by Sarah Rutledge Fischer
This is the third and final installment of a three-part series by Focus® Middle Tennessee magazine. We have developed this series in the hope that law enforcement and citizens will have a better understanding of the intricacies of our nation’s hate crime law, a law that was written after the horrific deaths of a black man, James Byrd, and a young gay man, Matthew Shepard. These two men were lost to the bias and lack of understanding of a few disturbed people. Because of the Federal hate crimes law, James and Matthew have received some measure of justice.
SPOTLIGHT ON THE OFFICE OF THE SHELBY COUNTY TENNESSEE ATTORNEY GENERAL
When it comes to hate crime, Shelby County Attorney General Amy Weirich’s priorities are no different than for any other type of crime—it’s all about the victim.
“All victims in Shelby County deserve the protection of the law,” Weirich insists. “Race, ethnicity, sexual orientation, any of those factors— we quite frankly couldn’t care less. Our job is to make sure that we hold people accountable and that the victims know what’s going on with the criminal justice system and feel that their voice is being heard.”
In hate crime prosecution, however, this is often easier said than done.
Tennessee law contains two avenues for prosecution of a hate crime—a class D felony charge under the Civil Rights Intimidation statute (Tenn. Code § 39-17-309) and a sentencing enhancement factor (Tenn. Code § 40-35-114(17)).
Both laws require the prosecution to prove that the crime was motivated by bias. Evidence can be statements made by the perpetrator, items left at the scene of the crime, or even text messages and social media posts. But criminals don’t always announce their motives, and without this proof, prosecutors cannot prove it was a hate crime.
Shelby County (Tenn.) Attorney General Amy Weirich says that all victims
deserve the protection of the law. Prosecutors of hate crimes have a more
difficult burden — proving that a crime is motivated by bias.
For crimes being pursued under the Civil Rights Intimidation Statute, the bar is even higher. The felony charge covers “race, color, ancestry, religion [and] national origin” but cannot be used to prosecute a hate crime based on their gender or orientation. Even if the crime was clearly motivated by a covered bias, prosecutors have more to prove.
“We have to be able to prove [that the crime was committed] with the intent by the perpetrator to unlawfully intimidate another and keep them from exercising a right under the constitution,” explains Weirich. “While that may be what’s in the mind of the perpetrator, being able to prove that beyond a reasonable doubt may be the challenge.”
This is why Weirich believes that community involvement in the criminal justice process is so important.
“Nothing is more frustrating for a victim,” she says, “than to find out that witnesses aren’t willing to come forward and testify for us. If we’ve got no proof to present to the court, we have no case.”
She encourages people to call law enforcement anytime they witness something and to stay involved in the process after making that initial contact.
The office has more than two dozen Victim Witness Coordinators who are available around the clock to explain the process and help alleviate the fears of the citizens involved in the criminal justice process. One coordinator is specifically dedicated to reaching out to Shelby County’s Hispanic community. Another, Phillis Lewis, (see Love Doesn’t Hurt, March, 2016) focuses her work on the LGBT community. The office has also recently implemented a community prosecution model that placed prosecutors in three Memphis police department precincts.
“We’re a big urban jurisdiction and a big urban DA’s office, but if we focus on communities, neighborhoods at the precinct level, it gives us a better idea of who and what are the issues in those communities. It helps us bridge that gap and increase the trust between the community and the ‘system.’” Increasing trust in the community increases the odds of obtaining justice for the victims of hate crime, and at the end of the day, justice is Weirich’s priority.
HIGHER EDUCATION CALLS FOR HIGHER UNDERSTANDING
At Austin Peay State University (APSU, pictured above), all incoming freshman take the First Year Experience Course that includes activities focused on the topics of diversity and inclusion.
In some ways a university campus is a microcosm of the greater society in which it exists, and in others it is an entirely separate universe. When it comes to understanding and dealing with hate crimes, this is truer than ever. Across Tennessee, universities are working to help their students confront and understand issues of diversity, privilege and multi-culturalism and prepare them to be strong and positive citizens of the world.
For many college students, leaving home and moving to a university environment may mark the first time they have been forced into close proximity with people whose lives are fundamentally different from their own.
“When you are on a campus,” says University of Memphis (UofM) Vice President for Student Affairs, Dr. Darrell Ray, “it is really difficult for you to not come into contact with diverse thinking, diverse people, people who are different from you—whether it’s because you live in a residence hall with them, you are on a student organization with them, or in a class with them.”
Though many students arrive eager for these interactions and excited about understanding diverse ideas, for others, the suggestion that the way they were raised to think about something may be wrong can feel like a personal affront.
“It’s very hard to help 18-year olds, or any college students, to think that the way that they have been conditioned to think about something may be different or may be wrong,” says Ray. “Some students will think that you are disrespecting their family, because they love their family . . . . So that can be a very difficult transition for some students, depending upon their upbringing and background.”
To ease these conversations, universities work hard to provide students with avenues that facilitate open conversation and understanding.
At Austin Peay State University (APSU), all incoming freshman take the First Year Experience Course that includes activities focused on the topics of diversity and inclusion. In a recent session taught by Stephen Dominy, the university’s Coordinator of Fraternity and Sorority Affairs, students participated in an activity called the Privilege Walk in which students standing in a large field are asked to take steps forward or backward in representation of various advantages that they did or did not have in childhood. Dominy has found that when paired with vigorous discussion, the exercise made a great impact.
“I had two international students, four veterans, some nontraditional students over the age of 25), and a handful of students that are first generation college students. Because of that, they all have very different perspectives on privilege and what that looks like,” said Dominy. “Some conversations got a little bit heated because of things some people have strong opinions on. But at the end of it, the students felt that they walked away having a better understanding of each other.”
