Gender Symposium: "On The Basis of Sex": Recognizing gender-based bias crimes.

Steven Bennett Weisburd, Sidney Sussex College, University of Cambridge (Candidate for LL.M., 1994); Stanford Law School (J.D., 1992); University of California, Los Angeles (B.A., 1988). Mr. Weisburd is an associate at Munger, Tolles & Olson in Los Angeles.

Brian Levin, Visiting Scholar, Stanford Law School; Stanford Law School (J.D., 1992); University of Pennsylvania (B.A., 1989). Mr. Levin is Legal Director of the Center for the Study of Ethnic & Racial Violence and an associate at Irell & Manella in Newport Beach, California. He has published numerous articles and has assisted government agencies and civil rights groups in formulating a response to bias violence. He is also a member of a number of state and federal task forces concerning bias violence.

SUMMARY:
... -- Chief Justice William Rehnquist (question at oral argument in Wisconsin v. Mitchell regarding counsel's argument that Wisconsin's bias crime law was under-inclusive because it failed to include gender). ... Advocating the interchangeability model, Professor McDevitt of Northeastern University has argued that only stranger rape should be included as a gender-based bias crime, excluding date or acquaintance rape and all domestic violence because of the lack of victim interchangeability. ... If that offender would only assault that particular gay man or other gay men he knows and would not go and search out other unknown gay men to "bash," that does not prevent his ultimate violent victimization of the known neighborhood gay man from being characterized as a bias crime. ... Likewise, the preexisting relationship between the victim and perpetrator of a date rape or sexual battery should not preclude characterization of that victimization as a bias crime. ... But the question for bias crime purposes is whether there is also a significant group component. While rape may be sexually motivated in part, it is also motivated in significant part by prejudice or bias against the victim's gender. ... In states that recognize a gender category, courts have just begun to recognize that domestic violence can constitute a type of bias crime under certain circumstances. ...

TEXT:
[*21] "Well, maybe the Wisconsin legislature thought that there weren't any misogynists in Wisconsin."

-- Chief Justice William Rehnquist (question at oral argument in Wisconsin v. Mitchell regarding counsel's argument that Wisconsin's bias crime law was under-inclusive because it failed to include gender). n1

"Until women as a class have the same protection offered others who are the object of irrational, hate-motivated abuse and assault, we as a society should feel humiliated and ashamed."

-- Illinois Attorney General Roland Burris (testifying before the Senate Judiciary Committee on the Violence Against Women Act). n2

Over the past few years, the Supreme Court has opened the door to most bias crime statutes. In R.A.V. v. City of St. Paul n3 and Wisconsin v. Mitchell, n4 the Court made clear that bias crime laws survive constitutional scrutiny so long as they do not constitute viewpoint-based speech prohibitions and do not merely punish "abstract beliefs." One of the most controversial and disputed issues lingering in the wake of this Supreme Court action is whether "gender" or "sex" n5 should be included as an enumerated category in bias crime laws. The majority of states presently have some type of generally applicable bias crime law; still, less than half of those states include gender or sex as an [*22] enumerated category. This begs the normative question: should the law recognize a distinct category of offenses when women or men are targeted as victims of violence or other crime on the basis of gender-based prejudice?

This essay explores the legitimacy and desirability of a distinct category of gender-based bias crimes, from both a theoretical and a practical perspective. Comparing gender to the other typically enumerated categories (i.e., race, religion, ethnicity, national origin, and sexual orientation), we ask: what are the defining characteristics of bias crimes generally, and do gender-motivated crimes fit the mold? The inclusion of a gender category in bias crime laws raises a host of complex questions. For example, because rape is committed predominantly by men against women, does that necessarily mean that all rape is gender-motivated? And when a man batters his wife or girlfriend but presents no immediate physical threat to any other woman, does he nevertheless commit a gender-motivated offense against women as a group? We discuss the purposes of bias crimes statutes, and analyze whether those purposes would be served by recognition of a gender category.

Part I of this essay describes the defining characteristics of bias crimes and provides an overview of existing bias crime laws, detailing the purposes underlying those statutes. Part II discusses the problem of gender-related crime, with a particular focus on the pervasive epidemic of gender-related crimes of violence. Part III then analyzes whether these gender-related crimes fit within the doctrinal framework of bias crime laws. We conclude that legislatures should recognize some form of gender-based bias crime category. We then address various practical and policy concerns. Finally, we offer a limited but effective doctrinal construction -- a definition of gender-based bias crimes that furthers the goals of bias crime laws while quelling many of the concerns and criticisms voiced by those who oppose recognition of a gender category.

I. CHARACTERISTICS OF BIAS CRIMES

Since 1979, state and federal legislatures have enacted bias crime statutes throughout the United States. Generally defined, a "bias crime" is an offense involving the intentional selection of a victim based on the offender's bias or prejudice relating to an actual or perceived status characteristic of the victim. The most frequently enumerated categories of protected status are race, national origin, religion, and sexual orientation.

In recent years, bias crime statutes have moved to the forefront of the legislative agenda. On the federal level, the Federal Hate Crimes Statistics Act in 1990 directed the Attorney General to collect data on bias crimes involving the most typically enumerated categories. The most recent figures released pursuant to the Act revealed that 8,075 bias crimes were reported in 1992; the Center for the Study of Ethnic & Racial Violence, however, estimates the true number of bias crimes to be approximately 37,000, or one every fourteen minutes. n6 The Hate Crime Sentencing Enhancement Act currently before Congress increases penalties for federal offenses when a victim is intentionally selected based on status. n7 In addition, the pending Violence Against Women Act labels certain violent acts against women as crime motivated by gender bias; the Act specifically recognizes a federal cause of action in tort for gender-motivated deprivations of civil rights. n8

On the state level, about 47 states (and the District of Columbia) have some type of "bias crime" statute. The statutes vary both in form and breadth. Approximately twenty states have adopted statutes that enhance penalties for underlying offenses when the offending conduct is motivated by bias. For example, Wisconsin's penalty enhancement statute increases sentences imposed for crimes in which an offender intentionally selects a victim on the basis of race, religion, national origin, or sexual orientation. n9 Nearly two dozen states establish bias crimes as distinct offenses. Bias intimidation statutes, such as California Penal Code § 422.6, create a separate chargeable offense rather than enhancing the sentence meted out for an existing offense. Typical for statutes of its type, California's intimidation statute punishes the interference with an individual's civil rights through intimidation by force or threat because of status. About 31 states have followed the model bias crime statute drafted by the Anti-Defamation League (ADL) in 1979. The ADL model statute provides:

[*23] Intimidation:

A. A person commits a crime of intimidation if, by reason of the actual or perceived race, color, religion, national origin or sexual orientation of another individual or group of individuals, he violates Section ___ of the Penal Code (insert code provision for criminal trespass, criminal mischief, harassment, menacing, assault and/or any other appropriate statutorily proscribed criminal conduct).
B. Intimidation is a ___ misdemeanor/felony (the degree of criminal liability should be made contingent upon the severity of the injury incurred or property lost or damaged). n10

Although critics of bias crime legislation initially voiced a number of federal constitutional concerns, the Supreme Court has recently clarified that most bias crime statutes pass constitutional muster. The Supreme Court concluded in Wisconsin v. Mitchell, supra, that bias crime penalty enhancements legitimately address a more harmful type of conduct that results from a particularly depraved motive, rather than punishing a type of expression protected by the First Amendment. The decision clarified the constitutionality of most "hate crime" laws, which was left in doubt after the Court struck down a law that criminalized hateful symbolic expression. In R.A.V. v. St. Paul, supra, the Court invalidated on First Amendment grounds a city ordinance that punished offenders for displaying certain hate symbols. The case involved a teenage skinhead who burned a cross on the lawn of an African-American family. The decision maintained that while the State may punish hostile crossburnings and vandalisms, such punishment may not be based on the idea expressed, but instead must be part of a general, content-neutral prohibition of such action.

THE DEFINING CHARACTERISTICS OF BIAS CRIMES

Bias crimes are a criminologically distinct category of offenses. The premise underlying bias crime statutes is that criminal activity is more heinous and invidious when offenders select their victims based on the victim's membership in a particular status category with the effect of establishing and enforcing a social hierarchy that places the victim, and the entire group to which that victim belongs, in a subordinated class. While the State may have a legitimate interest in punishing assault, for example, bias crime statutes address the added antisocial component inherent in the crime when the offender's choice of assault victim is motivated by bias.

While some bias offenders openly admit their bias motivation, the determination whether criminal conduct is motivated by bias can be elusive. In the tougher cases, the inquiry generally involves circumstantial evidence analyzed under the totality of the circumstances. The FBI provides the following guidelines to assist in determining whether a crime is a bias crime: use of bias symbols; a series of related incidents; offender and victim belong to different groups; and intergroup animosity. n11

Although the FBI's guidelines are useful, a more complete set of characteristics help define when particular criminal conduct constitutes a "bias crime." Bias crimes are characterized by: a generally high level of violence; the terroristic impact they inflict on victims and their communities; offenders motivated by a desire for power and domination over their victims and the groups to which the victims belong; random victimizations perpetrated by strangers; heightened psychological trauma to the victims; serial nature of the attacks; and the particularly invidious effect these crimes have on the entire community.

Heightened Violence

Bias crimes are more violent than non-bias motivated offenses. At a minimum, they are four times more likely to involve assaultive behavior than are crimes generally. n12 Moreover, bias-motivated assaults are disproportionately violent in comparison to non-bias assaults, twice as likely to involve injury to the victim and four times as likely to require hospitalization. n13 Often, bias crime victims are not merely beaten, but are also severely tortured. Consider, for example, the gay twenty-nine year old Puerto Rican man in Queens, New York who was hammered in the face and head before being fatally stabbed in the back; n14 the Chinese-American man in North Carolina who was beaten to death with the butt of a gun and a broken bottle because the two white men who killed him did not like "orientals;" n15 the African-American woman in Wheaton, Maryland who was chased by a young white man who stripped her from the waist up, and doused her with lighter fluid in an attempt to set her ablaze; n16 or the lesbian in Oakland, California who was brutally raped and repeatedly slashed with a knife by a neighbor who considered himself a "dyke-buster" intent on punishing her for her "infidelity to men." n17 The extreme cruelty and severe depravity of bias crime attacks is commonly evidenced by multiple stab wounds, skull fractures, mutilations and dismemberments.

