Dr. Jillian T. Weiss

Why Hate Crimes Charges May Be Appropriate in the Beating of a Trans Woman at McDonald's

Filed By Dr. Jillian T. Weiss | April 29, 2011 4:00 PM | comments

Filed in: Politics, Transgender & Intersex
Tags: Chrissy Lee Polis, hate crimes against LGBT people, McDonalds attack

There have been calls for "hate crimes" charges in the brutal assault on Chrissy Lee Polis in a Maryland McDonald's. Those charges would allow a longer sentence for those convicted of committing a crime, such as assault, found to be motivated by animus against a protected category. In other words, if you commit a crime against someone because of their race, sex, national origin, religion, sexual orientation and/or gender identity, then the sentence received can be longer than usually permitted for the underlying crime.

At the same time, some caution, as writer and academic Yasmin Nair did today in an earlier post, Why Hate Crimes Legislation Is Still Not a Solution, against the use of "hate crimes" charges under any circumstances. The concern there is that the "prison industrial complex already unfairly targets people of color, queer, and gender-non-conforming people for incarceration. Those picked up via HCL are disproportionately people of color and economically disenfranchised. Furthermore, hate crimes legislation does little to nothing to actually discourage crime."

I agree with Ms. Nair on those points - but I disagree that the conclusion is that hate crimes charges are always inappropriate.

"Hate crimes" laws are an attempt to understand that there is a further injury to one who is targeted as a crime victim because of their race, sex, national origin, sexual orientation, and gender identity. Hate crimes have a long history, well before the United States was a glimmer in anyone's eye. In the United States, there were, as is well known, many hate crimes against African Americans and people of color during slavery and in the Jim Crow period, and these are still the most frequent motivations for hate crimes today. While these crimes often have the effect of putting an entire community in fear of criminal activity if they leave their socially-designated geographic area, or are too public in their dealings, oftentimes, however, hate crimes are looked at as simple assaults, unless there is major and permanent bodily injury or death. That means the crime is punishable by a relatively small maximum jail time, much less is often imposed, and many times the crime may not even be prosecuted, as many prosecutors are overburdened by much more serious crimes. In Maryland, the lowest level charge generally given for assault is reckless endangerment, punishable by a maximum of 5 years in jail. Second degree assault, the next level up, carries a maximum penalty of 10 years, but requires proof of impairment of physical condition, excluding minor injuries. For a first offense, there is often no jail time imposed. The purpose of the "hate crimes law" is to make it clear that the law takes such crimes seriously.

Under the 1969 Federal Hate Crimes Act, a person can face a fine or imprisonment of up to one year, or both. If bodily injury results, or if acts of intimidation involve the use of firearms, explosives or fire, individuals can receive prison terms of up to 10 years, while crimes involving kidnapping, sexual assault, or murder can be punishable by life in prison or the death penalty. Of course, most such crimes would be charged under state law, so the Federal Hate Crimes Act would not apply. Its effect in such cases is mainly to give the federal government the power to bring charges when state or local officials decide that such crimes are not worth their time.

I agree with my colleague, Yasmin Nair, that our criminal justice system incarcerates a very disproportionate number of people of color. From my academic reading, this appears to be a result of combined factors such as the urbanization and enhanced surveillance of people of color, the ability of people in suburban and rural areas to hide their crimes more easily, assumptions by prosecutors, judges and juries that people of color are guilty for reasons other than the objective evidence in a case, and plea bargain opportunities given to white defendants that are less often extended to defendants of color. This disproportionate incarceration of people of color has many devastating effects on our society, such as removing a large portion of young persons of color from color, breaking up families, removing economic and social supports from mothers and children of color, barring many people of color from voting because of felon disenfranchisement laws, and a dozen other effects I have read about that I can't easily put into this space. If you're wondering what I'm talking about, look at the case of the Jena Six. That's an example of the type of thing that goes on every day in our system. White criminals get off, black criminals go to jail.

