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Last Thursday, two gay men, ages 27 and 28, were brutally gay-bashed allegedly by a group of young people who were dining earlier that evening at La Viola. Today, Philadelphia Councilman Jim Kenney sent a letter to the U.S. Attorney’s Office asking the Department of Justice to partner with the city’s D.A. and police to investigate. Kenney asked in his letter that authorities bring federal charges, under the Federal Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act.
Sexual orientation is the third most prevalent hate crime behind race and religion — and yet once again, we have no protections for the LGBTQ community in Pennsylvania. In Pennsylvania, the laws only protect people from crimes committed because of one’s real or perceived race, color, religion, national origin or ancestry. A hate crime is an act motivated by prejudice or bias. To be a hate crime, the act must be criminal — not a mere expression of an intolerant opinion. Certain offenses become hate crimes because of what motivated the criminal act — it all lies in the intent behind the act and not the act itself.
What a lot of people don’t realize is that Pennsylvania did at one point have protections. The hate-crime law was amended in 2002 to include sexual orientation, as well as gender identity and physical or mental disability, in the ethnic-intimidation statute, but the state Supreme Court struck down the expansion in 2008 on procedural grounds and they were all removed from the protection of Pennsylvania’s hate-crime law.
In 2009, President Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act which expanded existing U.S. federal hate-crime law to apply to crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity, or disability, and dropped the prerequisite that the victim be engaging in a federally protected activity.
In January 2013 was the first time the federal hate-crimes statute was used to protect the disabled, when a woman was charged federally for her crimes against five mentally disabled individuals. Given that Pennsylvania law did not protect disability, U.S. Attorney Zane David Memeger in conjunction with the Philadelphia District Attorney’s Office indicted the woman on charges including hate crimes, kidnapping, murder in aid of racketeering, and forced human labor.
Given that there is precedence in Philadelphia for using the federal hate-crime statute when left unprotected in Pennsylvania, I see absolutely no reason why the U.S. Attorney’s Office shouldn’t step in and charge every single one of the attackers with federal crimes. All I keep thinking about is what gay people all over the Midwest, the South, small towns and rural areas are thinking if something so heinous could happen in the most LGBT-friendly city in the United States.
There are moments where you have to take a big stand in order to demonstrate that something isn’t permissible — and this is that moment. I hope the powers that be in Philadelphia agree.
Angela Giampolo is the principal of Giampolo Law Group, which specializes in LGBT law, business law, real estate law and civil rights and maintains offices in both Pennsylvania and New Jersey.