[*24] As compared with other types of criminal victimizations, violence is the primary goal in bias-motivated crimes rather than merely a tool to achieve compliance. While one may be able to avoid injury during a robbery by being compliant and can often avoid being robbed in the first place by carefully securing one's items, keeping a purse close to one's body, and minimizing displays of cash and jewelry, bias crime victims can do very little. The victimization is due to the very identity of the victim, and his or her perceived membership in a particular class of individuals, typically with immutable status characteristics: African-Americans, Jews, gay men and lesbians, individuals of Japanese ancestry. As the FBI recognizes, a bias crime victim has been "picked out of a crowd or group of individuals and victimized for no reason other than his race, religion, ethnicity, or sexual orientation. There is nothing this person can do; indeed, there is nothing this person ought to do to change his or her race, religion, ethnicity, or sexual orientation. And yet, it is because of these very qualities of the person that he or she was victimized." n18

Terroristic Effect

In addition to ravaging the individual victim, bias crimes instill a broad-based fear among all members of the victim's group. As Chief Justice Rehnquist recently recognized while upholding the bias crime law in Wisconsin v. Mitchell, states punish bias-motivated conduct because it creates "greater individual and societal harm" than non bias-motivated crime. n19 Along these lines, Professor James Weinstein has written that bias crimes "can have a powerful in terrorem effect, particularly for members of minority groups who historically have been, or currently are, victims of racist violence." n20 Professor Weinstein listed some illustrative examples:

Vandalism of a fishing boat takes on a particularly sinister significance for both the boat owner and the entire Vietnamese immigrant community when it is discovered that the boat was damaged not by an undirected act of juvenile delinquency but as part of a racist campaign by white fishermen to stop these immigrants from plying their trade. Similarly, if a man is severely injured during a barroom brawl, the fact that he was beaten not because he was a Dodger fan but because he was gay has an impact, both on him and on other gays, far beyond the physical injury. In both cases the violence, in addition to inflicting physical injury, constitutes a threat of more violence to minority group members. n21

In fact, bias crimes fit the standard definition of terrorism promulgated by the FBI: "the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof in the furtherance of political or social objectives." n22

The type of angst induced by bias crimes is particularly degrading and ubiquitous. Victims of bias-motivated crime report that the terroristic quality of the criminal attacks leads to dramatic changes in their attitudes and lifestyles. As the National Institute Against Prejudice & Violence (NIAP&V) reports in their study of ethnoviolence: "Many victims fear for their safety and for their family's safety. Most of them report changes in their lifestyle -- where they walk, how they answer the phone, reactions to strangers, suspicion of coworkers, and the like. Fear can take on paranoid qualities and disrupt totally the lives of some victims." n23

Even a seemingly minor offense sends out a powerful, dehumanizing message that group members deserve violent discriminatory treatment, that they are unwelcome members of society, and that they are not entitled to "equal protection under the law." Bias crimes establish that any member of a targeted group participating in daily social interaction faces the threat of a random violent victimization merely because of his or her identity. For instance, the first national study focusing exclusively on violence based on sexual orientation, conducted by the National Gay and Lesbian Task Force, revealed that 83% of the gay men and lesbians surveyed "believed that they might be victimized in the future," 62% said that they "feared for their safety," and 45% reported "having modified their behavior to reduce the risk of attack." n24 Similarly, the NIAP&V conducted a comprehensive national victimization survey and found that victims of ethnoviolence experience more defensive behavioral changes than other abuse victims. n25

If left unrecognized and unpunished, offenders succeed in imposing their twisted social hierarchy on the targeted community. An unconcerned and undirected societal response to bias crimes lends a type of silent, implicit support to bias offenders, leading them to believe that their crimes are tolerable and, at least to a certain degree, socially acceptable. Terroristic fear and intimidation are powerful and effective coercive tools used by bias crime offenders to deprive group members of their civil rights. [*25] Societal failure to disarm these weapons lends them even graver force.

Offenders Motivated by Desire for Power and Domination

Bias crime offenders typically do not target their victims for tangible gains. Investigators commonly note the lack of apparent motive for bias attacks, such as battery without robbery. n26 The basis for the attack is something intangible: the sense of superiority and dominance that bias offenders attain from the total violation of a member of a disfavored status group through violence. Bias offenders target those individuals they regard as weak, vulnerable, or deserving of punishment. They then dehumanize their victims by stripping them of their individual identities and treating them as a stereotype, a projected image of the attackers' prejudice. n27

In many cases, offenders use bias-motivated violence as a means to vent a sense of stress and frustration about their own lives. Individual failures and frustrations actually attributable to the complexities and vagaries of modern life are often projected onto bias crime victims whom offenders somehow perceive as responsible parties. In fact, bias crime offenders often view themselves as the victims -- victimized by the very groups they terrorize.

Recent studies indicate that the vast majority of bias offenders are not hard-core hate mongers. For instance, a 1993 Northeastern University study concluded that most offenders are young males who commit bias crimes merely for excitement as part of a social activity. n28 The next most common type of perpetrator seeks revenge against a group for some perceived transgression or unfair benefit. The least common, but most violent offender, is the hard-core bigot who is deeply immersed in the ideology of hate. Linking all of these offenders, however, is the personal validation and sense of power and domination that they receive from brutalizing those they perceive as worthy of degradation.

Vulnerability of Victims Due to Random Attacks, Typically by Multiple Strangers

Most bias offenders are strangers and the bias attacks typically appear entirely random. Because of this phenomenon, victims of bias crimes are in a position of constant vulnerability. One study of bias crimes in Boston, Massachusetts reported that:

approximately 85 percent of all hate crimes involved offenders whose identity was unknown to their victims. In a few cases, the offenders remained unidentified and so might have been an acquaintance, but the vast majority definitely attacked total strangers. By contrast, the National Crime Survey, a national study of crime victims, reports that 61 percent of all crimes of violence are committed by strangers. n29

Similarly, New York City statistics reveal that 89% of bias crimes are committed by strangers as compared to 65% for non-bias crimes. n30

In addition, bias crimes typically involve multiple assailants acting in concert, most commonly on a single victim. Group attacks on unknown individuals allow offenders a means to attack with limited risk of physical harm to any particular attacker, while enhancing the impact of the violation on the victim. The attack becomes an expression of group consensus. The group component may leave the victim with a sense that this expression of violent discrimination represents a significant segment of the entire community rather than the depraved act of a few deranged individuals.

Heightened Psychological Trauma

Because the violence is so brutal, the degradation so complete and the vulnerability so omnipresent, bias crime victims exhibit greater psychological trauma than non-bias victims. According to the NIAP&V, bias crime victims experience 21% more adverse psychological and physiological symptoms than victims of the same crimes that were not bias-related. n31 The Supreme Court in Mitchell recognized that bias crimes "inflict distinct emotional harms" on their victims. n32

Bias crime victims suffer a myriad of effects, virtually spanning the psychological and physiological spectrum. Because victims have been targeted due to their [*26] very identity, they tend to experience more dramatic and damaging self-blame. Unlike those who can cope with their victimization by attributing it to behavior, bias crime victims realize that they were victimized due to elements of character related to their status. Researchers have commonly noted that "blaming one's victimization on perceived character flaws is associated with low self-esteem, depression, and feelings of helplessness." n33 Other commonly cited psychological and physiological harms include profound sadness; lack of trust in people; withdrawal; excessive fear of personal and family safety; sleep problems; headaches; physical weakness; increased use of alcohol and drugs; excessive anger; and suicidal feelings. n34 Moreover, some bias crime victims experience a type of post-traumatic stress disorder (PTSD) syndrome.

Underreporting and Uncooperative Victims

Bias crimes are also characterized by severe underreporting by victims. With certain victim groups, the underreporting rate reaches as high as 90%. n35 Victims often fail to report bias crimes because of fear, embarrassment, shame, distrust, a sense of futility and a belief that authorities are unconcerned. n36 Moreover, many victims who do file an initial report decline to cooperate further with prosecutors because of "secondary trauma" -- that is, trauma resulting from availing themselves of an often unsupportive, uncaring or unsympathetic legal system. The victim faces the uphill battle of an intense personal examination in court and the ill effects of having personal status characteristics magnified by publicity. Indeed, the personal degradation of the victim often becomes the subject of legal maneuvering as defense counsel attempts to find a benign justification for the attack, including an intense examination of the victim's actions. This can be especially harmful to victims in a vulnerable position, such as undocumented non-citizens or gays and lesbians. Because of the weak legal protection afforded such groups, they may have a particular incentive to keep their membership in the relevant status category secret to avoid possible deportation or other legally abided discrimination.

Moreover, in some communities, the victimization and its concomitant notoriety is regarded as bringing shame not only to the victim, but to the entire group as well. Efforts have been made to enhance reporting and prosecution by improving services to victims. In many areas, victims are provided with aftercare and counseling, referred to crisis centers, and given specialized attention from police and prosecutors. Nevertheless, underreporting and uncooperative victims provide substantial obstacles to successful bias crime prosecutions. n37

Serial Attacks

Bias crimes also tend to involve multiple attacks against the same victim or same class of victims. One 1986 national study revealed that bias incidents involved a series of "multiple interconnected attacks" on 65% of the victims, with an additional 17.5% of the victims experiencing repeated discrete attacks. n38 Another study indicated that nearly half of those physically assaulted based on their sexual orientation reported multiple victimizations. n39

Often victims face a chain of attacks increasing in severity, which often start with minor harassments or vandalism. Consider, for example, the tragic murder of James Zappalorti by two individuals with a history of violent homophobia. Prior to Zappalorti's murder, the two assailants had made him a common target of their ridicule and harassment, taunting with the terms "faggot" and "queer," and even wrecking his small beach hut on a number of occasions. Ultimately, the two men stalked him as he left a local deli; they then stabbed him repeatedly in his chest and slashed his throat. n40 This example illustrates that if authorities fail to intervene early, attacks commonly escalate because the offender feels emboldened by the victim's vulnerability and the lack of an official response.