We must also consider the effects of homonationalism, the basic idea of which is that intolerance of the LGBT community is used as an opportunity to demonize other communities that have been slower to adopt the relatively recent liberalized acceptance of sexual minorities. Rather than working on education, then, some people use the lower social status of people of color and ethnic minorities to demonize them as savages, and gain agreement from a majority culture which is only slightly less intolerant and then only in public. As an example, there were so many racist comments on Bil's post about the McDonald's assault that even he, who has seen much of the dark underbelly of the LGBT blogosphere, was shocked and saddened.

Nonetheless, while I agree that our system is, at least, a racialist system, if not a racist one, I think those issue ought to be attacked head on and addressed. Hate crimes laws are relatively rarely used, and are not going to appreciably increase the prevalence of incarceration of people of color.

Who and what we should be attacking are the ideas of people like Oklahoma Representative Sally Kern, who said yesterday on the floor of the Oklahoma Senate that people of color are in prison in higher numbers because they didn't study hard in school. We ought to be attacking the idea that people of color are in prison in higher numbers because they commit more crimes. We should be critiquing the factors that make our criminal justice disproportionately prone to putting people of color in prison and not white criminals.

Crimes against people of color, against gay and transgender people - that are directed against them specifically because of their identities (which is part of the definition of a "hate crime") - should be recognized as more than simple assaults or robberies or manslaughter. These are crimes that have the effect of not only harming the victim physically and psychologically, but of harming others in the community who have to fear for their safety every time they go out of their residences. Frankly, I think about it every time I go to a public restroom, whether at work, at a restaurant or at any public place.

I've been lucky so far. But I couldn't even watch the video of the beating of Chrissy Lee Polis. I've been the target of pointed fingers and glares, and angry people who seemed ready to cut loose on me. It was too close to home. There but for the grace of God go I.

N.B. Based on one of the comments from our astute Projectors, below, I changed the title to reflect that hate crimes charges may be appropriate, since my discussion was meant to respond to the point, discussed in Yasmin Nair's post, that hate crimes legislation is always inappropriate.


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Egads! What is this? A disagreement on an issue in the queer community in which people offer their differing points of view and then present evidence to support those points of view!

Now, this is a truly "historic achievement!" This is what a queer liberation movement looks like.

Kathy Padilla | April 29, 2011 4:43 PM

"Those picked up via HCL are disproportionately people of color and economically disenfranchised."

http://www.bilerico.com/2011/04/why_hate_crimes_legislation_is_still_not_a_solutio.php#comment-253346

The above linked comment would seem to contradict that statement - do you have evidence to the contrary?

Hi Kathy, sorry for my delayed reply -- I was away for the weekend at a synagogue retreat. In response to your question as to whether I have evidence to support the proposition that "Those picked up via HCL are disproportionately people of color and economically disenfranchised." -- I do not have any evidence to support it. Your question made me stop and think. While I do believe that our criminal justice system arrests people of color in disproportionate numbers generally, I really don't have any evidence that, specifically with regard to hate crimes law, people of color are being arrested in disproportionate numbers. I should have picked that up and noted my disagreement with that point of Yasmin's.

The McDonald's incident may have scared you from using a restroom, but the intent of those teenage girls was not to incite fear in other transgenders from using public restrooms.

How does the McDonald's incident fit your definition of a hate crime, unless the girls had a motive for inciting this fear?

Random violence can frighten a populace to change its behavior, but does that make it a hate crime?

That doesn't make any sense. Are you saying that fear has to be spread throughout a community before it is a hate crime?

While judging intent is fraught with difficulty in any case, it seems to me to be pretty clear (as clear as can reasonably be expected) that they did intend to send the message that trans women should not use the women's room. They may not have used the language of "trans women" or even known of language, and they may not have consciously thought through how their actions would be taken by other trans women or how it would effect our behavior -- but when they appoint themselves guards of the boundary of the women's bathroom, assaulting someone based solely on trans status and the expectation that she shouldn't have been in the women's room, how else are we to interpret their behavior?

