You’ll Have to Stop Calling the Gay-Bashing a Hate Crime

In Pennsylvania, it's just a regular old crime. Here's why.

This is the eye of one of the victims in last Thursday’s attack on two gay men in Center City. His jaw will be wired shut for two months. And given the reports that there were gay slurs used during the attack, we and others have been reporting this as a possible hate crime. Even the Philadelphia Police Department used the term “hate crime” in an early bulletin. But it turns out that the gay bashing was not a hate crime at all, at least not in Pennsylvania.

In 2002, sexual orientation and gender identity were added to the Pennsylvania Constitution as protected classes under the state’s ethnic intimidation law, but the Pennsylvania Supreme Court deemed that addition unconstitutional in 2008 after extreme-right Philly-based activist Michael Marcavage of Repent America filed suit against then-Governor Ed Rendell and others. (Marcavage’s appellate brief to the PA Supreme Court appears below.)

These days, the law includes “malicious intention toward the race, color, religion or national origin,” but there’s no coverage if you are attacked for being gay.

And even though the Philadelphia District Attorney’s Office states in its online FAQ that a “hate crime has been committed” when an attack is because of “a victim’s real or perceived race, color, religion, national origin, ancestry, mental or physical disability, sexual orientation, gender or gender identity,” the District Attorney has now confirmed that this attack is not, in fact, a hate crime, at least not legally speaking.

On Thursday morning, Caryn Kunkle, de facto spokesperson for the victims in the Center City gay bashing, launched a petition to Change PA Hate Crime Law to include Sexual Orientation.

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