Oklahoma Hate Crimes

From Richard Ogden, Chairman of Oklahoma City's Cimarron Alliance Foundation:

The brutal hate-crime murder of 62-year-old Steven Domer last fall brought a day long series to remember Steven Domer, and to launch an effort to fight hate crimes in Oklahoma. On December 4, the community held a well-attended press conference, as well as a candlelight vigil and a prayer service. Coverage by the media was intense.

In the past two months, a group of interested people from across the state have held two meetings to discuss what to do next. In the legislature, there were several bills introduced to change the way that hate crimes are treated in Oklahoma, and to add sexual orientation to the categories of hate crimes.

While it appears that these laws are not going to get out of committee at the Legislature, the community is organizing for a longer effort of educating law-makers and the public about hate crimes, and the need for a comprehensive law with enhanced penalties.


The Issues associated with Hate Crime Legislation

There are three issues related to efforts in the Legislature surrounding Hate Crimes.

• The need for enhanced penalties. Currently, the Oklahoma Law on Hate Crimes treats the first offense as a misdemeanor. This means that the sentence, if convicted of a Hate Crime, is 90 days in jail. This amounts to a slap on the wrist, and prosecutors are more likely to ignore the hate crimes law than to use it.
• The need to include sexual orientation and gender identity as categories. The Oklahoma Hate Crime law does not include sexual orientation or gender identity as protected categories. Currently, a hate crime committed against LGBT people is not officially considered a hate crime because of this exclusion.
• The need to make reporting of hate crimes mandatory. Although the FBI collects statistics nationally on hate crimes, they are almost uniformly under reported. In Oklahoma, because LGBT people are not protected, most people do not even report hate crimes committed against them.

There are five bills dealing with Hate Crimes on the 2008 Legislative calendar.

• HB 2871 (Rep. Shelton) – a “shell bill” that creates the “Oklahoma Hate Crimes Act of 2008.” A shell bill contains no text, but is an available legislative vehicle to assemble a bill from the other proposed bills under consideration.
• HB 2913 (Rep. Morrissette) – adds gender and sexual orientation to protected categories, makes Hate Crimes a felony, and appears to create (or strengthen) the reporting requirements for hate crimes.
• HB 3262 (Rep. McAffrey) – adds “gender identity” (but not sexual orientation) to protected categories, makes Hate Crimes a felony, and directs OSBI to create a hot-line for the reporting of hate crimes.
• SB 1610 (Sen. Eason-McIntyre) – adds “sexual orientation” (but not gender identity) to the current law, and declares an “Emergency” which would make the addition effective on signing by the Governor, rather than on November 1 when most legislation takes effect.
• SB 2110 (Sen. Sparks) – changes the wording of the law from “No person shall maliciously….assault OR batter another person” to “assault AND batter another person.” This is an important distinction and actually waters down the already ineffective existing law. Assault is a legal concept that includes threats, and battery is actually physical attack on a person. Currently either assault or battery is sufficient to be charged; under this change the perpetrator would have to do both in order to be charged.

Of the bills, HB 2913 by Rep. Morrissette appears to be the most comprehensive, addressing the issue of inclusion for sexual orientation, and making it a felony; it isn’t clear if by gender, Rep. Morrissette meant to include “gender identity” or just “gender,” since gender itself is not included in the current law.

You can read each of these bills, and track their progress by clicking on the highlighted bill number. Realistically, all the bills but HB 3262 have been referred to the Rules Committee, which usually effectively kills a bill. HB 3262, introduced by Rep. McAffrey, has been referred to the Judiciary and Public Safety committee, where it faces an uncertain future.


The Road Ahead

Clearly, and somewhat as expected, the Legislature is unlikely to address the issue of Hate Crimes in this session. So we are faced with a public education campaign, and an effort to educate Legislators on the issue, so we have more of a chance in the future. We can also devise our own system to count hate crimes to show our lawmakers that this is a problem that needs addressing. And we will continue the fight against bullying in the schools, which is essentially a hate crime committed against children in our schools.

Watch for action on all these fronts in the coming months.

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GAY COMMUNITY OUTRAGED BY HATE CRIME

“The gay and lesbian community in Oklahoma is outraged by the brutal murder of Steven Domer, our thoughts and prayers as a community go out to the family and friends of Mr.Domer” said Richard Ogden, Chairman of Cimarron Alliance Foundation, a gay and lesbian advocacy organization.

62 year-old Steven Domer, a gay man, was abducted from NW 39th Street near Pennsylvania Avenue on October 26; his body, bound in duct tape and with a coat hanger twisted around his neck, was found on November 4. The self-proclaimed “general” of a white supremacist gang has been charged with the murder. Because Oklahoma’s hate crimes law does not cover sexual orientation, the murder – although clearly a brutal hate crime driven by hatred of homosexuals – is not considered a hate crime.

“For many years our community has been warning the politicians that it was just a matter of time before a crime like this would take place because of the intolerance which is tolerated or even encouraged by our state laws. Not only is there no hate crimes legislation, but the climate of intolerance created by second class citizen legislation passed against gay and lesbian families for political expediency and to promote wedge issues should not be overlooked” Ogden continued.

Seventeen states do not include protection for sexual orientation. Most states’ hate crime laws enhance the penalty for hate crimes, resulting in harsher sentences for crimes motivated by hate.