Some of you are for hate crimes, some of us aren't.

I'll stick to what I believe; Ethnic, religious or other demographic should not warrant a different penalty or prosecution under a fair and equal system of justice.

I agree with Tobi's answer to Geena's point that the women involved in the attack did not have the intent to frighten trans people. They may not have had the specific intent to frighten anyone other than Chrissy Lee Polis. Nonetheless, the cause of the attack appears to have been the use of a women's restroom by a trans woman, and an intent to send the message to Ms. Polis that trans women should not use a public women's restroom.

Nicely done. I'm so glad we're all discussing this. I really think it's worth talking about.

I'm going to reprint my comment from Yasmin's post:

I think we all agree more than we think we do. Hate crimes terrorize not just an individual but an entire community, reverberating with all of us, and we want to stop them.

I remember getting an anti-gay threatening letter in my locker in high school, bringing it in to the principal, and him telling me that since I didn't know who wrote the note, he couldn't do anything, since he didn't have anyone to punish. I feel like HCL is a similar conversation on a larger level.

What would it look like if we talked about prevention instead of punishment ("enhanced" or not)? Regardless of one's position on HCL, what can we do BESIDES HCL to prevent hate crimes? Would it help to include the queer community in history courses, as California is proposing to do? What about advertising, as has been discussed here recently? If not HCL, then what?

Similarly, regardless of one's position on HCL, what can we do to help victims of hate crimes like Polis? What community infrastructure can we (or have we already) put into place so as to not reinvent the wheel with each new incident?

If I felt like we had more answers to these questions, I would be more comfortable rolling back HCL, which I agree gives too much power to a profit-driven and unproductively punitive prison-industrial complex.

So glad for this discussion!

That fear is exactly why I believe hate crimes self-evidently fall within the definition of domestic terrorism. Terrorism is "using violence or the threat of violence to coerce others in pursuit of political or social objectives."

I can't even imagine a way to conceptualize hate crimes falling outside that definition.

I think both Yasmin and Jay Kallio make very good points. I have to agree with Yasmin that what the world needs now is not laws, more laws; love sweet love, maybe, but not laws, more laws. I think the point Deena made about the motives behind the beating may have been a little more complex than they've been portrayed. It seems to me the real hate and intimidation involved was the way it went viral and Vernon Hackett's comments. This case does have its Tyler Clementi aspects.

The thing that I find so disturbing are Hackett's comments about how "that was a man" and the comments found at various news sources. The - - "I don't care if __ had ___ _____ cut off, it still doesn't make ___ a woman" -- kind of comments. I find it ironic how open to question opinions like that are just about everywhere. They ARE found just about everywhere. I'm reluctant to make exceptions. Then there are the racist comments. I think if Polis had been black, the same sort of incident would have erupted. In fact, so little is known about the specifics of the case, it is more than possible something like that would have happened to a natal woman. The girls just would have had to find another justification for their meanness. Wouldn't it be a bitter irony if those girls we charged with black on white hate crime charges based on racial motives?

I think we need better anti poverty programs, a moratorium on new laws, repeal of many older ones, changes in sentencing guidelines, an end to privatization of prisons and a total reassessment of how to go about crime prevention. I can tell you from the personal experiences of those I am close to, that without good legal representation you can find yourself in a lifetime of deep trouble. Guilt is not an either/or proposition. There are degrees. I have no doubt the legal services available to those girls will be far less than adequate. It could be difficult for them to get a fair trial. What makes someone so mean, anyway?

