Since I know lots of people have been following the Megan Williams story, and since there seems to be some confusion about what constitutes a hate crime in West Virginia, I figured I’d write up a little primer on West Virginia’s hate crime statute. Media reports have latched onto the fact that the victim knew at least one of the six people in custody, as if that negates the possibility that this was a hate crime. It doesn’t. More on that later.
West Virginia’s hate crime statute is codified at W. Va. Code §61-6-21 and is entitled “Prohibiting violations of an individual’s civil rights; penalties.” Enacted in 1987, this statute did a few things.
First, it declared that:
All persons within the boundaries of the state of West Virginia have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation or sex.
Second, it created a new crime with a maximum penalty of a $5,000 fine and/or 10 years in prison:
If any person does by force or threat of force, willfully injure, intimidate or interfere with, or attempt to injure, intimidate or interfere with, or oppress or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of the state of West Virginia or by the Constitution or laws of the United States, because of such other person’s race, color, religion, ancestry, national origin, political affiliation or sex, he or she shall be guilty of a felony, and, upon conviction, shall be fined not more than five thousand dollars or imprisoned not more than ten years, or both.
Third, it created a new aggravating circumstance that can be considered at sentencing for other crimes:
The fact that a person committed a felony or misdemeanor, or attempted to commit a felony, because of the victim’s race, color, religion, ancestry, national origin, political affiliation or sex, shall be considered a circumstance in aggravation of any crime in imposing sentence.
Various factors go into the decision of what sentence to impose when someone is convicted of a crime. Some factors might lower the sentence and others might increase it. This law established that when a judge or jury sentences someone for a crime, the sentence will be increased if the crime was committed because of the victim’s race, color, religion, ancestry, national origin, political affiliation, or sex. So, even if the prosecutor ultimately decides not to bring hate crime charges in the Megan Williams case, the issue of racial bias will likely come up at sentencing, assuming they are convicted of some or all of the charges they’re facing.
To decide whether or not to charge the six defendants under the hate crime statute, the prosecutor will look at the elements of the crime, which can be broken down as follows:
- willful use of force or threat of force
- that attempts to or does injure, intimidate, interfere with, oppress, or threaten a person’s free exercise or enjoyment of a secured right or privilege
- motivated by the person’s race, color, religion, ancestry, national origin, political affiliation, or sex
The first element is straightforward and is clearly present in the case of Megan Williams.
The second element requires that the force or threat of force was used in an attempt to prevent someone from exercising a right or privilege guaranteed to them by state law, federal law, the West Virginia Constitution, or the U.S. Constitution. This element is simple to meet, because the hate crime statute itself is a state law that guarantees people the right to be free from violence or threats of violence because of their race, color, religion, ancestry, national origin, political affiliation, or sex.
The third element is the bias element. Nothing in the statute indicates that the crime must be solely motivated by bias or even primarily motivated by bias, just that the crime was committed against that person “because of” one of the listed characteristics. (Note that sexual orientation is not included in that list.)
Were the crimes against Megan Williams motivated at least in part by her race? In my opinion, there’s plenty of evidence from which a jury could conclude that yes, what those six people did to Williams was done at least in part because of her race. According to Williams, they said the word n*gger each time they stabbed her and they also said “This is what we do to n*ggers around here.” And that’s just what we in the public know at this point. She was held captive for over a week, and I’d say it’s highly likely that there were lots of other highly offensive, race-based insults hurled at her during that time. At the press conference last week, Megan’s mother said that Megan had not told her the details of everything that had happened to her. I can’t imagine the trauma of having to relive such a terrifying experience over and over in my mind.
The other piece of evidence that suggests to me that this was racially motivated is the brutal and severe nature of the crime. She was held captive. She was forced to do humiliating and demeaning things. They treated her like an animal. Would they have done these kinds of things to a white person? I don’t know, but the fact is that they did these thing to a black woman and repeatedly called her a n*igger while doing it. Yes, these six people have a long rap sheet that includes many instances of violence, but none of them are of the same nature as this crime.