In 2006, the FBI reported 7,722 hate crimes across the US, a 7.8% increase over 2005. About half were due to racial hatred; 1,195 of the crimes - representing 15.5% - were due to bias against LGBT people. 79 of the hate crimes were reported in Oklahoma, but authorities consider that the light penalty under the state law discourages reporting.

“In 2005, there were six hate crime murders in the United States. One of them was in Oklahoma. Now, in 2007, we are again at the top of the hate crime list with the murder of Steven Domer. Cimarron Alliance Foundation intends to partner with other organizations, and work with the Legislature, to replace Oklahoma’s weak law with an enhanced penalty law that protects all minorities, and includes protection against crimes committed due to sexual orientation or gender identity,” said Ogden.

Cimarron Alliance Foundation stresses that:

• Minority organizations – including African-American, Hispanic and religious organizations – must work together to achieve a strong hate crime law in Oklahoma;
• The lawmakers and public officials, at the state and national level, need to treat hate crimes as a public safety issue. Some ultra-conservatives have treated the inclusion of LGBT citizens in hate crimes as a partisan issue. President Bush has even threatened to veto the inlusion of LGBT citizens in the Federal Hate Crimes Law. Inclusion is not a partisan issue – it is the safety of your friends, co-workers, sons, daughters, fathers and mothers that is at stake here;
• Voters should urge their state and national representatives to make hate crimes a top priority and stop this national blight.
• LGBT citizens should be aware that there are people who want to harm them by assault, including brutal murder. That a gang can exist that preys on people because of their sexual orientation, race, or religion is alarming. LGBT people need to be aware of their surroundings, and cautious about who they are alone with.

Cimarron Alliance Foundation is a 501(c) 3 educational organization dedicated to advocacy for Oklahoma’s lesbian, gay, bisexual and transgendered citizens. Its mission is “to support educational efforts that increase personal self-esteem, promote public enlightenment and advance equality for LGBT Oklahomans.”

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The “State of Mind” of the criminal, not the status of the victim, is the answer to the Oklahoman’s questions about Hate Crimes legislation.

In the very healthy dialog that is ensuing from the tragic murder of Stephen Domer, the “State of Mind” of the criminal is the key to understanding the historical justification for enhanced penalties for hate crimes. In our system of justice, we have always provided enhanced penalties for crimes based upon the criminal’s state of mind. Let me give a few examples to make this clear.

Manslaughter: taking a life because of negligent behavior. Taking a life while driving drunk is an example. The criminal did not intend to kill, but still the life of another was taken. The penalty, however, is much less than for intentional murder.

Second Degree Murder: taking a life intentionally but in the throes of extreme emotion. An example here would be if a spouse walked in and found his/her mate in bed with another, and killed one or both of them because of uncontrolled emotion. There is no premeditation in second degree murder, so our system of justice provides for a greater penalty than for manslaughter but a lesser penalty than if they had committed a cold and calculated murder. The second degree murderer, while still taking the life of another, may not have done so but for the emotional outrage which we as society condemn but yet comprehend.

First Degree Murder: taking a life for profit or other personal gain. For example, a killing motivated to obtain life insurance proceeds, or to eliminate a witness to a crime. First degree murder is intentional and planned, not based on elevated emotion, and is cold and calculating. We apply a very high penalty to this crime because of the criminal’s deliberate and selfish state of mind.

Hate Murder: taking of a life with the intent to instill fear in an entire class of people because of hatred of that class, and because the killer believes that the targeted class is worthless and of no value or consequence. . The hate-motivated murder is cold, calculating, malicious, and pre-meditated. The state of mind of the hate criminal should be judged by our society to be even more malicious than that of the cold and calculating first degree murderer. Why? Because there is no reason or motive other than hate, only a desire to instill fear, to instill terror in an entire segment of our society because the killer sees the victim as a worthless minority. The state of mind of the hate criminal should be judged by society to be the most reprehensible of all. For example, Steven Domer, a gay man, was murdered in part so that the alleged killer could earn an arm patch as a part of his Aryan Brotherhood initiation.

Whether we are dealing with a murder or an assault or vandalism, our system of criminal justice has provided enhanced penalties based upon the criminal’s state of mind for hundreds of years. We need not reinvent the wheel. .

As for the question of deterrence posed by The Oklahoman, all I can say is that society has long believed that it does indeed deter crime to enhance penalties based on the state of mind of the criminal. If we do not believe this core concept of our criminal justice system then we had better start re-writing a whole lot of laws.

An important aspect of these laws is that they only apply when a criminal act is committed. These laws do not apply to speech or expression. The right of free speech, and especially so when emanating from the pulpit, is guaranteed by the US Constitution and additionally is specifically protected in the Mathew Sheppard Act.

The real question we need to answer as society is whether we judge the state of mind of the hate criminal to be the most reprehensible of all. Crimes based on a total lack of respect for the life because the criminal believes the minority victim is worthless and for the purpose of instilling fear have been judged in the past by our world to be the worst of all crimes.

We as Americans and Oklahomans, capable of remembering and learning from history, capable of using our existing models of criminal justice, need not struggle so in determining the value and logic and necessity for Hate Crimes Legislation. We need only to do what we have done before: judge most severely those crimes motivated by hate; and do so because history proves these criminals are the most dangerous and reprehensible of all.


Richard C. Ogden
Chairperson
Cimarron Alliance Foundation