Jay Kallio | April 29, 2011 9:46 PM

I want to disagree that we don't need more laws. Laws are the only recourse that the poor and disenfranchised have in our society, where otherwise wealth buys recourse in the event of injury, as well as respect, well being, rights, and privileges. The rich can buy what they need, and are treated as valued, worthy members of society, given trust, authority, and the benefit of the doubt. The rich can buy their safety, walk through life with impunity, and do not have to otherwise prove their worth.

Without wealth, life takes a decidedly more stark, harsh turn. That is why we need legislation that affords equal protection under the law. If one cannot buy the safety to walk down the street, use a bathroom or drinking fountain, hold hands with a loved one, marry the person one loves, etc., then laws must be enacted to provide that equality. The issue is not that laws are inherently bad, the issue here is uneven and selective enforcement, especially in a situation where someone makes a profit by the incarceration of others. That problem needs to be addressed, but the basic benefit to the disenfranchised in society must be maintained, and without money, one needs the rule of law as recourse. No other source of power is available.

I will be among the first to say that even that flimsy recourse often fails, when adequate legal representation is unavailable, since Republican rule has defunded many pro bono legal resources.

No one wants to be victimized simply for being who we are, in a society where the majority despise us and will not give us a fair shake no matter what the circumstance, no matter how great the injustice. We empower ourselves by advocating for equal treatment. Without the ability to hold others accountable for their unjust actions, we no longer have any power at all.


I'm not a Rand Paul libertarian as far as these matters are concerned.

This is a very telling chart from the NY Times, however:

http://www.nytimes.com/imagepages/2011/02/19/opinion/19blowcht.html?ref=opinion

No country listed on this chart even comes close to the incarceration rates that the U S does. I don't think it very ironic that the law and order push began as a reaction to the riots in Watts and other cities in the U S. Nixon won his election on a law and order platform that amounted to little more than racist fear. Things, of course, escalated during the Reagan years particularly after the death of Len Bias. Much of the ramping up of the law and order approach to dealing with social problems has affected many more than just people of color but it has had a much worse affect on people of color than any other portion of the population. There is something drastically wrong here. More laws simply are not working. This is the end result after forty years.

Actually, I am for equality legislation. I am worried, however, how it is going to pan out for people of transsexual history. I think it's important for us to be protected on the basis of sex not a "gender identity disorder". Hate crimes? I actually tried to get involved in the campaign to have gender identity and expression added to the local state hate crime laws. The campaign was being run by a bunch of young gay men from the local state college. I was treated like a fifth wheel. When I mentioned the kind of protections intersex people needed, I might as well have been talking about protections for space aliens.

Really, why should someone who is legally recognized in a particular sex need protections for gender expression that is congruent with that sex? It's really a gay, lesbian and, I guess, transgender issue. Once self recognition is confirmed and a commitment to go through a process has also been confirmed, a person should be considered transsexual and that state should not be considered a permanent one. Medical and economic obstacles should be considered an aside, not central to a transsexual person's being. It's the suggestion that people who are supposed to have gone through their legal and physical sex changing process need protection on the basis of gender identity and not sex that is the root of discrimination. It only provides justification to those who would discriminate against us.

Of course, the confusion is compounded when the labels, transsexual and transgender,are equated with each other.

Jillian who exactly do you want to charge? Do you have the statements made by the 18 and 14 year old attackers after their arrests? Did they confess to attacking Chrissy because they knew she "has a history"? Or did they simply say "that bitch has been after my man for weeks"?

Perhaps you have been privy to the statements the BF made to the investigating officers.

Surely you have some sort of heretofore undisclosed information that will help clarify this situation. Please share it.

So you're saying that Chrissy Polis was lying when she said that her attackers referred to her as a man and spat at her? Or you're just assuming that what she said in that video interview is all she said to the press?

Thanks, Jillian, for your thoughtful response on a very serious issue. As a Colorado transwoman, who transitioned on the job in the town where Angie Zapata was so brutally murdered, I am comforted in the knowledge that every day her murderer is behind bars is another day that he will not be murdering me or other transwomen in this state. I am offended by the suggestion that those guilty of hate motivated violence or murder should be freer to commit more violence on the basis of precariously constructed theory. GLBTQ organizations that so dogmatically oppose hate crimes statutes should perhaps consult with families and loved ones of the victims.

