levels of indenting above counteracts the "not" in the paragraph you are reading, but the criminal code is usually pretty simple.

Thanks, Patrick, for posting this.

When you say that "sodomy is also a class six felony under the [probably unenforceable due to Lawrence] Virginia code section 18.2-361," I can assure you that it IS TOTALLY UNENFORCEABLE. That part of the code needs to be updated to strike the prohibition against sodomy as was mandated by the Supreme Court in Lawrence v Texas for ALL states. 

In Virginia then, I guess you just have to butch it up if you are assaulted and battered, using your own best defense, fighting back with your hands and fists. Pulling hair seems ok. As is scratching, biting and kicking. Assault & Battery sounds like it refers to what is commonly known as a cat fight. Yeowwwrrllll!!!

Apparently, it's not until a gun, knife or other weapon makes an appearance -- along with intent -- before an assault rises to the level of a felony. I wonder how this plays out in real life. What a convenient loop hole for getting around the charge of a federal hate crime: "yeah, officer. I beat the fuck outta that queer. but I only used my fists on the little sissy. Faggot shouldn't oughtta be prancin around my town like that!"

I wonder if there is any effort under way in Virginia to enact a state-level hate-crime bill? States can make their laws more expansive - but not more restrictive - than the federal law, in terms of who is protected. Seems like that might be worth pursuing in states like Virginia where there are questions about how the hate-crimes bill will be enforced.   

Actually, Patrick, that's only the case under STATE law.  The federal law - which included sexual orientation under the Violent Crime Control and Law Enforcement Act of 1994 and added gender identity under the Matthew Shepard (etc) Act - applies regardless of whether the state has a similar statute protecting GLBT people.  The entire reason for passing the laws is because many states won't protect people on the basis of their actual or perceived queerness. For that matter, Virginia does not protect against crimes on the basis of sex, but those crimes have been prosecuted by the federal government for more than a decade under the VCCLEA, as well as various incarnations of the Violence Against Women Act.  The purpose of passing federal laws is frequently to fill in gaps the states have not addressed and/or to ensure that even the scary red states give some basic protections to people.

Think of it like federal nondiscrimination laws.  Not all states cover all of the areas protected by Title VII, but Title VII still applies within those states; it just means that the person brings a claim in federal court instead of in state court.  Many states have laws that go well above and beyond the protections of Title VII and have included GLBT people for decades; when that law is better, claims are brought under state law.

The law also does NOT apply only to felonies.  It applies to all "crimes of violence" as defined under 18 U.S.C. 16 et.seq., which defines a "crime of violence" as: "a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."  A misdemeanor that fits prong (a) would be subject to this law as well.

EXCELLENT!!! Thank you Kasey D.

Assuming you are a member of the legal profession, which is all too often vilified for the number of Shysters in your ranks, you are obviously one of the good ones! Thanks for clearing things up for us know-nothing plebes out here who could have wasted a lot of time and confused each other beyond repair if you hadn't spoken up. 

Thanks again!

@Kasey, re "The law also does NOT apply only to felonies".  

The text of the new law is available on Thomas as part of H.R.2647. Section 4704.a.1 of it reads:

4704.a.I:  IN GENERAL.— At the request of a State, local, or tribal law enforcement agency, the Attorney General may provide technical, forensic, prosecutorial, or any other form of assistance in the criminal investigation or prosecution of any crime that —

4704.a.1.A:  constitutes a crime of violence;

4704.a.1.B: constitutes a felony under the State, local, or tribal laws; and

4704.a.1.C: is motivated by prejudice based on the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim, or is a violation of the State, local, or tribal hate crime laws.

This section is the meat of the bill, the part that provides enhanced investigation. Given the 'and' at the end of 4704.a.1.B, it very unambiguously requires a crime to be a felony under State (or local or tribal) law before it qualifies for investigation or prosecution support.

If you find some section in another part of it that contradicts it, I'd love to hear about it.

I understand that the point of going after changes to Federal laws is to hurry progress in recalcitrant states like mine. That doesn't change the text of the law that has passed.

Like I said, the text is quite clear.

@Al, re "I can assure you that it IS TOTALLY UNENFORCEABLE. That part of the code needs to be updated to strike the prohibition against sodomy as was mandated by the Supreme Court in Lawrence v Texas for ALL states." 

Al, the Lawrence case invalidated a Texas statute, and, in so doing, established a patter of reasoning that would apply to similar statues. Part of the analysis in Lawrence revolved around the fact that the Texas law at issue specifically criminalized /homosexual/ sodomy, establishing disparate treatment for the same act when done between same-sex versus opposite-sex partners. Since the "crimes against nature" law here in Virginia applies equally to all people who engage in oral or anal sex, a different analysis would have to be applied to invalidate the Virginia statute. Legal scholars think that the courts would likely accept an argument revised for general, as opposed to homosexual-specific, sodomy laws, but that is not certain. Hence my "probably."

Regardless, the Virginia anti-sodomy statute remains on the books and is used to harass people. A friend who does social services work tells a story about helping a queer friend through the adoption process — single gays and lesbians can adopt here, but their partners remain legal strangers to the adopted children — and having one agency explain its refusal to help her client by faxing a copy of the Virginia anti-sodomy statute.

In addition to such harassment, it is possible to be arrested for violation of such laws, even if a /conviction/ is extremely unlikely. Nelson Keith Sloan of North Carolina found this out last year when he was arrested for violating N.C.'s anti-sodomy law.

Theyre already revolting and yes...Bigots ARE revolting indeed but still...These religious whackos are finally comming out of their satanic closet by announcing the manhattan declaration.

Indeed.

As do I miss clarke...As do I.