Some of the facts about Matthew Shepard’s murder are not in dispute. Nobody questions whether the 21-year-old University of Wyoming student was bludgeoned to near-death with a pistol on the outskirts of Laramie, Wyo., in 1998; that his attackers lashed him to a fence where a passing cyclist later discovered him; or that Shepard died days later from massive injuries.
Another firm assumption has been that Aaron McKinney, with help from Russell Henderson, brutally beat Shepard because he was gay. A play, three feature films, a documentary, and other cultural depictions frame Shepard’s tragic tale as an emblem of the horrors of homophobia. Congress even passed a federal hate-crime law in 2009 bearing Matthew Shepard’s name. But a new book has raised questions—some old and some new—about whether Shepard’s murder was, in fact, a hate crime after all.
“In the course of his reporting, [Stephen Jimenez, author of The Book of Matt: Hidden Truths About the Murder of Matthew Shepard] interviewed over 100 subjects, including friends of Shepard and of his convicted killers, Aaron McKinney and Russell Henderson, as well as the killers themselves,” wrote Aaron Hicklin, editor-in-chief of Out magazine. “In the process, he amassed enough anecdotal evidence to build a persuasive case that Shepard’s sexuality was, if not incidental, certainly less central than popular consensus has led us to believe.”
The Matthew Shepard Foundation dismisses the book as revisionist history based on untrustworthy sources, rumors, and innuendo. The victim’s mother, Judy Shepard, who heads up the foundation, reiterated to an audience in Washington, D.C., on Monday that McKinney’s attack on her son was motivated by hatred of gay people. Yet right-wing media outlets have pounced on the new book, which may provide succor to critics who have previously dismissed the Matthew Shepard Act as empty symbolism.
The logic of an emboldened criticism of the Matthew Shepard Act isn’t difficult to imagine: If the law was already a piece of “feel-good” legislation when his murder was unquestionably considered a hate crime, then a federal law bearing Shepard’s name rings even more hollow if the hate-crime narrative has been exposed as a myth. And assuming that an overwhelming majority of Americans supported the bill because they believed Shepard was a hate-crime martyr, doesn’t the legislation lose its legitimacy if his story is debunked?
In a word, no.
Whatever you think of hate-crime laws in general, there’s no denying that an astonishing amount of hate crime occurs. In 2011, rates of anti-gay violence increased about 2.6 percent nationally, from 1,470 to 1,508 incidents, even as the total number of hate crimes decreased. Crimes against LGBT people accounted for almost 21 percent of all reported hate crimes that year. “Homosexuals are far more likely than any other minority group in the United States to be victimized by violent hate crime,” according to the Southern Poverty Law Center. So take Matthew Shepard out of the equation if you like, because there’s no shortage of other examples of horrific anti-gay hate crime.
The Matthew Shepard Act (officially the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009) also happens to be smart law. It’s robust enough to give federal prosecutors and state investigators more tools to effectively crack down on hate crimes, yet narrow enough to remain within constitutional bounds.
The law lays out two conditions that must be met before federal jurisdiction is triggered in an anti-gay hate crime. First, the attacker must have attempted or caused bodily injury using fire (think arson), a gun, or another dangerous weapon, because of the victim’s actual or perceived sexual orientation or gender identity. Second, the crime must have affected interstate or foreign commerce, or occurred on federal property.
A good illustration of how the Matthew Shepard Act works in practice comes from Kentucky, where four people kidnapped and attempted to kill Kevin Pennington because he was gay. Trial evidence showed that on April 4, 2011, Anthony Jenkins of Harlan County, Ky., lured Pennington into his truck under false pretenses with the intention of abducting and killing him. Jenkins and three other assailants—one man and two women—drove Pennington up a deserted mountain road into Kingdom Come State Park. There, Anthony Jenkins and his cousin David Jenkins reportedly dragged Pennington into the road, beating and kicked him with their steel-toed mining boots while shouting things like, "How do you like this, faggot?" and "Kill that faggot."
While the two men were searching in the back of the truck for a tire iron they intended to use to kill Pennington, the victim ran off the road and threw himself over a ledge, where he hid behind a rock until the group gave up searching for him and drove away. Pennington staggered down the mountain, where he found a ranger shack and called 911, according to the Department of Justice.
When the two women involved in the attack pleaded guilty to federal hate-crime charges, it constituted the first federal convictions in the nation under the sexual-orientation provision of the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act. But even if federal jurisdiction hadn’t been triggered in this case, the Matthew Shepard Act would have authorized the federal government to assist Kentucky, upon the state’s request, with money or other resources to investigate the crime.
The law has also survived a court challenge arguing that it violates the First Amendment’s protection against anti-gay religious beliefs. It reflects then-Chief Justice William Rehnquist’s recognition in Wisconsin v. Mitchell of the reasonableness of laws that mete out enhanced penalties for bias-inspired crime, since such crimes are “more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.” And even if Shepard were not the victim of a hate crime, there’s Supreme Court precedent showing that good law can sometimes emerge from a set of facts that are later discovered to have been inaccurate at the time of the court’s ruling.
The Matthew Shepard Act tells a story of legislative perseverance and judicial resilience. Given its popularity when it was enacted and the fact that nearly every state has passed some form of hate crimes legislation, it seems that whatever further claims and revelations mold the story of Matthew Shepard’s tragic fate, the legacy of this legislation will survive intact.
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