I supported Colorado HR1014, which added GLBT protection to our bias motivated crime statute, and the Federal Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act for four reasons--

- Intent behind a violent crime, mens rea, matters, as it has through centuries of common law tradition.

- A hate crime is more than a crime against a single individual, it is an act of terrorism against an entire segment of society.

- Hate crime laws do not create special status for minorities, they help level the playing field by filling loopholes that historically have left crimes unreported, unprosecuted and unpunished.

- Hate crime laws clarify that prejudice is no excuse for violence, assault and murder.

I have to disagree with this statement: "then the sentence received can be longer than usually permitted for the underlying crime".

It is my belief that hate crimes extend the punishment in order to bring the punishment into parity for what would normally be given had the victim not been a protected minority.

Let me explain how it is supposed to work in Tennessee...

Let's say Mr. Redneck beats a gay man until he's almost dead and that in that jurisdiction he could normally expect a sentence of 6-10 years.

However, because the victim was gay and the sheriff has bias against gays, and fails to adequately investigate, or the prosecutor, for the same animus against gays, fails to adequately prosecute the cuts a plea deal for an 18 month sentence.

A judge is supposed to recognize the animus and impose a sentence on parity with what would normally be expected for the crime.

In other jurisdictions where the investigator or prosecutor has the power to pursue a case as a hate crime from the outset, the additional resources given for the investigation and prosecution should be used to overcome community bias during the investigation or offset leniency by a bias jury in order to bring the sentence on parity to what would normally be expected for the crime.

I guess that is my point of view. To often, people that are against hate crime laws express their reasoning as and equal crime in two different circumstances should not be treated differently. I agree. However, they BELIEVE that the white heterosexual Christian attacker is the one getting the shaft by hate crime laws, when in fact, without them it is the protected minority that is getting the shaft. With the hate crime laws, we can only hope that the punishment is close to what it should be in any other case, but as history has shown, people that attack LGBT usually get off with a lighter sentence.

Jillian,
I have sen another article on the web where it says the same 18 year old black woman beat on another woman at the same McDonald"s. Also Chrissy Polis said she thought they were spoiling for a fight and it didn't matter who with. I think Hackett is the big jerk that said and posted the very worst discriminatory comments. I see a huge problem with the American Legal system and the way both politicians/attorneys interpret the constitution. Why not simply say it covers everyone instead of doing the same thing by passing hatecrime legislation. All I care about is that if someone commits a crime against me they get the same punishment as anyone else.Motive doesn't really mean crap if you get your ass beat or wind up dead.I do think we need to look at what is really free speech though. If someone is saying something that can get you killed or is calling for someone to physically harm or touch you that shouldn't be free speech it should be labelled hate speech and carry penalties based on the level of risk of serious harm to others.

Bill Perdue Bill Perdue | April 30, 2011 5:23 AM

Hate crimes laws, unless they're specifically and pointedly aimed at providing easy prosecution and harsh punishments for cult and political bigots simply miss the point. The current hate crimes laws were crafted to ignore the origins and instrumentalities of bigotry. Beyond that, hate crimes laws will always be ineffective in a society ruled by the rich who rely on bigotry to stay in power.

Violence against GLBT folks, people of color, immigrants and women is, first and foremost, an instrument of rightwing violence meant to bully people into submission. Bigoted violence, including the kind of harassment that leads to suicides, are products of a centuries long attempt by the rich to deflect the anger of those they victimize. One of the key goals of bigots is to divide working people and set them at one another's throats.