Invidious Effect on Community

Bias crimes attack the social order of a community in a particularly divisive fashion. The distrust bias crimes cause between members of different racial or ethnic groups can polarize communities. After a bias attack, members of the same status category as the bias offender are often viewed as would-be attackers, or at least as tacit supporters of the perpetrators. Intergroup tensions also have the potential to produce a violent cycle of retaliatory violence. For example, in the month after the bias homicide of a black man in December 1986 at Howard Beach, New York City experienced twice the number of bias crimes from the previous month. n41

Apart from the increased risk of violence is the deleterious effect bias crimes have on community cohesion and social order. Criminologists have found that even [*27] among individuals who face little direct threat of criminal victimization there is a fear and anxiety that is related to a breakdown of community order and civility in their surroundings. n42

PURPOSES OF BIAS CRIME LEGISLATION

Bias crime legislation is designed to further a number of discernable purposes. First, bias crime statutes are designed to ensure that all members of society are free to exercise their civil rights without undue public or private interference. Because the impact of individual bias crimes serves to chill many affected group members from the lawful exercise of their civil rights (including housing, travel, schooling, religious worship and employment), bias crime statutes recognize that individual acts of terroristic bias-motivated violence infringe upon the civil rights of the entire status group.

Second, bias crime statutes seek to deter would-be bias offenders. Experience shows that active enforcement of bias statutes has a definitive impact upon the incidence of bias crime. When Boston began enforcing its state bias crime law, the number of incidents dropped by two-thirds and the presence of repeat offenders was significantly decreased. n43

Most important, however, is the powerful signalling effect inherent in bias crime legislation. The very existence of bias crime statutes sends out a clear message to society that a discriminatory motivation for a crime is a proscribable evil in and of itself; one that we as a society will not tolerate.

II. THE EPIDEMIC OF GENDER-RELATED CRIME

Before addressing whether gender crimes are sufficiently analogous to other forms of bias crimes to support recognition of a gender category, we first need to discuss and understand the epidemic of gender-related crime as it presently exists. At this point, we need to draw a distinction between "gender-related" and "gender-motivated" crimes. We use the term "gender-related" crime broadly to refer to those crimes generally considered to have a gender component; that is, crimes where the victim's gender is a salient aspect of the offense. We define "gender-motivated" crime as any criminal act committed against another motivated in whole or in part by bias or prejudice against the victim's gender. We see "gender-motivated" crimes as a subset of cases existing within the broader category of "gender-related" crimes. This section focuses descriptively on gender-related crimes of violence. n44 In Part III, we will discuss whether some or all forms of gender-related crimes are properly considered gender-motivated, and hence gender-based bias crimes.

Gender-related crime surrounds us. It is so pervasive and deeply entrenched that it permeates all aspects of modern social life: murders, rapes, sexual assaults and violent batteries occur in streets and alleyways, on college campuses and within the home. n45 Data from the Department of Justice indicates that women are six times more likely than men to be victimized by a spouse, ex-spouse, or boyfriend/girlfriend. n46 But even when physical violence is not threatened, women are not free from other forms of sexual abuse or gender-related intimidation. n47

While the forms of gender-related crime vary, the message is constant; and it is a message of domination, power, and control. Socially constructed gender roles, predominantly characterized by male domination and female subordination, are enforced by various means along a coercive continuum. Moreover, the weak societal response in opposition reinforces the message that women are legitimate victims, appropriate targets for rage or outlets for anger.

As a report of the Senate Judiciary Committee has recognized, the problem of gender-based violence has reached epidemic proportion. n48 In recent years, the reported incidence of gender-related crimes of violence -- including gender-based homicide, rape, sexual assault and battery, and spousal and domestic abuse -- has been detailed, and the numbers are staggering.

GENDER-RELATED HOMICIDE

Along the coercive continuum, the most extreme form of gender-related crime is homicide. An analysis of homicide rates reveals that 90% of female homicide victims are killed by male offenders. n49 And as one commentator noted, "sexual murder is the ultimate expression of sexuality as a form of power," and part of a tradition of violent sexual discrimination that some feminists have deemed "gynocide." n50

Among the most notorious examples of gender-related homicide are serial rapist-murderers like Ted Bundy and Christopher Wilder, and feminist assassin Marc Lepine. Executed in 1989, Bundy had been convicted for the murder of three women, and officials believed he tortured and murdered as many as fifty women. n51 In 1984, Wilder perpetrated an undetermined number of serial murders before committing suicide as he was about to be captured. Wilder extensively tortured the women he captured before murdering them; he would bind and rape his victims, stab and sexually mutilate them, or torture them with electric shocks before slaying them. n52 Twenty-five year old Lepine [*28] murdered fourteen women in the engineering department at the University of Montreal in 1989. Before turning his high-powered hunting rifle on himself, Lepine left a note blaming women, especially "feminists," for all of his problems. n53 The Justice Department's Robert Heck observed a frightening trend:

We all talk about Jack the Ripper; he killed five people. We all talk about the "Boston Strangler" who killed 13, and maybe "son of Sam," who killed six. But we've got people out there now killing 20 and 30 people and more, and some of them don't just kill. They torture their victims in terrible ways and mutilate them before they kill them. Something's going on out there. It's an epidemic. n54

Despite the media attention devoted to the extreme serial cases, the vast majority of those who murder women are present or former intimates: husbands or boyfriends. n55 The intimate relationship often creates a backdrop for victimizations that match the brutality of some of the more well-known stranger offender cases. Moreover, the fact that a man targets his intimate does not preclude seriality. Rolf Husbose was convicted in February 1993 for pummeling his girlfriend to death with a tire iron on a Texas beach in 1986. At trial, two of Husbose's former girlfriends testified as to his violence against them, and the fact that he would threaten, "If you don't do what I say, you're going to end up like my girlfriend in Texas -- dead." Despite the brutality of the murder and the significant threat he posed to all women in his path, Husbose only received a sentence of ten years probation, serving only a mandatory 120 days in prison because of his use of a deadly weapon. n56

Researchers have theorized that lethal violence perpetrated by intimates is often motivated by the men's "'inability to accept what they perceived to be a rejection of them or their role of dominance' over the victim." n57 In fact, the majority of intimate perpetrators were separated from their victims when they committed the murder. The men tended to regard the murder as a reaction to "a previous offense against them (e.g., leaving) on the part of their wives." n58 Gender-related murders are often the final act in a continuing and escalating cycle of violence not adequately addressed by the criminal justice system.

RAPE

While state rape statutes differ in their precise language, they generally require the following elements: (1) proof that a proscribed sex act has occurred (typically penetration); (2) proof that force, actual or threatened, was used to perform the sex act; and (3) proof that the sex act occurred "without the consent" or "against the will" of the victim. n59 Traditional conceptions of rape viewed it as a crime of deviant sex or uncontrolled sexual passion; the modern conception that predominates, however, views rape as a crime of violence. n60 [SEE ILLUSTRATION IN ORIGINAL]

[*29] Incidence of Rape

Based on the 109,062 reported rapes in 1992, the Federal Bureau of Investigation estimates that a woman is forcibly raped every five minutes. n61 This estimate is misleadingly low, however, due to inadequate data collection techniques and the fact that rape is one of the most underreported crimes. n62 As Professor Deborah Rhode acknowledges, "[e]stimates of the percentage reaching police attention range from 5 to 50%, and much appears to depend on how one surveys possible victims." n63 One reputable study estimates that only 16% of all rapes are ever reported to the police. n64

But even acknowledging reporting problems, the FBI's limited data documents the dramatic rise in the incidence of rape: since 1987, there has been a 17% increase in the number of reported offenses and a 13% increase in the rate per 100,000 inhabitants. n65 In fact, recent reports reveal an increase in reported rapes from 1990 to 1991 of 59%, n66 and estimate that rape "affects more than a million women a year in the United States." n67 Apart from the yearly statistics, the American Medical Association estimates that one in twelve women in this country will actually be raped at some point during their lifetime. n68 Placing this figure at one in eight, the National Victim Center estimates that "at least 12.1 million American women" have been the victim of forcible rape. n69 Moreover, according to Professor Catharine MacKinnon, "[f]orty-four percent of women in the United States have been or will be victims of rape or attempted rape at least once in their lives." n70

While the numbers may be disputed, what clearly emerges from this data is that rape and/or the fear of rape is an everyday part of the lives of American women. As one commentator noted, to be a woman is "[t]o be rapable." n71 And it is from this fact that some men acquire and exert power -- power to denigrate, power to control, and power to subjugate. In the male arsenal of coercive tools to impose a male-dominated gender hierarchy, forcible sexual intercourse is one of the most powerful criminal weapons (second only possibly to homicide). The very existence of this fact dramatically affects women's exercise of their civil rights. As the Report of the Senate Judiciary Committee on the Violence Against Women Act recently noted:

one recent study showed that three-quarters of women never go to the movies alone after dark because of the fear of rape and nearly 50 percent do not use public transit alone after dark for the same reason. Women accommodate their fears by restricting their behavior. Due in large part to the fear of rape, a woman is eight times more likely than a man to avoid walking in her own neighborhood after dark. n72

Types of Rape

The types of rape vary widely, from stranger rape to spousal rape, to acquaintance and date rape:

Stranger Rape. The most notorious type of rape, and the one traditionally forming the core of the popular conception of the crime, is the "stranger rape." Historically, stranger rape was assumed to be the most prevalent form of rape. Current figures indicate, however, that rapes by strangers actually comprise less than one-quarter of all rapes. n73 A 1987 study by the Department of Justice/Bureau of Justice Statistics nevertheless seemed to support the historical assumption, reporting that about 55% of the estimated number of rapes committed annually were committed by strangers. The Justice Department compiled these figures with a methodology, however, that likely undercounted certain types of victimizations, such as non-stranger rape. In fact, the study itself acknowledged the limitations of its data:

violence involving nonstrangers, particularly relatives, may be underreported in the survey. Individuals victimized by relatives may be reluctant to discuss the event, especially if the offender is present at the interview, for fear of reprisal or out of shame or embarrassment. Further, some victims of domestic violence may not perceive these acts as criminal. Consequently, the results reported here may underestimate crimes by persons known to the victim and therefore overestimate the proportion of crimes committed by strangers. n74

While there is a significant amount of interrelation among types, researchers have generally described [*30] stranger rapists as coming in three types: the power rapist, the anger rapist, and the sadistic rapist. n75 The power rapist is motivated by a desire to overcome his sense of inferiority and inadequacy; through the rape, he asserts the power, control and authority that he fears he lacks. n76 Typically, the power rapist uses only as much force as is necessary to overcome the victim's will and attain sexual compliance. He often denies that he did anything wrong, assuring himself that the victim either "wanted it" or ultimately came to enjoy the experience. n77 The anger rapist uses sex as a weapon, venting the extreme rage that has built up inside of him. As one study explained: "The anger rape may be characterized by force and brutality, in fact much more force than is necessary to overcome the victim. The goal of the anger rapist is to hurt and humiliate the victim -- and what better way to humiliate than to invade the most personal aspect of the self." n78 Another commentator explained that the anger rapist "believes that he must retaliate for an imagined wrong or loss," and that his attacks are "often unplanned, explosive attacks directed toward randomly selected victims." n79 The sadistic rapist is "the least common, but the most violent type" of rapist. n80 He gratifies himself by brutally torturing his rape victims, and sometimes even culminates his sadistic ritual by murdering them. He captivates popular culture with his macabre behavior, and attains front-page press coverage and almost folkloric recognition.