Last Friday, the NAACP, the Southern Christian Leadership Conference, and church officials met with Logan County Prosecutor Brian Abraham to discuss the charges against the six people in custody. They’ve come out to say that they support the prosecutor and are confident that he is conducting a thorough investigation. I haven’t heard anything more from the victim or her family about this. Today, the AP reports that more charges are going to be filed in this case, but not hate crime charges. The new charges are expected to be additional kidnapping and sexual assault charges. Not all six were charged with those crimes initially.
I think this case (at least what we know of it right now) illustrates the conceptual problems we face in identifying hate crimes. In 2005, the 17 agencies submitting reports to the FBI’s Uniform Crime Reporting program tabulated 47 hate crimes. (see http://www.fbi.gov/ucr/hc2005/table12.htm). Several of us that study this, think 47 to be an artificially low number. In these 47 incidents, an analyst determined that the index crime (homicide, rape, aggravated assault, robbery, burglary, larceny, motor vehicle theft, or arson) was motivated “in full or in part” by bias. The problem comes down to how one deduces such motivation? That has proven to be tricky. Epithets might communicate bias motivation. But they also might simply betray the offender’s limited verbal skills (e.g, `X’ is the only word I can think of at this moment that will hurt you).
A colleague of mine does audits for the FBI. He went to a large midwestern city which reported zero hate crimes in a calendar year. So he asked them to run a query on their database (which contains the narratives from arrest reports) based on a series of hate-terms. [Mainly ethnic, racial, and homophobic slurs]. The resulting record set included more than a thousand incidents. The department officials looked at several of these and suggested that the epithets in these cases were verbal extensions of a fight; they did not necessarily suggest that bias motivated the crime.
We seem to face a similar problem in this case. We have a black woman who was clearly victimized; all of the accused assailants are white. The victim claims that her assailants used epithets. Now if she were snatched off the street like Emmit Till and treated this way, it would be much easier to unambiguously conclude this to be a textbook example of “hate crime.” But it didn’t play out that way and I doubt we’re ever going to be able to sort through these details and know for sure if this woman was victimized because of her race, or if her race is only a coincidental factor.
Don’t get me wrong; race matters and racism is a central organizing feature of modern society. But the concept of hate crime is an inadequate tool to do these problems justice. For the record, if the allegations are true, I hope that these perpetrators spend the rest of their lives in prison and I’m happy to support whichever charge achieves that outcome.
Thanks for your comment, Corey. I agree with part of your comment and disagree with another. You’ve identified the problem — whether using a racial epithet necessarily means the crime was motivated by bias — and I agree that the use of a slur doesn’t necessarily mean it’s a hate crime.
But I disagree with the latter part of your comment. It can be a tough question, and you say “I doubt we’re ever going to be able to sort through these details and know for sure if this woman was victimized because of her race.” That’s what a jury is for — to sort through the evidence and determine whether the defendant is guilty of a crime. I should have spelled this out clearly in my post, but I do recognize that someone could look at the evidence and come to a different conclusion from mine — that the crime wasn’t motivated by bias. My position is that there’s at least enough evidence that it WAS motivated by bias that the question deserves to be presented to a jury.
Just like we look to a jury to determine whether someone killed a person “with malice aforethought” or “in the heat of passion,” we should look to a jury to determine whether a crime was committed because of someone’s race, gender, etc. This is especially true given the rationale behind punishing hate crimes — sending a message of community disapproval. Let the community (through a jury) decide.
A prosecutor brings criminal charges on behalf of the people, and the people whose voices deserve to be heard most loudly on this case — black West Virginians — appear to feel that this crime was motivated by race. In response to this case, black communities around the state are meeting to discuss racism in West Virginia.
I just think that if we have the statute, we should use it. If the prosecutor has some strategic reason not to file hate crime charges (like reserving it in case these people aren’t convicted of the other crimes or don’t get harsh enough sentences), then I can see a reason not to do it, but otherwise, I don’t see any reason not to.
I could be wrong but I’m of the mind that hate crime laws were created so that a larger jurisdiction could ensure that juries of a smaller, possibly less tolerant jurisdiction wouldn’t ‘excuse’ bad behavior. Kind of like federal civil rights violations in the 60’s South.