The origin of widespread bigotry and hate crimes is the incessant repetition of anti-LGBT propaganda by superstitious cults, especially abrahamic judaists, islamists and christers. Beyond that, although many are afraid to say so, bigotry and its attendant violence is condoned and encouraged by rightist politicians like Obama and most congressmembers who'd deny our right to marriage based on cult beliefs that skygod jebuz is 'in the mix' and who refuse to pass inclusive ENDA or CRA laws.

We won't be able to deal with violence in any meaningful way if we're in the swamp - in the same parties as the bigots. Like unions and others currently under the gun the way forward will have to begin with a combination of independent political action and organized self defense.

In the final analysis bigotry and violence can't be solved by parties like the Democrats or Republicans whose allegiance is to the rich, not to working people in all our diversity.

Regan DuCasse | April 30, 2011 9:44 AM

I only in part agree with Dr. Weiss that people of color are incarcerated more, and for the reasons she listed.
But there is also the matter of personal and communal accountability when crimes are committed in the first place, ALSO disproportionately in communities of color.
As we speak, the police chief called for a modification of the impound law for people driving without a legal license. Of course, illegal immigrants are more affected because there are a higher percentage of them driving without a license. But the law STILL applies to everyone, you can't drive a car without a driver's license, registration or insurance.
There is no reason to create a two tier system where the law abiding are more subject to the consequences than someone chronically breaking those laws.
The two girls in this video are black. One of them has a history of violence and attacking without provocation. Clearly they are teenagers, but should it make a difference in how their case is adjudicated BECAUSE they are black, and blacks are disproportionately incarcerated?
Should they NOT go to jail because of some misguided pity for such black teenagers?
The incidents of gang murders, domestic violence, drug use and child neglect are matters that cannot be helped by lessening the consequences of what are moral choices within each family and individual. I am a black person that grew up in the South Central area of Los Angeles, the daughter of a probation officer and social worker respectively. I know from personal experience AND from working in law enforcement exactly how things devolved to where they have.
There is a limit to how much blame can be thrown at 'the prison industrial complex'. And plenty that can at the lack of personal responsibility being taken.

These teenage girls had a choice, they chose to act viciously and mercilessly and whether they were black, Latina or white: there is no excuse for them. However poor or black they are.

Indeed, since black people have more at stake and insist that there are factors stacked against them, they have more incentive to NEVER gamble in the first place with said system.

Om Kalthoum | April 30, 2011 10:10 AM

Wait a sec. You say you haven't watched the prime piece of evidence available to the general public? And yet you have formed an opinion regarding what sort of charges should be brought? Yikes!

Also, I may have missed it (although I did read your entire piece) but I don't see where you discussed this actual case, what sort of hate crime you think occurred, and why you think hate crime charges are warranted in this case. The title of the piece states your conclusion, then you seem to go off on a tangent and forget your whole premise.

Om, after thinking about your point -- that I didn't discuss this actual case -- I changed the title to reflect that hate crimes charges may be appropriate, since my discussion was meant to respond to the point, discussed in Yasmin Nair's post, that hate crimes legislation is always inappropriate. I was rushing to get it done and didn't think the title through carefully.

twinkie1cat | April 30, 2011 1:04 PM

I don't think hate crimes against gay people have any relationship to poverty or race. In fact I would dare say that more advantaged people are more likely to commit them. Poor people usually assault someone to 1) rob them 2)because they have perceived they have been disrespected 3)in domestic violence situations. Politics are not normally an issue and should not be affected by sexual orientation unless the victim is perceived as trying to "steal her man". Women get very hot if a transgender, especially one who looks better than they do, takes an interest in their baby daddy or eye candy. Political crime is a factor of having enough so that you have time to worry about the color of a person's skin or how they are equipped below the waist. If the girls beat the transwoman because she is trans they should be charged with a hate crime. That is the purpose of hate crime laws, to protect vulnerable groups. Verbal abuse, however, is not a hate crime and uneducated people often do not know when to keep their mouths closed and live and let live.