Workshop Probes Hate Crimes and Bullying Laws

New York, Sept. 25, 2012—Outrage at the invasion of privacy by Rutgers University student Dharun Ravi, who spied by webcam on the sexual encounters of his gay roommate, Tyler Clementi, turned to shock for civil libertarians when they realized Ravi faced a possible 10 years in prison under hate crimes laws.

Activists and academics working on hate crimes and bullying laws took a hard look at policy and reality in the first “Theory Meets Practice” Queer Theory Workshop, part of six public conversations sponsored by the Center for Gender and Sexuality Law. Co-facilitator Professor Katherine Franke, the Isidor and Seville Sulzbacher Professor of Law and director of the Law School’s Center for Gender & Sexuality Law, said the sessions look at how queer theory impacts problems that activists struggle with every day. 
 
The seminar on bias dove into an area of intense public attention. “There’s a pervasive reality of harassment or bullying of difference, and the difference we’re particularly talking about is sexual orientation and gender identity,” said Urvashi Vaid, director of the Engaging Tradition Project at the Center for Gender and Sexuality Law and workshop co-facilitator. “Is policy the best vehicle to deal with that and what are the practical limitations?” asked Vaid, a community organizer, writer, and attorney who has been a leader in the LGBT and social justice movements for nearly three decades. 
 
Richard Kim, a commentator on gay rights and executive editor of The Nation, said he opposes all hate crime laws, and that the Ravi case exposed a gap between the reasons why they are passed and what they actually do. “We are told the narrative about the need for hate crimes laws as a policy to address violence against LGBT people, against minorities, against religious groups. And that narrative is the narrative of a violent criminal who is highly ideologized, or motivated, and commits a murder or a kidnapping or an incredibly violent assault,” said Kim.
 
The Ravi case involved none of these elements, but was powered by an ill-informed media firestorm after Clementi’s suicide. Kim’s research showed that hate crime enhancements were not added to any cases of murder, rape or manslaughter in New Jersey in 2010, and those crimes already carry stringent penalties. Instead, the majority of hate crimes in the state attached to cases of harassment or criminal mischief, 27% to 75% of them involving juveniles. “A teenager who paints a swastika on a car would go to jail for 10 years—that is the typical application of this law,” said Kim.
 
Bullying policy differs from harassment and assault, and civil penalties are effective in moving schools to action, said Eliza Byard, executive director of Gay, Lesbian and Straight Education Network (GLSEN). Bullying, she said, should be understood as a dynamic with three parties—perpetrator, victim and bystander. Bullies target those who are least likely to be defended by peers or authorities, including gay and gender nonconforming students.”

 “The policy remedies we look to are about putting in place a basic expectation for adults in the school community which requires them to do their job–which is to respond.” GLSEN’s legal package calls for schools to engage in “naming, training, reporting and funding” to stop bullying. The federal Safe Schools Improvement Act would require schools receiving federal funds to adopt these measures. In May, Maine became the 15th state to enact an anti-bullying law with enumerated protections that include sexual orientation and gender identity.

Dean Spade, a visiting professor at the the Law School's Center for Gender and Sexuality from Seattle University School of Law, expressed concern about measures that add to policing youth of color. “What I’m interested in is: What actually makes you safe? A friendship network? Leadership circles?”
 
Ultimately, all policies bump up against limitations, said Byard: “That’s when the rubber hits the road of societal prejudice.”
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Future “Theory Meets Practice” sessions will address criminal justice, queer citizenship, immigration and race.
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