Spousal Rape. Only in the past decade has the notion that a husband can rape his wife become accepted. Despite an estimate that the incidence of spousal rape reaches as high as "[s]omewhere between 10% and 14%," n81 as recently as 1980 only three states had laws proscribing marital rape. Today, almost all states allow for the prosecution of husbands for raping their wives. n82

A large number of those who rape their spouses are also batterers. Researchers Finkelhor and Yllo found that "[t]he kind of man who beats his wife is also more likely to rape her." n83 For the "battering rapist," the most common motivation is spontaneous anger, often triggered by the spouse's leaving or threatening to leave the batterer. n84 Other types of spousal rapes, which Finkelhor and Yllo called "force-only" rapes, focus on sex access rather than mere anger. Force is used only to gain sexual compliance. n85 A third type of spousal rapist is the "obsessive" rapist: he obtains gratification through bizarre and perverse sex acts. As one commentator noted in describing spousal rapists, "[a]nger is the most frequent instigator; needs for dominance and control are frequent; sadistic urges are less often the primary motivation, although they are the major influence in a tenth of the cases." n86

Acquaintance and Date Rape. Like spousal rape, acquaintance and date rape have only recently been taken seriously and recognized as bona fide forms of victimization. While undeniably traumatized by the violation, victims often fail or refuse to acknowledge that they have been raped. Nevertheless, "[v]ictims of rapes by dates or acquaintances report high levels of anger and depression, just as victims of rapes by strangers do." n87

Reliable estimates of the prevalence of these types of rape have been difficult to obtain. Acquaintance rape is the least reported and probably the least understood type of rape. One 1985 study revealed that 95% of date rape victims failed to report the incident to the police. n88 Nevertheless, rape crisis centers report that the vast majority of rapes -- between 70% and 80% -- are committed by acquaintances of the victims. n89 Corroborating these figures, the National Victim Center reports that "[s]eventy-eight percent of rapes involve a person the victim knew -- husbands or ex-husbands; fathers or step-fathers; boyfriends or ex-boyfriends; or other relatives, friends or neighbors." n90

Primary and Secondary Harm to Rape Victims

Rape is one of the most brutal, invasive and degrading forms of criminal victimization. Researchers have thoroughly documented that victims of rape suffer intense trauma, and profound and lasting injury. n91 The detrimental effects include any immediate physical injury sustained during the victimization as well as the risk of pregnancy and sexually transmitted diseases, including HIV/AIDS. In the long term, most rape victims report various forms of serious emotional harm as well. Victims often experience "rape trauma syndrome" or some variant of Post-Traumatic Stress Disorder (PTSD), which is a chronic psychological disorder characterized by sleeplessness, hypervigilence, fearfulness and anxiety, and coping difficulties. n92 Other reported psychological and emotional problems include phobic responses, eating disorders, denial, shock, guilt, hostility and blame, helplessness and dependency, hypersensitivity, and general functioning disturbances. n93 [*31] The National Victim Center maintains that almost one third of all rape victims will develop Rape-Related PTSD (RR-PTSD), and estimates that 5.1 million American women have experienced or are presently experiencing some form of the disorder. Moreover, women with RR-PTSD are "13 times more likely to have two or more major alcohol problems (20.1% vs. 1.5%), and 26 times more likely to have two or more major drug abuse problems (7.8% v. 0.3%)." n94

In addition to the primary victimization, women who have been raped are sometimes victimized a second time by an often insensitive, gender-biased criminal justice system. The Senate Judiciary Committee recently acknowledged that studies conducted across the nation reveal that gender-bias permeates the judicial system and that women are the victims of that bias. n95 Communicating the attitudes of far too many in the public sector, 1990 Texas gubernatorial candidate Clayton Williams commented: "Rainy weather is like a woman being raped; if it's inevitable just relax and enjoy it." n96 Along similar lines, one Wisconsin judge labelled a five-year old victim "an unusually promiscuous lady," while a New York judge justified his imposition of a lenient sentence on a convicted rapist by stating that while the defendant "did go into [the victim's] apartment without permission," the sexual intercourse "started without consent, but maybe they ended up enjoying themselves." n97 As Professor MacKinnon writes:

Women also feel fear and despair of police, hospitals, and the legal system. Women believe that not only will we not be believed by the police, not only will doctors treat us in degrading ways, but when we go to court, the incident will not be seen from our point of view. It is unfortunate that these fears have, on the whole, proved accurate. The fear of being treated poorly is not an invention of women's imaginations. It is the result of the way we have been treated. n98

Unlike virtually every other crime victim, rape victims face a type of institutional skepticism. Victims are often the ones put on trial in rape cases, with juries focusing on extraneous factors like the victim's clothing, lifestyle and demeanor. Studies of jury behavior and attitudes reveal poorly disguised hostility toward rape victims whom juries view as assuming the risk of rape "by conduct such as drinking, wearing 'seductive' clothing, or accepting a ride with the assailant." n99 Prosecuting rape cases often involves invasive and degrading scrutiny of the victim's private life, notwithstanding the existence of rape shield laws in most states. Additionally, reporting the rape carries with it a stigmatization that significantly affects personal relationships and private reputation.

The rights of rape victims are rarely vindicated, in either the criminal or civil courts. Most estimate that only two to five percent of all rapists are ever convicted, n100 and only about one percent of women succeed in bringing civil actions against their rapists. n101 Moreover, Department of [*32] Justice statistics reveal that 13% of convicted rapists are never sentenced to serve any time in prison or jail. n102 For those sentenced to prison terms, the median time served before release is 47 months. n103 [SEE ILLUSTRATION IN ORIGINAL]

In her "Rape Poem," Marge Piercy articulately expresses the frustration and fear felt by so many women:

There is no difference between being raped and being pushed down a flight of cement steps except that the wounds also bleed inside.

There is no difference between being raped and being run over by a truck except that afterward men ask you if you enjoyed it.

There is no difference between being raped and being bit on the ankle by a rattlesnake except that people ask if your skirt was short and why you were out alone anyhow.

There is no difference between being raped and going head first through a windshield except that afterward you are afraidnot of cars but half the human race.

. . .

Fear of rape is a cold wind blowing all of the time on a woman's hunched back.
Never to stroll alone on a sand road through pine woods,
never to climb a trail across a bald without that aluminum in the mouth when I see a man climbing toward me.

Never to open the door to a knock without that razor just grazing the throat. The fear of the dark side of the hedges, the back seat of the car, the empty house rattling keys like a snake's warning. The fear of the smiling man in whose pocket is a knife. The fear of the serious man in whose fist is locked hatred. n104

ASSAULT AND BATTERY

The Surgeon General has stated that violence at the hands of men poses the greatest threat to the health of women in this country. n105 But it is not unknown assailants or the paradigmatic "stranger lurking in the alley" that women should fear most. Instead, friends, acquaintances and lovers pose the greatest threat to women. Nearly two in three female victims of violent crime either knew or were related to their attacker; as noted in a recent Time cover story, "[m]ore American women -- rich and poor -- are injured by the men in their life than by car accidents, muggings and rape combined." n106

Recent figures indicate that a women is battered every fifteen seconds, and that approximately 4 million women are battered or severely assaulted by their male partners each year; even conservative government figures indicate that more than 2.5 million women experience violence annually. n107 About one third of all visits by women to hospital emergency rooms are for injuries related to ongoing domestic abuse, and medical expenses for domestic violence range between 3 to 5 billion dollars annually. n108 Ninety-five percent of all incidents of domestic assault involve male perpetrators and female victims. n109 And as one domestic violence study noted, the injuries sustained by battered women are equally as serious as those suffered in 90% of violent felony crimes, but the crimes are nevertheless charged as misdemeanors. n110

It has been widely documented that domestic violence occurs repetitively, commonly in a serial cycle of abuse. As the Department of Justice has noted: "A salient characteristic of these victims is the relatively high risks they faced of a recurrence of the violence." n111 Government figures detail that victims of domestic assault were two and one half times more likely to experience a repeat victimization than victims of stranger-based violent crime. n112 Moreover, fear of retaliation from the abuser is one of the most cited reasons for a victim's failure to report the incidents to authorities. n113

Traditionally, the criminal justice system has virtually ignored assaults and batteries committed by intimates, treating them as private family matters not subject to external review and punishment. Professor Rhode articulated:

Despite increasing evidence of the serious consequences that follow from wife abuse, many judges' attitudes have remained unchanged; as a consequence, traditional boundaries between public and private have persisted. Contemporary task-force reports on gender bias in the courts have found repeated nonenforcement of protective orders, trivialization of complaints, and disbelief of female petitioners absent visible evidence of severe injuries. . . . Blame [*33] lies not with the men who batter but with the women who stay. "All they have to do," one judge explained, "is to get out of the house. It's as simple as that." n114

Actually, leaving abusive partners safely is not so "simple." Battering males are 75% more likely to kill intimates who leave them as opposed to those who remain. n115 Moreover, most women are unable to escape their spouse's violence due to a lack of economic independence. And those who are able to leave an abusive household often end up on the streets. It has been estimated that half of the homeless women and children in this country are fleeing domestic violence. n116

Whether at the hands of unknown misogynists or the closest of intimates, gender-related assaults and batteries occur with dramatic frequency, fundamentally affecting and altering the lives of many American women.