Regardless of the impetus, I think the use of these laws should require Emmitt Till-like circumstances. If every rape included hate crime status because of victim’s sex then these laws would become ‘pile-on’ charges used for plea bargaining along the lines of conspiracy.
I don’t think this was a hate crime as defined above. This was a vicious, heinous rejection of the weakest member by a defacto family of sociopaths. It appears that Megan got involved with the wrong people and I agree with singleroguefemale’s comparison to “House of 10,000 Corpses”.
I see a change of venue coming with alot of maximum sentences handed down and rightfully so.
I would also like to see more government corruption practices, particularly in the police force, be labled what it truely is, hate-crimes against the population.
So? You have a problem with piling on charges for men who rape? Rape is a hate crime. Women are raped because they are women. Rape causes a general fear among all women. I know we don’t prosecute rape as a hate crime, but it sure fits the definition. Considering the significant underreporting, the low conviction rate, and the low average sentences for rape, I hardly think piling on another charge would be a bad thing.
Red, your point is well taken and I generally agree with your legal analysis. I suppose that I should qualify that my approach hate crimes is as a sociologist/criminologist, not a lawyer. As such, I’m rather cynical about leaving determinations of truth to juries (blasphemy, I know). I served as a petit juror on a criminal case in Detroit several years ago. The process my fellow jurors used to ascertain guilt was mortifying. For at least three of my brethren, that the defendant “looks like a criminal” (a black man with visible gold in his teeth and dreads) was more than enough to satisfy them that he was guilty of being a felon in possession of a firearm for the purpose of a drug deal. [For the record, I thought he was guilty because the evidence lined up that way]. So I maintain, from a strictly academic perspective, the opinion of the jury does not necessarily constitute truth (look at O.J., for someone innocent of murder he’s never been treated as such).
And, I do agree with you concerning case at hand. At least as its been described by the Charleston Gazette and the Logan Banner, it seems reasonable that a jury will conclude that this crime was motivated by bias. I’m just not convinced that the statute is useful. Or, more accurately, I’m not convinced these statues achieve their intent.
As a sociologist, I’m concerned that the modern hate crime statutes lead us afield from the harm they attempt to address. I believe racism (misogyny and homophobia) are serious institutionalized problems in West Virginia (indeed, in the United States). But the law is not an efficient tool to combat these problems. The law leads us to try and infer bias. While the law does distinguish between types of mens rea (e.g., 1st, 2nd, 3rd degree), those distinctions are less nuanced than determining prejudice toward and/or categorical hatred of some group. We’re stuck with reading expressive indicators which result in over-interpretation of some incidents and under-interpretation of others. These legal definitions lead to ridiculously low tabulations of “hate crimes” (imho) which in turn lead some to conclude that racism, or homophobia is not a problem anymore; whereas we *know* that people are harmed and harassed based on their membership in certain groups.
If we’re concerned about systemic racial inequities, perhaps a better indicator is the residential segregation patterns in several of our counties; or employment discrimination practices (which have been duly documented, objections from my colleagues in the School of Business and Economics not withstanding).
I’ll leave it at that and return to lurking. You have an interesting blog which I enjoy very much.
Red,
Don’t think I don’t understand the gravity of rape. What I do not understand, however, is how the underreporting of a crime should affect future prosecutions of said crime. If the qualification of hate crime is at least somewhat about providing a motive, as I believe it is, then the fact that motive is never an issue in a rape case would exclude it from hate crime status.
What I’m saying is that a redundancy of charges not only gives the legal system the chance to allow a perp to plea to lesser charge, it also devalues both crimes.
I don’t see how it devalues either crime. It doesn’t devalue the rape, it actually does the opposite — it highlights the true nature of rape (a crime that men commit against women because they hate women*). I also don’t see how it devalues hate crime, unless you don’t believe something is actually a hate crime unless it’s as horrific as the Emmett Till murder, the James Byrd murder, or the Matthew Shepard murder. I don’t happen to believe that. Why do you believe it’s only a hate crime if it’s that severe? Hate crime statutes are silent on the exact type of crime that’s committed — just that it’s force or a threat of force. Perhaps if we began prosecuting more “minor” crimes, like rape and battery, as hate crimes, we’d see a decrease in the more heinous hate crimes. Do we want to send the message that if you just beat up someone because they’re black we’re not going to prosecute it as a hate crime, but if you kill someone because she’s black, then we’ll consider it?
