Note: Ann Noel is a former CAHRO Board Member and with the California Fair Employment and Housing Commission. The opinions expressed in this article are those of the author and not necessarily those of the Fair Employment and Housing Commission.
California and federal laws have made major advances in addressing the persistent problem of hate crimes in the last twenty years, enacting legislation to track hate crimes at both the federal and state level, enhancing penalties when crimes are motivated by bias, and training local and federal law enforcement to detect and prevent hate crimes. Yet, these heartening advances against hate crimes have not included gender-based crimes. Neither federal nor California statutes covering statistics on hate crimes include gender as one of the bases. And, the California law providing penalty enhancements for hate crimes also does not include gender.
Policy makers and legislators have traditionally given many reasons for not including gender in hate crimes statistics and penal code statutes: gender-based crimes are covered under other crimes which are already tracked, such as sexual assault and domestic violence, and thus there is no need to add them to hate crimes statistics; crimes against women are so prevalent that it would distort statistics for all other bases to cover them; and crimes against women are considered “different,”‘ because, unlike many other hate crimes, a victim often knows her perpetrator and was selected by the perpetrator for her particular characteristics.
Let me suggest several reasons why this reasoning needs to be challenged. First, saying that gender-based crimes are covered under other crimes which are already tracked by statistics gathering, such as sexual assault or domestic violence, is incorrect. Some gender-motivated crimes, such as assaults specifically targeting women which are not domestic violence or sexual, are not tracked by either federal or state statistics in any way which would give law enforcement the information they need to know how prevalent the problem is.
Second, it is true that there are vastly more gender-based crimes committed against women in our society than any other category of bias-motivated crime. Yet to ignore this category of violence, if indeed it truly fits all the criteria of bias-motivated violence merely due to staggeringly high numbers, is misguided. We need to think through, using the criteria for identifying hate crimes and scientific studies, whether the epidemic of violence against women at the domestic level and in sexual assault cases, is indicative of deep-seeded animosity by perpetrators against women and look at societal ways to overcome the epidemic.
Third, it is a profound mistake to define hate violence under any basis, especially gender, as existing only if the victim is a stranger to the perpetrator. Simply because a perpetrator knows his victim, as is always true in domestic violence and is true for the majority of sexual assaults, does not mean that the crime still does not reveal his hatred for women as a whole, hatred which is so ingrained in our culture that we cannot see it. For example, domestic violence is often viewed as an individual dispute between a man and a woman, or the pathological problem of a particular man. Yet domestic violence reveals deep historical, cultural and legal roots to subordinate women. Men who assault their wives are living up to cherished Western cultural prescriptions—aggressiveness, male dominance, and female subordination and they are using physical force as a means to enforce that dominance. Taking these crimes out of the realm of the individual and into the collective realm requires looking at how our society sanctions men’s control of women.
In California, we define a hate crime as violence or threat of violence directed against you or your property because of who you are, who people believe you are you or the people with whom you associate. Prosecutors need to prove that the bias-motivation was a substantial factor, but not the only factor, causing the crime. An analysis of the criteria police use to determine whether a crime is a hate crime shows how easily many crimes perpetrated against women could be characterized as hate crimes. Officers look for whether:
- the victim and the perpetrator are from different “groups” (the perpetrator is male, the victim is female;
- the perpetrator used any biased remarks while committing the crime (the perpetrator repeatedly called the victim a “b*ch” and/or a “c**t“);
- there were any offensive symbols, words or acts that are known to represent bias against the victim’s group (the perpetrator talked about his hatred of women; he possessed pornography of women in bondage);
- the victim is a member of a targeted group (female);
- the perpetrator has subjected the victim or victim’s group to repeat attacks of a similar nature (the perpetrator has committed repeated sexual assaults or acts of domestic violence against this victim and others);
- the incident would not have taken place if the victim and the perpetrator were of the same group (no sexual assault or domestic violence if the victim was male);
- the victim perceived the perpetrator’s actions to be motivated by bias (maybe, if she’s not in denial); and
- a substantial part of the community where the crime occurred perceive the incident to be motivated by bias (probably not, given current attitudes).
When a white skinhead with racist tattoos, membership in a racist organization and Aryan Nations literature in his apartment assaults an African American who is a stranger, we all perceive that the crime is most likely motivated by hate. Most crimes against women, often involving husbands and boyfriends, require more sophisticated analysis of what constitutes a hate crime. We need to begin a dialogue internally on this issue, rethink for ourselves what a sexual assault or an act of domestic violence reveals about a perpetrator’s attitudes toward women. Armed with a cogent analysis, we then need to take that dialogue to law enforcement and policy makers to demand change in how crimes against women are categorized and charged.
Ann Noel is co-author of Violence Against Women: Law and Litigation, a 1997 legal treatise on the federal “Violence Against Women Act” and related statutes, published by Clark, Boardman & Callahan.