III. DO GENDER-RELATED CRIMES FIT THE BIAS CRIME MOLD?

With a foundational understanding of the defining characteristics of bias crimes and a general overview of some of the most extreme and violent types of gender-related crime, we now examine whether, as a theoretical matter, gender-related crimes fit within the doctrinal frame-work of bias crimes such that a gender-based bias crime category should be recognized. And if there is a fit, which gender-related crimes should be considered gender-motivated, and what are the practical implications for recognizing the category?

THE THEORETICAL "FIT" BETWEEN GENDER-RELATED CRIMES AND BIAS CRIMES

There is no consensus on the issue of fit. Some groups, like the ADL, have taken the position that while gender-related crime represents a serious threat to society, [*34] it is a distinct type of victimization that should not be addressed as a form of bias crime. Along similar lines, many state legislatures have failed to include a gender category in their bias crime laws. n117 The Hate Crimes Statistic Act of 1990 also excluded gender. [SEE ILLUSTRATION IN ORIGINAL]

Others take an intermediate position, recognizing that some crimes motivated by gender should be characterized as bias crimes. For instance, hate crimes experts Jack McDevitt and Jack Levin contend that "gender-motivated hate crimes should include those attacks in which the offender is looking for any woman." n118 They cite the Central Park Jogger case as a classic example of a gender-based bias crime; in that case, a white woman was savagely gang raped and almost killed by a gang of African-American and Latino youth after being beaten with rocks, a brick and a metal pipe, and slashed with knives. n119 For McDevitt and Levin, victim interchangeability is the essential characteristic of gender-based bias crimes.

Finally, some wholeheartedly embrace recognition of a gender category. For instance, Professor MacKinnon has written:

Women are sexually assaulted because they are women; not individually or at random, but on the basis of sex, because of their membership in a group defined by gender. . . .
Just as women are sexually harassed based on their sex, women are sexually assaulted based on their sex. Both forms of treatment (which overlap) are categorical and group-based. Men, usually heterosexual, harass and rape women. Any woman within the ambit of such a man is his potential victim and, when she is harassed, is disadvantaged because of her sex. But for her sex, she would not be so treated. n120

Currently, twelve states and the District of Columbia have enumerated gender as a protected category in their bias crime statute. But despite categorical recognition, prosecutions are virtually nonexistent in all of these states.

From these disparate views on the matter, it is clear that the issue is not settled. We are therefore compelled to compare gender as a category to the other typically enumerated bias crime categories, and to compare gender-motivated crimes to those crimes motivated by race, religion, ethnicity, and sexual orientation.

At the categorical level, gender is commonly included in virtually all anti-discrimination laws alongside other bias crime categories such as race and national origin. Also like those two categories, gender classifications trigger a form of heightened judicial scrutiny in the Supreme Court's equal protection jurisprudence, n121 in part because of the long history of discriminatory treatment of women as a class, and in part because gender or sex is an immutable characteristic. As Justice Brennan noted in Frontiero v. Richardson: n122

[Our] Nation has had a long and unfortunate history of sex discrimination. . . .

[I]t can hardly be doubted that, in part because of the high visibility of the sex characteristic, women still face pervasive, although at times more subtle, discrimination. . . . Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate "the basic concept of our system that legal burdens should bear some relationship to individual responsibility." And what differentiates sex from such nonsuspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members. n123

The conspicuous absence of a gender category in bias crime laws, while categories not recognized as suspect or quasi-suspect classifications in equal protection jurisprudence are included, appears particularly curious. Moreover, because the need to remedy gender discrimination is already recognized in civil anti-discrimination law (i.e., employment, housing, voting rights), there appears to be no persuasive reason to draw a line at the criminal threshold only for gender-based discrimination. If anything, violent, criminal civil rights violations such as those typically perpetrated against women are the ones that pose the most immediate and dangerous threat to those who are discriminated [*35] against.

In any event, given the substantial inclusion of gender categories throughout civil rights legislation, the problem with including a gender category in bias crime laws cannot simply be at the categorical level. The issue is really which gender-related crimes can be properly characterized as bias crimes; which ones should properly be considered motivated by bias on the basis of sex or gender?

Even those who oppose recognition of a gender category cannot reasonably contend that women are never victimized because of their status. Certainly women are subject to status-based victimization on at least some occasions. For example, when Marc Lepine segregated and shot only the female engineering students at the University of Montreal, or when Christopher Wilder raped and sexually mutilated his women victims, both men systematically chose their victims on the basis of sex with a clearly articulated bias motivation. Similarly, serial stranger rapists characteristically choose their victims at random, with the salient factor informing the rapist's victim choice merely being the individual's gender. The fraternity gang rape of a random college female who happens to be at the wrong place at the wrong time also fits this model. In all of these cases, the victims are undeniably chosen merely because of their gender. We consider these to be "obvious" gender-based bias crime cases, just as the Howard Beach homicide is an "obvious" racially-based bias crime case. Each case involved a random victimization where the victims were not known by the offender and where the reason for the perpetrator's choice of his victim was group affiliation. The "obvious" gender cases are analogous to other crimes motivated by bias in several other respects as well. Typically, they are extremely violent, often serial in nature, and usually the random act of a stranger, instilling terror and apprehension in a targeted community. Thus, it appears that the "obvious" cases possess the defining characteristics of bias crimes. The serial rapist and misogynist homicidal sociopath appear to be close cousins of the gay-basher and robed, night-riding klansman.

While the "obvious" gender cases squarely fit the bias crime mold, other gender-related crimes that are less clearly motivated by bias against the gender group, such as nonstranger rape or spousal abuse, nevertheless possess many of the characteristics that typically define bias crimes. Most important, those who perpetrate such gender-related crimes, like bias crime offenders, tend to define their victims as legitimate targets of aggression or domination on the basis of group status. The man who beats his wife or commits a date rape regards his victim as properly dominatable. Like bias offenders, gender-motivated offenders tend to commit habitual victimizations, often against the same target. The cyclical nature of spousal abuse supports this model; so do the recidivistic tendencies exhibited by many rapists. These gender crimes instill terror in the targeted community and alter behavior in the class of potential victims in much the same manner as other types of bias victimization. Also like traditional bias crimes, gender-motivated crime is consistently underreported, with victims citing fear of retaliation by the offender and of "secondary trauma" in dealing with an unsympathetic legal system. Victims of both types of crime similarly experience heightened psychological trauma.

Recognizing a Gender-Based Bias Crime Category: Answering the "Fit" Argument

Those who oppose treating gender-motivated crimes as a type of bias crime contend that gender-motivated crime does not really "fit" the bias crime mold. They suggest that those who perpetrate gender crimes do not "hate" all women in the same sense that a white supremacist hates all African-Americans or an anti-Semite hates all Jews. There are several reasons why this argument should not preclude theoretical recognition of gender as a category in bias crime laws. First, the argument entirely disregards the fact that some criminals do commit crimes because they "hate" all women. Second, the argument puts too much emphasis on "hate" of the group as the motivating factor behind bias crimes. As Professor Gregory Herek, a social psychologist and expert on homophobic violence, has written: "the term hate crime can be misleading if it implies that the attacker's motivation always is intense personal hatred for the victim's group." n124 Herek explains:

it is cultural heterosexism that defines gay people as suitable targets that can be "used" for meeting a variety of psychological needs. And anti-gay attacks, regardless [*36] of the perpetrator's motivation, reinforce cultural heterosexism. Thus, when a teenage gang member attacks a gay man on the street, it is a hate crime not because hate necessarily was the attacker's primary motive (it may or may not have been) but because the attack expresses cultural hostility, condemnation, and disgust toward gay people and because it has the effect of terrorizing the individual victim as well as the entire lesbian and gay community. The attack in effect punishes the gay person for daring to be visible. n125

Similarly, a gender-related crime such as rape or domestic violence should not be precluded from bias crime characterization merely because the perpetrator does not necessarily hate all women, or because he may not specifically intend his action to have any effect on women as a gender class. Whether or not the attacker's "primary motivation" is hatred toward all women, the offense may still be a bias crime because it directly reinforces the subjugated status of women and has the effect of terrorizing the entire community.

Rather than use the misnomer "hate" crimes, this essay refers to status-based deprivations of civil rights as "bias" crimes because the term more accurately places the emphasis on the discriminatory, group-based hierarchical component that led to the existence of bias crime legislation in the first place. The key to bias crime categorization is not really the hateful "specific intent" of the offender, but rather the offender's discriminatory use of violence to enforce a particular social hierarchy that is biased against the targeted status category. The perpetrator tends to have a conception of "proper" roles to be played out by members of the targeted (often subjugated) status category. He then uses violent victimization as a coercive force to compel compliance with that hierarchical social order, a type of violent discrimination. Typically, his violence is targeted at those members of the disfavored status group that he views as "transgressors": those who fail to adhere to his normative role-based conceptions -- the black family moving into a white neighborhood, the black man who dates white women, gay men and lesbians who fail to stay "in the closet." In a similar way, gender-related crimes of violence can be used as a way to keep women "in their place" and to send a message to all women, reinforcing and reifying their subordinated status. n126 Even when there is no identifiable "transgression" on the part of the victim, the message of status-based subordination is still clear. When a group of fraternity brothers rape a woman or gay bash merely for the thrill of doing so, for example, their actions nevertheless reinforce a dominant-subordinate social hierarchy. n127

While those who rape or batter may not think of themselves as women-haters, there is clearly an element of disrespect, anger and malice to their actions that is inextricably gender-related and therefore de facto gender-based. Most important, these types of violations clearly reflect a total disregard of the other's right to exercise the most fundamental aspects of personal autonomy -- the right to control one's body and to be free from forceful, violent victimization by virtue of one's gender. To this end, gender-based violations are clear examples of status-based deprivations of civil rights.

