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Pocatello Democrat Sen. Edgar Malepeai sponsored a measure last legislative session that would have added the words "sexual orientation" and "gender identity" to the Idaho Civil Rights Act and Human Rights Act. The measure was designed to prevent discrimination based on sexual orientation or identity, but after thousands rallied across the state in support of the legislation, the Senate State Affairs Committee failed to print the routing slip, effectively killing the bill. The vote fell strictly along party lines.
"They put politics before people's lives," Boise Democratic Sen. Nicole LeFavour said.
Passage of the bill would have offered civil-rights protections to people who report hate crimes by making it illegal to fire, evict or discriminate against a person because he or she outed their sexual orientation as part of the police record. LGBT advocates say passage of the legislation could have encouraged more people to report anti-gay hate crimes.
"Legislators keep saying, "We're not going to do it. We're not going to give it hearing. We're not even going to talk about this issue. And that has actually raised the ability and the entitlement for people to commit hate crimes because what the state has actually said is, 'We don't think they are equal to everyone else,'" Hopkins said.
A lack of legal protection adds to the barriers that prevent reporting, Blazak said.
"The main reason that people don't report is they are afraid of the police. They are afraid that the police share the same values as the [assailants]."
Mary joined nearly 200 people at the R Bar in May as they gathered to raise money for Annie's medical care and living expenses. Their numbers stood in solidarity and in stark contrast to the four men who assaulted Annie, but for some, the event brought back personal reminders of unspoken memories.
"This is personal for me," Mary said. She was attacked by four men in downtown Boise nine years ago.
Her attackers saw a tall woman with what Mary describes as Idaho aesthetic sensibilities--short hair (it's an easy 'do for farm work, Mary said) and practical, unisex clothing (duds you can dirty up, Mary said). Between the anti-gay slurs, attacks on her gender and punches, Mary assumed her attacker felt she was neither man enough nor woman enough for their standards. But she could fight like a trained martial artist.
"I was able to get out of a scary situation. But I wasn't fighting. I was surviving. And the police were like, 'Well, she looks more hurt than you.' The cops just said you guys go this way and you guys go that way. I was just trying to figure out what was happening. But I knew it was hate. And I wasn't getting any help," Mary said.
Mary said the police were more concerned with who hit who rather that what was said. Charges were never filed.
"There's a little bit of public-relations work that police have to do to show they are protecting those populations," Blazak said.
Things have changed since Mary's attack, Boise Police spokesperson Lynn Hightower said.
"Police officer training, as far as being more sensitive to victims, is 180 degrees from where it was 10 years ago, from where it was 20 years ago," Hightower said.
Now victims of LGBT-based hate crimes are offered enhanced protections by Boise Police even though they are not covered under state hate-crime statutes. If there is an indication that a crime was motivated by hate, a detective responds, along with a victim's services coordinator, who puts victims in touch with community support services such as counseling and helps them navigate the legal system.
"There are a lot of categories of special victims, children and battered women. But for someone to be targeted because of their sexual orientation, because of their race, because of their religion--that can be an extremely violating, emotional, traumatic thing to go through," Hightower said.
Last fall, social media reports about an escalation in crime directed toward LGBT and talk in the community about unreported anti-gay hate crimes eventually made their way to Boise Police, Hightower said.
LeFavour tweeted in October 2011 about a "horrible rash of anti-gay hate crimes," and encouraged people to report what they see. And after a number of brutal incidents in the summer and fall of 2011--including one reported assault of a tourist from Boston--LGBT activist Duane Quintana called a meeting between law enforcement, LGBT members and U.S. Attorney Wendy Olson to discuss ways to curtail the violence.
The local buzz and concern prompted Boise Police to issue a press release, Facebook posts and fliers encouraging people to speak up and report the violence.
"We got several thank yous for the outreach, but the department did not get a single report," Hightower said.
But enhanced police response doesn't always translate into a hate crime being charged or reported.
"Establishing what is and isn't a bias crime by the police is a difficult thing," Blazak said. "To figure out what the actual motivation is requires an investigation. And sometimes, even though it feels like a hate crime, sometimes it's not if there's not a clear bias motivation. There's that legal side that the police are sometimes asked to untangle. First of all, if you don't have a state law that doesn't protect that class then there's no reason to ask those questions."
Idaho victims of hate-based crimes targeting sexual orientation and gender identity can't look to Idaho law for safeguard or recourse, but federal civil-rights legislation offers some protection. Still, Olson said not all hate-motivated crimes would fit under federal hate-crime definitions.
"These are often random crimes of opportunity. So one of the problems is that often the victims don't know the perpetrators. So victims can't provide information about who participated in the crime," Olson said.
And that information is vital to not only identifying an attacker but digging into the circumstances of a crime. Federal law states that hate crimes must be motivated by some kind of bias. That bias may not always be apparent during an attack and is sometimes gleaned from background investigations into an alleged assailant's character and surface through past statements that they made, organizations that they belonged to, or activities they engaged in, Olson said.
Federal law also defines hate crime more narrowly than many state laws. In order for a hate crime to meet federal definition, it must be commissioned in connection with interstate commerce. In other words, the crime must somehow cross state lines in order for federal agents to have some jurisdiction, Olson said. The use of a cellphone, the Internet, a weapon that crossed borders or the interstate transport of anything used in the commission of a crime could help an offense meet federal guidelines. A crime that disrupts interstate commerce or economic activity could also fall under federal hate-crime law.
Since sexual orientation and gender identity were added to federal hate-crime laws under the Matthew Shepard and James Byrd Jr. Anti-Hate Crime Prevention Act in 2009, three Idaho cases have been reported to the Department of Justice. Two of those cases were dropped and the third is under investigation. The guidelines may not cover assaults such as Annie's, which is still under investigation, but Olson said that shouldn't discourage victims from reporting crimes.
"If there is an assault, call us. Call the FBI," Olson said.
A lack of civil rights, absent protections under state hate-crime laws and narrow federal definitions of hate crimes keep the DOJ and FBI statistics on anti-gay hate crimes low. But Blazak said the fuel behind the numbers--what's reported and not reported--is what kept Mark silent for 20 years: fear.
"There is a reason we have hate-crime laws on the state and federal level. And that's because hate crimes are a form of terrorism. That sounds very dramatic, but the idea is that hate crimes target more than the immediate victims of that crime. They target larger communities," Blazak said.
Terrorism. It's a strong word, LeFavour said. And it's not one the wordsmith-turned-politician uses lightly, if at all in the context of Idaho political debate for LGBT equality. The term carries heavy emotion and the power to polarize, she said.
"I really do think that it's important to call them message crimes," she said. "[Hate crimes] send a message to an entire community."
But a line of sociologists and bloggers have put semantics aside and drawn the connection between gay bashing and waves of fear that have rippled through entire communities.
"Hate crimes are meant to target large groups of people and instill terror in them. They are meant to send a wave of fear throughout a community and a message that 'we don't want you here.' Whether it's a cross burning in a black family's yard or gay bashing, whether it's defined as a hate crime in Idaho or not, the goal is the same--to negatively impact a large population," Blazak said.