You know, I do understand that someone could conclude that the crime against Megan Williams wasn’t a hate crime, but if the only thing that’s keeping you (the general “you,” not the Jay “you”
from considering it a hate crime is the fact that they didn’t actually end up killing her and dumping her body in a lake, then you’re going to have to explain to me what the distinction is, because I just don’t get it.
It’s interesting, because you’re advocating (the Jay “you”
reserving hate crime prosecutions for really heinous crimes that would already carry long sentences, while I hear other people advocating reserving hate crime prosecutions for lesser crimes that might not carry an adequate sentence given the circumstances of the crime. So, let’s just never prosecute it then. Why do we have the statute?
As far as how the underreporting of a crime should affect future prosecutions of that crime, well, why do you think certain crimes are underreported? Why wouldn’t a woman report that she was raped? Why wouldn’t a gay man report that he was beaten up? Why wouldn’t a black person report that someone spray-painted a white supremacist symbol on the side of his house? It’s a number of reasons, including embarrassment and shame, and also a feeling that going to the authorities isn’t going to do any good, and in fact may do the victim more harm. And that feeling is not unfounded. So, the way that underreporting should affect future prosecutions is for police and prosecutors and judges and juries and all of us to think about what we might be doing wrong that is discouraging people from reporting certain types of crimes. And taking bias-motivated crimes seriously — including the ones that aren’t as terrible as Emmett Hill or James Byrd — would be a good start.
And no, the fact that finding a motive is not a requirement in prosecuting rape doesn’t exclude it from hate crime status. If it fits the definition in the hate crime statute (which I understand people might disagree with me on), then it’s a hate crime, regardless of how the underlying crime is defined.
* I’m aware that men are raped too (almost always by other men), but the vast majority of rapes are committed by men against women.
Corey, absolutely there are systemic racial inequalities, and the justice system is one of those systems. In fact, it’s one of the more significant ones.
I hear you about lacking confidence in juries. And I know that a verdict does not equal the truth. It’s just that I hear all this debate about whether this or that or the other thing is a hate crime, so instead of just debating it publicly, which doesn’t really accomplish anything, why don’t we start using the statute and see what juries decide?
I’ll take the blame for the misunderstanding but I wasn’t alluding to the severity of Emmit Till’s lynching. It was the fact that he died because he was African-American. A white kid would not have received any punishment, much less murder, for whistling at a woman of any race.
I have to say, Red, that I don’t think there are many non-sociopaths this side of sharia law that do not understand the severity of rape. I bet even Bobby Knight gets it now.
It would devalue rape because it would become a plea bargaining tool not an aggregate sentencing tool and it would devalue hate crimes by becoming a catch-all charge; “he robbed the bank because he hated being broke” is the joke I can hear by people already opposed to hate crime laws.
I think you have a valid point with the underreporting but I’m not sure hate crime status for rape is the way to solve it.
That’s why I think we need more teeth in hate crimes laws. I shudder to think of a circumstance in which folks can plead DOWN to a hate crime.
Red, I have to disagree with your assertion that men rape women because they hate them. I don’t think it’s that simple. Power? Sure. I will never know what it’s like to fuck like a man, and maybe it’s just my grrly nature, but I can’t imagine why you would stick your dick into something you hate.
I think that it is difficult to talk about the fact that there are some truly fucked up people out there. I think it’s difficult to talk about because it forces ourselves to admit we’re not like them. We were raised to value ourselves, to show compassion, to live respectable, productive lives and to not wear white after Labour Day.
In high school, my friend’s dad, who was raised a Lutheran, made a remark at the dinner table, over a discussion on religion, that I have never forgotten. He said, “The gift of god to humanity is the ability to choose whether or not to live or act as an animal or in his image.” I am not a Christian, but that statement has always resonated with me. Those poor sick fucks never knew they had a choice.
Technology and the global economy has decimated the traditional community. Case in point, I’m carrying on a conversation with you, Corey and Jay instead of with my neighbors. Families become more isolted and enabled as dependency on public assistance provides bare necessities so that one isn’t forced to deal with behavorial issues that make actually working difficult. Reliance on assistance does not foster pride, independence or health.