Recognizing a Gender-Based Bias Crime Category: Answering the "Interchangeable Victims" Argument

Those who oppose recognition of a gender-based bias crime category also contend that gender crimes are distinguishable from traditional bias crime offenses because most gender crimes do not involve strangers. They suggest that the personal relationship between the victim and offender is the salient characteristic in most gender-motivated cases, while bias crimes typically involve groups of attackers victimizing unknown, interchangeable victims. n128 In effect, these opponents suggest that the absence of one of the definitional characteristics precludes recognition of the gender category (apparently disregarding the fact that bias crime determination involves a "totality of the circumstances" test). For instance, the ADL has cited this argument to support its decision to exclude gender from its model bias crime statute, nothing that the lack of victim interchangeability distinguishes gender-related crimes from traditionally recognized bias crimes. Rather than excluding [*37] a gender category altogether, others have proposed that only those gender-related crimes that involve interchangeable victims are properly characterized as bias crimes. Advocating the interchangeability model, Professor McDevitt of Northeastern University has argued that only stranger rape should be included as a gender-based bias crime, excluding date or acquaintance rape and all domestic violence because of the lack of victim interchangeability. McDevitt writes that in stranger rape cases,

the victims are often interchangeable, their individual characteristics being irrelevant or at best secondary in determining why they were chosen for victimization. . . .

With respect to race, any black family that moves into certain neighborhoods will likely be attacked. With respect to sexual orientation, any man thought to be gay who happens to walk down a particular street will in all likelihood be assaulted. Similarly, gender-motivated hate crimes should include those attacks in which the offender is looking for any woman. By this criterion, acquaintance rape and acts of domestic violence, no matter how despicable, would be excluded from consideration as hate offenses. Only random attacks against women would be included. n129

The interchangeability argument possesses some intuitive appeal, but it gives way under scrutiny. Victim interchangeability is clearly common to many bias crimes and has therefore been treated as an inclusive factor. It should not, however, be viewed as a preclusive factor. The lack of victim interchangeability does not prevent the characterization of a crime as a bias crime with respect to the other categories. While approximately 85% of bias crimes are committed by strangers, that hardly means that the other 15% are not bona fide bias crimes. n130 Consider the following scenarios. A particular offender knows a man in his neighborhood is gay, and encounters that person frequently in passing. If that offender would only assault that particular gay man or other gay men he knows and would not go and search out other unknown gay men to "bash," that does not prevent his ultimate violent victimization of the known neighborhood gay man from being characterized as a bias crime. Similarly, it is not seen as preclusively determinative that a white supremacist would burn a cross only on the front lawn of the black family that lives next door to him, or that an anti-Semite would only spray a swastika on the local synagogue. The fact that these bias crime victims are not really "interchangeable" does not preclude characterization of their victimization as bias crimes. Likewise, the preexisting relationship between the victim and perpetrator of a date rape or sexual battery should not preclude characterization of that victimization as a bias crime. To rigidly adhere to victim interchangeability as the dispositive criterion only in gender cases and not in other traditional bias crime cases imposes an inequitable gender-biased double-standard.

Lynching, perhaps the quintessential bias crime, may best highlight the fallacy of the interchangeability argument. Lynching simultaneously enforced a racist social order that deprived African-Americans of their civil rights and invidiously instilled terror in the targeted community, sending out the message that any transgression may be punishable by death. Historically, though, many lynchings did not involve interchangeable targets, and the victims were not selected at random. For instance, when Emmett Till was lynched and his body mutilated in the South during the 1950s, the killers did not randomly select any "interchangeable" African-American. They intentionally selected a particular individual who impermissibly transgressed unwritten, yet deeply entrenched racially stratified norms because he whistled at a white woman. Victim interchangability would hardly provide a doctrinal impediment to prosecuting that case as a bias crime if it occurred today.

Indeed, the tragic history of lynching in this country may provide some intriguing parallels to modern day gender-motivated violence. While the brutal, terroristic murder of an individual is not the "same" as the terror associated with rape, the comparison is instructive for it highlights how certain individual crimes can have farreaching implications on the targeted status groups. As Professor MacKinnon argues, rape and sexual assault can be viewed as modern day analogies to lynchings:

sexual assault in the United States today resembles lynching prior to its recognition as a civil rights violation. It is a violent humiliation ritual with sexual elements. . . . When it is done, it is as if it is what the victim is for; the whole target population cringes, withdraws, at once identifies and disidentifies in terror. The exemplary horror keeps the group smaller, quieter, more ingratiating. n131

[*38] Certain crimes so typify and reify particular social hierarchies that they are by definition and by their very nature "group-based" violations, even though individual animus may be a significant motivation for the victimization. Few would deny that lynching is just such a crime. So too are some gender crimes, most particularly rape. Just as lynching was used as a chilling coercive weapon in order to enforce a racially discriminatory social order, rape and other gender-motivated crime can be viewed as weapons used by men to subjugate women.

The Personal-Relationship Dynamic in Gender-Based Crimes: A Problem for the Bias Crime Mold?

The interchangeability argument does highlight one important aspect of gender-motivated crime that does not cleanly fit the bias crime mold: unlike many other bias crimes, gender-motivated crimes typically have a personal-relationship dynamic that may contribute to the victimization. This fact is problematic for some because bias crime laws address only status-based deprivations of civil rights, not individual acts of violence that just "happen" to be inflicted against members of a particular group; otherwise every inter-racial crime would necessarily be considered a bias crime. When someone is victimized for reasons relating to individual rather than group attributes ("individual as individual"), the crime is generally not considered a bias offense. Some argue that gender crimes like acquaintance rape and spousal abuse primarily involve "individual as individual" victimizations, and are therefore not bias offenses. They argue that the offender's motivation is primarily sexual compliance in rape cases or individualized anger in spousal abuse cases. But even if there is an individual component to these gender-related crimes, that should not preclude bias crime classification when there is also a significant group component. Bias crime statutes do not require group bias to be the sole motivation. Rather, they typically require an offender's bias motivation to be a "substantial factor" in the victimization, or that the offender be motivated "in whole or in part" by bias against a protected status group. A status-based deprivation of civil rights is a group-related violation even if the offender is motivated by personal animus as well. Still, opponents argue that many gender crimes involve primarily individual (private) and not group-based (public) deprivation of rights. This public-private dichotomy permeates traditional conceptions of the boundaries on State authority to enforce criminal law. Historically, the State has ignored family-related crimes such as spousal abuse or spousal rape, viewing such conduct as mere private matters that are off-limits to public scrutiny or criminal prosecution. The recent trend, however, has been to move away from traditional conceptions as courts and legislatures have shown increased willingness to protect individual rights within the family context, and then to recognize that criminal abuse is no less harmful or serious merely because it is perpetrated within the home. n132 This rationale is as persuasive in the bias crime context as it is in the context of spousal or child abuse, elder abuse or incest.

The Group Component in Rape Cases

Undeniably, there is a sexual component in all rape cases; just as there is an individual component in all date or acquaintance rape cases. But the question for bias crime purposes is whether there is also a significant group component. While rape may be sexually motivated in part, it is also motivated in significant part by prejudice or bias against the victim's gender. What is dispositive is that the offender has the intent, explicitly or implicitly, to disempower, frighten and overpower the other into compliance by force or threat. The unmistakable effect of the offense is to reinforce a sexually stratified social hierarchy. Again, Professor MacKinnon articulately and persuasively explains how rape, the most intimate of violent victimizations, is inherently and inextricably group- or status-based:

Sexual violation symbolizes and actualizes women's subordinate social status to men. It is both an indication and a practice of inequality between the sexes, specifically of the low status of women relative to men. Availability for aggressive intimate intrusion and use at will for pleasure by another defines who one is socially taken to be and constitutes an index of social worth. To be a means to the end of sexual pleasure of one more [*39] powerful is, empirically, a degraded status and the female position. In social reality, rape and the fear of rape operate cross-culturally as a mechanism of terror to control women. To attempt to avoid it, women are constrained in moving about in the world and walk down the street with their eyes averted. Rape is an act of dominance over women that works systematically to maintain a gender stratified society in which women occupy a disadvantaged status as the appropriate victims and targets of sexual aggression. n133

Similarly, spousal or domestic abuse may serve to perpetuate gender stratifications, to maintain and perpetuate women's subordinate status, and to highlight women's disadvantaged status as acceptable outlets for aggression.

The Intersection Between Gender and Other Enumerated Bias Categories

Failure to recognize a gender category may also prevent full recognition and enforcement of bias crimes motivated by bias against race, ethnicity, national origin, and sexual orientation. If gender is not recognized as an enumerated category, then the other bias categories may be underserved. There is an important intersection between gender and the other typically enumerated bias categories that is not presently given adequate consideration. The net result is a latent gender-bias built into the prevailing conception of bias crimes (the paradigmatic bias crime victim appears to be male). Presently, if a white supremacist rapes an African-American woman, for instance, the bias related component of the rape is often not considered, and the case may get filed away as a sexual offense without any cross reference as a bias crime. In actuality, the victim is raped as a woman of color; the offender dually enforces dominance over women and dominance over African-Americans, with a particular discriminatory emphasis on the very low status of women of color in his eyes. The fact that rape can be used as a political tool is highlighted by the recent human rights violations at Bosnian "rape camps." n134 Tens of thousands of Bosnian Muslim women were systematically raped in an institutionalized fashion, thereby sending an inherently political, racist message. The mere fact that a bias offender chooses rape as the criminal means to express his bigotry should not preclude bias crime categorization.