School administrators must also look outward when preparing their students to deal with issue of diversity and discrimination. Though University life can often feel like a separate world sheltered from the worries of society at large, the worries of society at large creep in.
“There are things that are happening external to our community,” says Dr. Justin Lawhead, Associate Vice President for Student Affairs/Dean of Students at UofM, “and they tend to bleed into ours. Students get very frustrated that they want this to be a safe community that protects them from what they may be experiencing outside of this community. And it’s difficult to give them that guarantee.”
To help students process and understand issues that are happening on the national and world stage, universities again turn to dialogue and conversation. UofM runs a program called Critical Conversations that invites students to join faculty and staff in panel and tabletop discussions on of-the- moment topics. One recent discussion arose out of the #MeToo movement and addressed issues surrounding sexual harassment and assault. Another was brought about by concern with last year’s riot in Charlottesville, Va. and the NFL “Take a Knee” protest, and addressed issues of free speech and free assembly in the context of protest. At APSU, a similar initiative called Hot Topic Discussions was initially organized by faculty and staff, but really took off when students began to bring forth the topics and discussion frameworks they wanted to see.
“Because of the encouragement of faculty and staff,” said Dominy, “students feel empowered to have those dialogues effectively and openly in an environment where they feel supported and encouraged.”
Conversations like these lay the groundwork for community growth, and that growth doesn’t stop at the campus boundaries. Lawhead likes to remind students that their education happens on campus, but it also happens in the community, and he encourages community members to engage in dialogue with the students whenever they can. Dominy sees the flow of conversation between campus and community happening in both directions as his students graduate and become members of the communities around the university.
“Because we’re educating our students, our students are going out and being those catalysts for change, being those community leaders that are having some of those dialogues that are effectively changing culture.”
In the war on hate crimes against LGBT persons, our community centers are on the front lines. Focus Mid-South spoke with Elokin CaPece, Director of Operations at OUTMemphis, about hate crimes and the Memphis area LGBT community.
OUTMemphis is a key resource for members of the LGBTQ community dealing with hate crimes. How is the view from the front?
The LGBTQ community is diverse in every imaginable way. We are the wealthy, the middle class, the poor, and the homeless. We are of every race, ethnicity, age, gender, and ability level. That diversity means different members of the community experience hate in different ways. No matter how much privilege an LGBTQ person amasses, we are all still vulnerable to hate. That said, the most vulnerable among us are more likely to encounter hate crime. That includes the young, the old, those of us living with disabilities, our community members of color, and our transgender community members.
The front line is an odd place to be. At OUTMemphis, rather than seeing ourselves at the front, we imagine we are at the center of things, at the heart of the community. From the center, our vantage point allows us to see how complicated our community’s experience with hate is. The center itself has experienced hate (hate mail, flag burning, billboard defacement, death threats), and every day we field calls from community members who know that the violence they’ve experienced was motivated by hate for being who they are.
Reporting these acts of hate can often be complicated: Does the officer they encounter recognize this as a hate crime? Was it a hate crime, or a hate incident? Do we want to press charges for aggravated assault, or under the Matthew Shephard Act? It can be difficult to know which choice will provide them with the safety they need.
What is OUTMemphis doing to educate and support the LGBTQ community with regard to hate crimes?
At OUTMemphis, we work to eliminate hate crimes against LGBTQ people and provide survivors justice and safety at every level. At the individual level, OUTMemphis regularly connects LGBTQ community members in crisis with local law enforcement, legal assistance, and supportive services to help with trauma.
Every year thousands of local people are connected to resources over the phone, through email, on social media, and in person at the community center.
At the community level, staff at OUTMemphis make themselves available as resources to members of law enforcement, to support officers who are trying to best serve LGBTQ community members. This takes the form of training, working on local coalitions, and working with individual officers in an effort to build a community that is truly safe for everyone. OUTMemphis staff have trained law enforcement officers, corrections officers at county jails and in federal prisons, and non-profit staff working with clients who are victims of crime. Staff support the work of the local FBI field office through the FBI Multicultural Advisory Committee.
At the state level, OUTMemphis works to raise awareness around hateful legislation, to stop hate from getting a legal foothold in Tennessee. At every opportunity, we work to push beyond tolerance to true, genuine acceptance for LGBTQ people in the Mid-South.
To learn more about the resources available through OUTMemphis, call 901-278-6422, find them online at OUTMemphis.org, or stop by at 892 Cooper Street in Midtown Memphis. See the full interview with CaPece online at focusmidsouth.com. Click on ‘articles.’
For more information on the Hate Crimes Prevention Act, check out the resources available from the Human Rights Campaign at hrc.org/resources/topic/hate-crimes
For information on what the state of Tennessee is doing under its current hate crime laws, check out the Tennessee Bureau of Investigation’s 2016 Tennessee Hate Crime annual report at tn.gov/tbi/article/recent-publications
For more information on current nationwide efforts to strengthen hate crime legislation and reporting at all levels, check out the Matthew Shepard Foundation at matthewshepard.org/
ENTIRE SERIES: AVAILABLE AS PDF DOWNLOAD This is part 3 of 3 of our series. If you’d like to download the complete series in pdf format, go to focusmidsouth.com.
ABOUT THE JOURNALIST: Sarah Rutledge Fischer is licensed as an attorney in both California and Alabama but is not currently engaged in the practice of law. If you are in need of legal advice, please seek individual counsel with an attorney licensed in your state.