I’m not saying that I oppose taking care of those who can’t take care of ourselves, but I do think the failures here go far beyond a hate crime statute. Our jails are our largest mental health facilities in the state. Adjudication does not treat mental illness and a community that waits to intervene only when it sits on a jury is ineffectual at best.
I don’t know what the answer is to addressing the horrifying collapse of community values (and I don’t mean that in a neo-con sense) but we have to know that this or some other atrocious, vile, hateful crime absolutely will happen again because we’ve left the damaged to fend for themselves and they will do so with brute, ugly force because it’s the only way they know how.
Thanks for the post Red. Love your blog. Now I have to go read Wittgenstein to clear my head.
Its hard to draft a hate crime law that doesn’t punish someone for their ideas. Motivations are usually based on ideas so its a tough line to draw. I’m not sure that maybe we shouldn’t just have tougher domestic torture laws.
I’m proud to say that I’m from a West Virginia County where the local cops would have beat the living hell out of these sorry sacks of shit. That probably wouldn’t qualify as a hate crime, right?
No, it’s not. Those creeps were free to think all the hateful, racist thoughts they wanted and say all the hateful, racist things they wanted, as long as they weren’t raping and torturing and beating someone while doing it. It’s the selection of the victim based on race that is being punished, not the fact that the person is a racist.
Really, that’s an argument that needs to be squashed into the ground. And in fact it has been, by former Chief Justice Rehnquist, no less:
Jay, I think you and singleroguefemale have an overly sunny view of the way people view rape. Unfortunately, lots of people don’t understand the severity of rape, and yes, some men do enjoy sticking their dicks into “something” they hate, that “something” being a woman. In fact, it seems some men specifically get off on it. I can’t imagine why a man would want to stick his dick in a woman who is unconscious, but lots of them do. Actually, I can imagine why, and my conclusion is that it’s because they hate women or, if you prefer, have so little respect for a woman’s desires that we may as well call it hate. Some men will stick their dicks into women who are so drunk they don’t even know what’s going on or who are visibly in pain or who are just lying there frozen in fear. They obviously don’t give a shit whether she’s a willing participant or whether she’s actually enjoying herself, and I don’t know how else to explain that except to conclude that they hate women.
The vast majority of rapes are not committed by psychopathic fucked up men who jump out of the bushes and attack women walking down the street. The vast majority of rapes are committed by men who are known to the women they rape.
I think the reason it’s difficult to talk about all the truly fucked up people out there is because it forces us to admit we encounter people like them every day. We may work with them, live next door to them, be related to them, or even live in the same house with them. I’m not saying we all live next door to people who would do what those people in Logan did, but people who hate minorities, people who hate women, people who would rape, people who have raped…yeah, those people are all around us, unfortunately. And they’re not that way because they’re poor.
OK, maybe my statement was a little rose colored, but you have to admit that our society has made huge leaps in the rape victim stigma area in the last 25 years or so without hate crime laws.
I’m not arguing that rape could not be a hate crime (I don’t think all are, though) I’m saying that the invoking of hate crime laws in rape cases would do more harm than good. If that were to happen then there would be only one demographic not susceptible to hate crime and as a white, heterosexual male I would feel left out. Am I so powerful that I cannot be a legal victim of a hate crime?
I’m not against the idea of the death penalty, I’m against the death penalty because we can’t do it without executing innocent people and this is sort of the same thing. We start with what should be, move on to what can be and try to head off the unintended consequences and I think the unintended consequences would be a further backlash against all hate crimes laws as redundant.
Either way I say Rage On, Red!
I’m fairly certain you’re just making a joke here, however, I will point out that as a white, heterosexual male you are indeed covered by hate crime laws. Everyone is covered by them, which is something that a TON of people don’t get. You’ll hear people asking why it’s worse for a black person to be murdered than a white person, why a gay person’s life is worth more than a straight person’s, whether it’s fair to create special classes of crime victims who are “favored” over others. All of these kinds of arguments miss the obvious point that nowhere in hate crime statutes does it say “because the person is black, a woman, or gay,” it says “because of race, gender, sexual orientation, etc.” It doesn’t specify which race, which gender, or which sexual orientation, etc.