Bias crime laws should liberally allow for the possibility that multiple categories can be implicated at the same time, thereby recognizing the intersecting identities of some victims. Unfortunately in the context of Title VII, some courts have interpreted Congress' intent to preclude allowance of an intersecting category to remedy discrimination of women of color. One court held that women of color "should not be allowed to combine statutory remedies to create a new 'super-remedy' which would give them relief beyond what the drafters of the relevant statutes intended"; the court required plaintiffs in Title VII cases to state a claim "for race discrimination, sex discrimination, or alternatively either, but not a combination of both." n135 Rather than grant women of color a "super-remedy," the court in effect denied them any remedy at all. To avoid similar judicial misinterpretation of bias crime statutes, legislatures should be explicit as to their intent to allow for intersecting, multi-category prosecutions. Such interpretation of bias crime laws also presents the possibility of avoiding the danger of "essentialism" that is inherent in group-based classifications, and particularly gender classifications of the type presently considered. Professor Angela Harris has critiqued the dominant feminist legal theory on essentialist grounds. n136 She writes:

Despite its power, MacKinnon's dominance theory is flawed by its essentialism. MacKinnon assumes, as does the dominant culture, that there is an essential "woman" beneath the realities of differences between women -- that in describing the experience of "women" issues of race, class, and sexual orientation can therefore be safely ignored, or relegated to footnotes. In her search for what is essential womanhood, however, MacKinnon rediscovers white womanhood and introduces it as universal truth. n137

While our conception of gender-based bias crimes is influenced by Professor MacKinnon's dominance theory, statutes to address these crimes need not be similarly flawed by essentialism. Bias crime laws can avoid the essentialist critique by respecting the intersecting identities of certain victimized groups, such as women of color and lesbians. Such an approach does not needlessly confuse distinct legal categories; rather it recognizes the inherent complexity of the victimizations and tailors the doctrine to correspond to reality.

In the final analysis, the arguments against recognizing [*40] a gender-based bias crime category are not persuasive. Some gender-motivated crimes of violence are directly analogous to traditional bias crimes. In these instances, which this essay refers to as the "obvious" cases, the bias component is as evident as it is in bias offenses motivated by race, national origin, religion or sexual orientation. Admittedly, the bias component is sometimes less apparent in other types of gender-related crime. As a categorical matter, however, the presence of complex, borderline cases has never precluded categorical recognition in bias crime legislation. The real question should not be whether legislatures should recognize a gender-based bias crime category, but instead which gender-related crimes should be treated as being gender-motivated.

DEFINING THE GENDER-BASED BIAS CRIME CATEGORY: SOME PRACTICAL CONSIDERATIONS

Despite the theoretical legitimacy, recognition of a gender category poses some practical concerns. What crimes fall within the category? Moreover, how should legislatures codify the category given the unique nature of gender-based victimizations? Is the traditional bias crime model of penalty enhancements always the proper way to address them? And how should recognition of the category impact the way in which authorities traditionally record, investigate and prosecute gender-based and often sexually related criminal offenses?

At the very least, the crimes previously described as "obvious" gender-based bias crimes should be included in the category. Such cases fall squarely within the traditional model of bias crimes and should therefore be treated accordingly, with a penalty enhancement added to the perpetrator's sentence in order to address the "group-related" component inherent in these crimes. Serial rapes, serial murders whose victims are systematically targeted based on gender, and any offense where gender-bias is explicitly evident should therefore be considered gender-based bias crimes.

Rape poses some complex issues regarding bias crime classification. As discussed earlier, rape (other than statutory rape) n138 is a uniquely personal and invasive victimization that is also inherently gender-motivated. More than any other gender-related offense, rape reinforces and perpetuates a gender-discriminatory, sexually stratified social hierarchy. No matter what the particular facts of a given case, there is no escaping the fact that rapes are committed against women as women. For this reason, rape is by its very nature a bias-motivated assault. n139 This conclusion argues for a legislative declaration that stipulates that all rape, except for statutory rape, is a bias crime. [*41] Some argue that the traditional bias crime model of penalty enhancements is not the answer, however, because rape is already one of the most severely penalized crimes. We acknowledge that rape sentences can be substantial (in the rare situations where the victimization is reported, the case is prosecuted, and the offender is convicted). Nevertheless, Department of Justice statistics reveal that the median time served by convicted rapists is only 47 months and incarceration is not imposed at all in thirteen percent of the cases. n140 Given these statistics, the sentence enhancement model of bias crimes seems quite appropriate. [SEE ILLUSTRATION IN ORIGINAL]

The gender-based bias crime category should also include less self-evident cases where the perpetrator is nevertheless motivated by bias against the gender group. Individuals who habitually or serially commit gender-related assault, battery or sexual assault should be treated as bias-motivated offenders. Along these lines, the man who has a history of assaulting his girlfriends and then goes on to assault, batter or sexually assault his wife or current intimate should be considered a bias-motivated offender. n141 As discussed earlier in Part II, Rolf Husbose had a history of physically abusing and threatening his girlfriends, one of whom he killed with a tire iron. If that murder had been prosecuted as a gender-based bias crime, he never would have been sentenced to only 120 days in prison and probation.

We do not mean to suggest, however, that any criminal victimization of a woman is a bias crime. Not all domestic assault is necessarily motivated by gender-bias; it is at least possible that the motivation for the assault may be individually context-specific, without a significant bias component. But when the victimization is habitual, as most domestic assaults are, and where there is a history of similar gender-related assault, then the victimization should be considered a bias crime. The history need not be previously reported or documented, however, as long as there is sufficient evidence to support the existence of a pattern or previous instances of assault. The prior history of similar assaults should create a rebuttable presumption that the assault in question was motivated by gender-bias. The offender may be able to rebut that presumption if he can prove that there was legal justification or provocation sufficient to show the absence of gender-bias. The trier of fact should be guided by the principle that typically, in bias crimes, the provocation is out of proportion to the assaultive response.

In states that recognize a gender category, courts have just begun to recognize that domestic violence can constitute a type of bias crime under certain circumstances. A judge in New Hampshire, for instance, recently used that state's bias crime law to more than double the sentence meted out to thirty-two year-old Richard Towne, a man with a ten-year history of physical and mental abuse of women. Towne received a two-to-five year sentence for a March 1991 "misdemeanor" assault of a woman whom he had previously been convicted of assaulting on five other occasions. n142 The Towne case provides a textbook illustration of why a gender category is needed in domestic violence cases. As discussed earlier, domestic violence is typified not by one discrete assault, but instead by a series of assaults over a long time-period. Viewing certain instances of domestic violence as bias offenses allows for enhanced sentences, and acknowledges that these cases are more serious than a simple assault (which is only a misdemeanor).

But the key to characterizing rape and much domestic violence as a form of bias crime lies not necessarily with enhancing the sentence, because that can already be done without implicating the bias crime category, particularly when the law already recognizes those types of victimizations as separate crimes. Rather, an important purpose of bias crime legislation is to articulate the message that status-based victimizations are themselves worthy of individual treatment due to the perpetrator's particularly depraved discriminatory motive. Bias crime recognition in such cases may also focus judicial attention on attempts to rehabilitate the offender by forcing a recognition that rapists and domestic abusers have a problem with violent behavior and the way they view women generally, rather than merely an individual problem with one woman. Just as with all bias offenders, the victim's perceived second-class status legitimates the violence. By recognizing the group-based animosity underlying these victimizations, we not only decry the violence but also take the first step in confronting the underlying attitude that allows the violence to occur.

Besides lack of statutory recognition of the category, the largest impediment to effective prosecution of gender-based bias crime laws is actually the absence of a coherent enforcement policy that is implemented by prosecutors. There are few, if any, prosecutions in those states that do recognize a gender category. California, for instance, records only one conviction. n143 The simple fact is prosecutors do not have a working definition of gender-based bias crimes. This essay seeks to clarify the category. In the end, however, enforcement and judicial opinion will define the exact boundaries, in much the same manner as they are defining the boundaries of the other bias crime categories.

Those who oppose recognition of a gender-based [*42] bias crime category are wary of the impact the category might have on the way in which authorities record, investigate and prosecute gender-based crimes. They fear that the sheer number of gender cases will overwhelm the other categories and deplete the limited resources allocated for enforcement of bias crime laws. But this fear is misplaced. The special investigative and prosecutorial skills of sex crime detectives and prosecutors should not be replicated by counterparts in the more generalized area of bias crimes. Instead, the existing institutions and services organized to respond to gender-related crime should remain in place. These existing institutions are well-suited to perform the slightly modified tasks required of them in order to enforce a gender-based bias crime law. It is quite possible that an integrated system including gender bias crimes would involve so many gender incidents that the emerging "traditional" bias system may be eclipsed by a new one that is weighted heavily toward addressing the crucial, yet distinct issues involved in the gender cases. But the answer to this problem is not refusing categorical recognition to gender, as opponents suggest; it is, instead, merely the maintenance of separate institutional systems.

Modification of data collection procedures raises additional issues. The two most salient data collection issues are: first, for which gender-related cases should data be collected; and second, how should the gender category be integrated with the emerging system to track traditional bias crimes? The first issue has already been addressed at the beginning of this section. All non-statutory rapes and sexual assaults should be classified as gender-based bias crimes for statistical purposes. Also included should be those domestic assaults where there is evidence of repeated gender-related abuse by the perpetrator, and any crime where there is explicit evidence that the offender was motivated by bias against the victim's gender status. n144 Police reporting forms should be modified to include "sex" or "gender" as a category of bias crime. Once that box has been checked, the responding officer should check an additional box describing the type of gender bias crime: (1) rape; (2) sexual assault; (3) domestic abuse; or (4) general bias (i.e., the "obvious" cases). Police should be trained to distinguish these types of cases from those where a female happens to be the victim of a crime but bias did not play a role, such as a robbery. These "gender bias" statistics should be kept distinct from other bias crimes in annual crime reports. Separate data collection treatment is required because, statistically, a gender category would out-number all the other traditional categories many times over. By labelling gender-based bias crimes as civil rights violations and specifically enumerating crimes such as domestic assault in that category, we will for the first time create a meaningful system for tracking crimes involving violent discrimination against women.

CONCLUSION

Historically, the law was used to perpetuate a discriminatory social order. Legal doctrine sanctioned discrimination on the basis of race, gender, national origin, religion; the self-evident intent was to establish and perpetuate a particular, unequal social order. Some groups, like African-Americans and white women, were treated as mere chattels, the "property" of their master. Since the Civil War, and buttressed by the suffrage movement at the beginning of this century and the civil rights and feminist movements in the latter half of the century, the law has been used to rectify the discriminatory imbalance. Bias crime laws are among the most recent members of a broader body of remedial legislation. At their root, they address status-based deprivations of civil rights, separating out for special treatment those instances where an offender uses criminal conduct as a means to express his discriminatory beliefs. They send a clear message that the prejudiced social hierarchy which the bias offender seeks to enforce through his criminal conduct has no place in a country devoted to equality and committed to recognizing the civil rights of every member of society regardless of the individual's status characteristics.

