CHILDREN'S SAFETY ACT OF 2005 -- (House of Representatives - September 14, 2005)
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Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the requisite number of words.
Mr. Chairman, I want to address some of the misconceptions that arise when we deal with this legislation. I and many of the strongest proponents of hate crimes legislation are also among the strongest proponents of free expression in this House, and I want to be very clear. A belief in free expression means the belief in the right of obnoxious people to say hateful things. This is not an effort to prevent people from engaging in racist or homophobic or sexist insults. I regard that to be a very unpleasant but fully constitutionally protected practice, and there have been mistaken assertions in this.
There was in fact a case in Philadelphia which lent itself to the interpretation that unpleasant speech was being prosecuted. That case was thrown out of court, and it was wrong. Nothing in this law in any way, this amendment that the gentleman from Michigan, who happens to be one of the greatest defenders of freedom of expression in the history of Congress, nothing in this amendment impinges in any way on anybody's right to say or write anything they want.
What it says is that if you commit an act which is otherwise a crime, because the predicate for this is that you have to commit a physical act which would be a crime against a person or property, but generally against a person, that it becomes an aggravating factor if it is demonstrated to be motivated, and the courts have made it clear that you have to demonstrate this is an element of the crime in some way, you must demonstrate that it was motivated by prejudice.
Now the argument is, well, why is one kind of crime worse than any other? Well, in fact, of course, our laws, State and Federal, are replete with examples where the exact same act is treated more harshly depending on the motivation. We have laws that particularly single out crimes against the elderly. We have laws that say if you desecrate one kind of property it is worse than if you desecrate another.
Here is the rationale for this. If an individual is assaulted and the individual chosen for the assault was chosen randomly, that is a very serious problem for that individual, and the crime ought to be punished and the individual protected. But where individuals are singled out for assault because of their race, because of their sexual orientation, because of their gender or identity, and transgendered people are among those who have been most recently viciously and violently attacked, it is not simply the victim of the violent assault who is assaulted. Other people in that vicinity, in that area, who share those characteristics, are also put in fear. And it is legitimate for us to say that when you have individuals being singled out because of a certain characteristic, this becomes a crime that transcends the assault against the individual. It does not mean we do not protect the individual. It means that we go beyond that.
Now there are people who say, look, if you hit anybody, it is exactly the same thing. I doubt their sincerity, Mr. Chairman. Because, as I understand it, under Federal law, if one of us were to be walking out in the street with a private citizen and we were both assaulted, the individual assaulting us has committed a greater crime than the individual assaulting a private citizen. That is, we have one category of hate crimes in that it is a more serious crime to assault a Member of Congress.
Now, by the way, it is obviously not in any way constitutionally inappropriate to denounce Members of Congress. We all know that. So anyone who thinks that when you have enhanced a sentencing by singling out an individual you have immunized him or her from criticism, just look at us. I do not know anybody who is proposing that we get rid of that.
So here is what we are dealing with. We are dealing with a law which in no way impinges on anyone's freedom of expression and says that when individuals are physically harmed in part because of who they are that others who share that characteristic are also put in fear, and that is a way to try to diminish that form of activity.
I should add, too, that we have recently seen more of an outbreak of this sort of violence against people who are transgendered, and it is important for us to come to people's aid.
Of course, when people say, oh, well, this whole new thing is here, of course, the parent of hate crimes legislation is the anti-lynch laws of the 1930s. We tried in the 1930s to pass laws which were Federal hate crimes. The lynch laws were laws that said murder is murder, but where people are murdered for racial reasons in parts of the country where the individuals may not be protected, where law enforcement might be complicit, that is a Federal law.
Now it is true that while this House continuously passed such legislation, the Senate never did because of other things.
But the fact is that the principle of Federal intervention to protect individuals against crimes of violence that are ordinarily State crimes, in those cases where there is a pattern of nonenforcement, which is a predicate again for activity in this bill, goes back to anti-lynch laws, and I think many of us regret that those laws have not been passed.
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