How Hate Crime Legislation Shapes Gay and Lesbian Target Groups: An Analysis of Social Construction, Law, and Policy

• Author: Jace L. Valcore,Mary Dodge
• DOI: 10.1177/0887403416651924
• Date: 01 March 2019
• Published date: 01 March 2019
• Subject Matter: Articles

https://doi.org/10.1177/0887403416651924

Criminal Justice Policy Review

2019, Vol. 30(2) 293 –315

© The Author(s) 2016

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DOI: 10.1177/0887403416651924

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Article

How Hate Crime Legislation

Shapes Gay and Lesbian

Target Groups: An Analysis

of Social Construction, Law,

and Policy

Jace L. Valcore1 and Mary Dodge2

Abstract

Supporters of hate crime legislation argue the laws are a positive development

designed to promote social equality and encourage political participation. Critics

claim the laws are patronizing and disempowering. Existing research addresses

neither the impact of hate crime laws on designated social groups nor attempts to

verify assumptions about legislation and the social and political status of protected

minorities. Sexual orientation, one of the most controversial categories, resulted in

considerable social and political debate. This research explores the addition of sexual

orientation to state hate crime law and how inclusion of this target group affects the

social construction of gays and lesbians. Data are drawn from a sample of 12 daily

newspapers in six states. Content and time-series analyses were used to explore

social construction. The results indicate that inclusion in hate crime protections fails

to have a positive impact on the construction of the group, and the discussion offers

important policy implications.

Keywords

hate crime, policy implications, sexual orientation, social construction

Hate crime is a recent development in criminal law and public policy (Chakraborti &

Garland, 2009; Grattet & Jenness, 2001), having existed as a distinct

1University of Houston Downtown, TX, USA

2University of Colorado Denver, CO, USA

Corresponding Author:

Jace L. Valcore, University of Houston Downtown, 1002 Commerce Street, Suite 330, Houston, TX

77002, USA.

Email: valcorel@uhd.edu

651924CJPXXX10.1177/0887403416651924Criminal Justice Policy ReviewValcore and Dodge

research-article2016

294 Criminal Justice Policy Review 30(2)

category of criminal law for 37 years. Subsequently, the subject represents a new field

for academic study (Green, McFalls, & Smith, 2001) and little is known about the

impacts of the laws on potential victims and offenders, as well as possible residual

effects on society (Meyer, 2014). Hate crime law was developed with the intention of

increasing positive attention to minority groups who were historically harassed, dis-

criminated against, and abused by the criminal justice system and society at large

(Chakraborti & Garland, 2009). In the 1970s, civil rights and victim rights groups

combined their efforts and convinced states to implement hate crime laws that provide

stronger punishments for offenses motivated by bias or prejudice (Grattet & Jenness,

2001). The first state hate crime statute was passed in California in 1978 (Grattet,

Jenness, & Curry, 1998). Today, 45 states have some version of a hate or bias-moti-

vated crime statute, but the form and content of each varies and little is known about

the direct impacts of the laws (Gillis, 2013; Meyer, 2014). This research takes the first

step toward examining the social and political impact of hate crime laws on a target

group—a topic of concern that remains unaddressed.

Literature Review

The need for hate crime laws and their purpose in the United States is still a matter of

debate among scholars, commentators, and members of the criminal justice system.

The original intent of hate crime laws was to increase attention to the problems of

vulnerable and marginalized minority groups and to send a message that bias-

motivated violence would not be tolerated (Chakraborti & Garland, 2009). This sym-

bolic intent may be the most common argument in favor of hate crime statutes

(Gerstenfeld, 2013). The laws were assumed to have a positive effect on minority

groups and to decrease negative treatment by the criminal legal system, but their effi-

cacy remains unknown (Meyer, 2014). Hate crime laws promote a more tolerant soci-

ety by sending a clear message that bigotry and prejudice are unacceptable, and by

placing minority groups on the same plane as majority groups (Franklin, 2002; Grattet

& Jenness, 2001, see also Gerstenfeld, 2013). Mason (2007) further contended that

hate crime laws allow for social justice. Proponents also argued that the unique dam-

age caused by hate crimes could be properly addressed with criminal sanctions and

that minority groups need additional protection (Cogan, 2002; Maroney, 1998).

Early critics argued, however, that criminalizing bias would only exacerbate social

problems, increase resentment of minorities, and draw attention to intergroup conflicts

(e.g., Gerstenfeld, 1992; Jacobs & Potter, 1998). Some scholars stated that criminal

laws cannot solve social ills and the prejudice that leads to hate crimes cannot be

resolved with a prison sentence (Franklin, 2002; Jacobs & Potter, 1998; Maroney,

1998). Critics also contend that hate crime laws are being institutionalized in a legal

system that has ongoing issues with bias toward, and harassment of, minority groups

(Jacobs & Potter, 1998; Jenness & Grattet, 2001; Maroney, 1998), so they may disem-

power, rather than embolden, minorities (Gerstenfeld, 1992). Hate crime laws may

even inspire complacency because policy makers can point to the laws and feel satis-

fied that nothing more needs to be done to combat bigotry (Gellman, 1991).