The case I quoted from above is Wisconsin v. Mitchell and is the go-to U.S. Supreme Court case on hate crime laws. That case involved a group of black boys beating up a white boy just because he was white.
I wasn’t joking as much as playing devil’s advocate. I listen to and read the right wing mouth pieces and there is a lot of people against the idea of hate crime laws to begin with and the inclusion of rape or other broad demographic crime would give them even more ammunition. Not to put words in his mouth, but I think the selective use of these laws is one of the reasons Gil Ford has not pushed for them in Megan William’s case. If it could be argued that hate is a motive in all crimes of violence then they will go away and I would hate to see that happen.
Rage On!
Well, but you’re mischaracterizing hate crimes, which isn’t entirely your fault, since we do call them “hate crimes.” They don’t punish hate as a motive for violence, they punish the selection of a victim based on a certain characteristic of that victim. Hate doesn’t actually come into it, except as a shorthand to refer to the laws. A lot of people call them bias crimes, and that’s probably a better thing to call them, since it eliminates the facile argument of “aren’t all violent crimes hate crimes?” Not all violent crimes are bias crimes.
“The vast majority of rapes are not committed by psychopathic fucked up men who jump out of the bushes and attack women walking down the street. The vast majority of rapes are committed by men who are known to the women they rape.”
The vast majority of rapes are committed by psychopathic fucked up men who are known to the women they rape!
Just wait til the war vets come home to inadequate mental health services.
This is a singularly superb discussion of bias-crime laws — deeply informative, detailed, thoughtful, challenging. You’ve especially provided a real service for those of us wanting to know more about the West Virginia statutes. My highest compliments.
Wow. Coming from someone who is somewhat of an expert on this subject and whose every post is informative, detailed, and challenging, that means a lot. Thank you. And thanks for the link.
Raging Red, I am glad to have found this discussion online. I fully agree with your analysis of the hate crimes legislation. I would also like to add, as some have previously, my comments on the intent of hate crimes legislation. It is imperative that the authorities in this case prosecute the treatment of Megan Williams as a crime motivated by racial and gender hatred. The intent of hate crimes legislation, in my opinion, is that authorities and, indirectly, communities recognize hatred in action. In recognizing this case as a hate crime, the authories and the people of West Virginia will send the message that racial and gender hatred will not be tolerated. This must be a progressive, conscious statement about the atmosphere of seemingly normal and innocuous racial and gender bias in the state and in the country.
I enjoyed your response to the comments made about rape as a hate crime. I believe that rape should be prosecuted as a hate crime. It is only through seeing someone as less than human, less than oneself, that such acts even occur in the first place. We have to recognize that.
Most people cannot admit their racial or gender prejudices, so it does not surprise me when there is controversy over the decision to prosecute, in accordance with the words and intent of the law, a horrific act as a crime motivated by such hatred, which breeds from common ignorance, lack of respect for diversity, and bias.
As a lifelong “white” citizen of West Virginia, I think it should be no surprise to anyone here with even a slightly open mind that we do have a certain atmosphere of racial bias and, in some cases, blatant hatred. It is in areas normal to hear people say such things as “I have no problem with black people, BUT, I don’t believe they should marry white people.” This attitude is not seen only in West Virginia. One must recognize that this atmosphere breeds a certain amount of racial intolerance viewed as acceptable and normal by those who don’t know any better. Pushed to the extreme and given room to foster, people will hurt members of the opposite race because of this cultured intolerance.
As a side note, Megan Williams looked very optimistic and empowered at the demonstration on Saturday in Charleston. I am glad that she and her supporters were not deterred by admonishment from the prosecutor, some local groups, and even the NAACP. I am disappointed that so few white people came out to support the cause. I think the fact that the vast majority of supporters were black is a further reflection on the inability or lack of will of much of the white community to join the struggle against racial hatred and discrimination.
Shabazz is Ann Coulter in a Nation of Islam bowtie. That’s why more people didn’t turn out. But I agree that seeing Megan Williams beaming and fixed up pretty was worth it.