The theoretical "fit" between gender-motivated crimes of violence and traditional bias crimes is concededly not an exact one, but we believe it is a substantial one. Recognition of a gender category would properly place gender-motivated deprivations of civil rights on equal legal footing with other analogous deprivations based on race, national origin, religion, and sexual orientation. It also would send a clear message that gender-motivated crime is not merely a "private" or "family" matter, but instead a status-based civil rights violation that has the [*43] effect of denying an entire class of citizens of their rights. n145 But failure to include the category entirely also sends a message, countenancing rather than counteracting the offender's discriminatory social hierarchy. Gender-motivated deprivations of civil rights should be recognized as bias offenses. Once the status-related animus of many gender-motivated criminals is seen in this light, the criminal law can punish the depraved conduct accordingly.

ACKNOWLEDGEMENTS
The authors would like to thank Jack McDevitt, Allison Moore, Mary Dunlap, Ann Noel, Greg Herek, Angie Lowry, David Frazee, Richard Cellini, Michael Lieberman, William Johnston, Senator Ben Nighthorse Campbell, and Senator Joseph Biden for their helpful comments and insights. Thanks also to Robert Purvis and the Center for the Applied Study of Prejudice and Ethnoviolence, Steven Freeman and the Anti-Defamation League, the National Victim Center, the Center for Women's Policy Studies, and the Chicago Lawyer's Committee.

NOTES

n1 Transcripts from Oral Argument, Wisconsin v. Mitchell, No. 92-515, at 40 (U.S. Wed. Apr. 21, 1993).
n2 Violence Against Women: Victims of the System: Hearing on S. 15 Before the Senate Committee on the Judiciary, 102d Cong., 1st Sess. 63 (1991) (Statement of Hon. Roland W. Burris).
n3 112 S. Ct. 2538 (1992).
n4 113 S. Ct. 2194 (1993).
n5 Many have noted the semantic distinction between the terms "gender" and "sex." See, e.g., DEBORAH L. RHODE, JUSTICE AND GENDER 5 (1989) ("using 'gender' when referring to predominantly cultural dynamics and 'sex' when referring to clear biological classifications"). For the purposes of this essay, we will use the terms "gender" and "sex" as synonymous. For similar use of the terms, see Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: Toward a Feminist Jurisprudence, in VIOLENCE AGAINST WOMEN 201, 219 n. 1 (Pauline B. Bart & Eileen Geil Moran, eds., 1993); W.H. Hallock, Note, The Violence Against Women Act: Civil Rights for Sexual Assault Victims, 68 Ind. L.J. 577, 578 n.9 (1993).
n6 Federal Hate Crimes Statistics Act of 1990, Pub. L. No. 101-275, 104 Stat. 140 (condified as amended at 28 U.S.C.A. § 534 (West 1993)). For bias crime figures, see FEDERAL BUREAU OF INVESTIGATION, U.S. DEP'T OF JUSTICE, HATE CRIMES 1992 1 (1994); Brian Levin, Bias Crime in the United States 1 (1993) (unpublished manuscript, on file at the Center for the Study of Ethnic & Racial Violence, Edgewater, California). The latter figure compensates for underreporting by victims and non-compliance by some police agencies.
n7 H.R. 1152, 103rd Cong., 1st Sess. (1993); S. 1522, 103rd Cong., 1st Sess. (1993).
n8 H.R. 1133, 103rd Cong., 1st Sess. (1993); S. 11, 103rd Cong., 1st Sess. (1993).
n9 Wisc. Stat. Ann. § 939.645 (West 1993).
n10 ANTI-DEFAMATION LEAGUE OF THE B'NAI B'RITH, ADL HATE CRIMES STATUTES: A RESPONSE TO ANTI-SEMITISM, VANDALISM AND VIOLENT BIGOTRY A-1 (SUPP. 1990).

In addition to specific laws addressing bias crimes, many other reforms have been implemented to enhance enforcement of bias crime laws. Metropolitan police departments in Boston, New York, Los Angeles, Chicago, and San Francisco have formed specialized bias crime units. Many other departments have distinct procedures for the investigation and referral of suspected bias crime cases. Over the next several years, most police agencies are expected to collect data on the number and type of bias crimes occurring in their jurisdiction as part of the voluntary system being implemented by the FBI's Uniform Crime Reporting Section.
Other agencies are continuing to enhance their response to bias crimes. Some human relation agencies and private advocacy groups provide mediation, education, and victim services. Prosecutors in New York, Massachusetts, Illinois and California have assigned attorneys to handle bias crime cases. Various schools have introduced bias reduction programs. Correctional programs have been established in Boston, Montgomery County, Maryland, Los Angeles, and New York City to rehabilitate offenders through community service and education.
n11 UNIFORM CRIME REPORTING SECTION, FEDERAL BRUEAU OF INVESTIGATION (FBI), U.S. DEP'T OF JUSTICE, FBI, HATE CRIME DATA COLLECTION GUIDELINES 2-3.
n12 See, e.g., BRIAN LEVIN, A PRACTICAL APPROACH TO BIAS CRIMES 3-4 (1992).
n13 Jack McDevitt, The Study of the Character of Civil Rights Crimes in Massachusetts (1983-1987) 5-7 (unpublished manuscript presented to the American Society of Criminology, Nov. 1989).
n14 JACK LEVIN & JACK McDEVITT, HATE CRIMES: THE RISING TIDE OF BIGOTRY AND BLOODSHED 71-72 (1993).
n15 Joseph M. Fernandez, Bringing Hate Crime Into Focus, 26 HARV. C.R.-C.L. L. REV. 261, 261-62 (1991).
n16 LEVIN & McDEVITT, supra note 14, at 69.
n17 BRIAN OGAWA, COLOR OF JUSTICE 151 (1990).
n18 UNIFORM CRIME REPORTING SECTION, FEDERAL BUREAU OF INVESTIGATION (FBI), U.S. DEP'T OF JUSTICE, INTRODUCTION TO HATE CRIME COLLECTION: TRAINING GUIDE § 1, at 5-6 (quoted in Fernandez, supra note 15, at 287).
n19 113 S. Ct. at 2201.
n20 James Weinstein, First Amendment Challenges to Hate Crime Legislation: Where's the Speech?, 11 CRIM. JUST. ETHICS 6, 10 (1992).
n21 Id.
n22 Steven L. Pomerantz, The FBI and Terrorism, F.B.I. LAW ENFORCEMENT BULLETIN, Oct. 1987, at 14.
n23 NAT'L INST. AGAINST PREJUDICE AND VIOLENCE, THE ETHNOVIOLENCE PROJECT PILOT STUDY 7 (1986).
n24 Kevin T. Berrill, Anti-Gay Violence and Victimization in the United States: An Overview, in HATE CRIMES: CONFRONTING VIOLENCE AGAINST LESBIANS AND GAY MEN 19, 20 (Gregory T. Herek & Kevin T. Berrill, eds., 1992).
n25 Joan Weiss et al., National Institute Against Prejudice & Violence, Ethnoviolence at Work, in 18 J. INTERGROUP RELATIONS 21, 27 (1991-92).
n26 See, e.g., Peter Finn, Bias Crime: A Special Target for Prosecutors, PROSECUTOR, Spring 1988, at 14; Brian Levin et al., Hate Crimes Seminar: Training Module for Patrol Officers (1992).
n27 Howard W. French, Hatred and Social Isolation May Spur Acts of Racial Violence, N.Y. TIMES, Sept. 4, 1989, at A31.
n28 JACK LEVIN & JACK McDEVITT, HATE CRIMES: A STUDY OF OFFENDERS' MOTIVATIONS (1993).
n29 LEVIN & McDEVITT, supra note 14, at 13.
n30 James Garafalo, "Bias and Non-Bias Crimes in New York City: Preliminary Findings," table 7 (Unpublished study presented to the American Society of Criminology, 1990).
n31 National Institute Against Prejudice & Violence, National Victimization Survey (1989).
n32 113 S. Ct. at 2201.
n33 Linda Garnets et al., Violence and Victimization of Lesbians and Gay Men: Mental Health Consequences, in HATE CRIMES: CONFRONTING VIOLENCE AGAINST LESBIANS AND GAY MEN 207, 209 (1992).
n34 Weiss et al, supra note 25, at 27.
n35 See, e.g., Brian Levin, Bias Crimes: A Theoretical & Practical Overview, 4 STAN. L. & POL'Y REV. 165, 178 n. 13 (1992).
n36 N.Y. CITY COMM'N ON HUMAN RIGHTS, END THE HATE 16 (1991).
n37 Brian Levin, Bias Crime Prosecutions are Constitutional, But Difficult, THE PROSECUTOR, July-Aug. 1993, at 15-16.
n38 See NAT'L INST. AGAINST PREJUDICE & VIOLENCE, supra note 23, at 5.
n39 Berrill, supra note 24, at 20.
n40 Donatello Lorch, Death of a 'Lost Soul': A Gentle Man is Killed in his Sanctuary, N.Y. TIMES, Jan. 26, 1990, at B1.
n41 LEVIN, supra note 12, at 11 (Graph: Backlash-New York City Bias Crimes In The Wake of Howard Beach Homicide).
n42 BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, REPORT TO THE NATION ON CRIME AND JUSTICE 24 (2d ed. 1988).
n43 See Chuck Wexler & Gary Marx, When Law and Order Works: Boston's Innovative Approach to the Problem of Racial Violence, 32 J. CRIME & DELINQUENCY 205 (1986).
n44 While we recognize that gender-related crime includes nonviolent criminal conduct such as larceny, burglary or property crimes, our primary focus in this section is on gender-related crimes of violence. We acknowledge, however, that criminals often target victims based on gender for tactical reasons. For instance, purse snatchers surely target women based on their gender (because, in the main, women are the only ones in society who carry purses). However, a statutory scheme for recognizing and punishing criminal activity motivated by pecuniary gain already exists. We focus on violent gender-related crimes because they are the ones most analogous to "traditional" bias crimes, and therefore most likely to be considered gender-based bias crimes if a gender category is to be included in bias crime statutes.
n45 See CENTER FOR WOMEN POLICY STUDIES, VIOLENCE AGAINST WOMEN AS BIAS MOTIVATED HATE CRIME: DEFINING THE ISSUES