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Hate Crimes Bill heard in Kansas Senate Committee

Yesterday in the Kansas State Senate Judiciary Committee, a hearing was held on SB128, which would make adjustments to the current Kansas bias-crimes (“hate crimes”) statute.  The current statute, which includes sexual orientation among its protected classes but not gender identity, has been rarely enforced since a 2000 US Supreme Court ruling limiting the ability of judges to impose harsher sentences than those set out for a particular crime.

Despite our repeated requests to the senator who drafted the bill, SB128 failed to include gender identity as a protected class.  For that reason, Equality Kansas, along with the ACLU Of Kansas, took a “neutral” position on the proposed legislation.  The exclusion of certain domestic violence crimes, and continued questions about enforceability and constitutionality, were also reasons cited by Equality Kansas in our decision not to support the bill.

You can find the full text of the bill here:  http://kslegislature.org/li/b2017_18/measures/sb128/

Committee testimony from our executive director, Thomas Witt, follows:


Neutral Statement of Thomas Witt, Executive Director

Relating to SB128, increasing criminal penalties for hate crimes and establishing reporting requirements for law enforcement agencies.

Senate Committee on the Judiciary

March 8, 2017

Greetings Mr. Chairman and members of the committee –

Our statute providing enhanced sentencing for bias‑related crimes was first enacted in the early 1990’s.  As originally written, it permitted the trial judge to impose an upward departure from the sentencing grid, potentially doubling the presumptive sentence.  This sentencing method was found by the US Supreme Court to be unconstitutional in Apprendi v New Jersey, 530 U. S. 466 (2000) (syllabus attached).  In Apprendi, the Court ruled that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt.”

Our Kansas statute was then amended to comply with Apprendi.  However, due to the cost and difficulty of re-empanelling a jury for enhanced sentencing, the current bias crime law is rarely, if ever, enforced.

Equality Kansas supports bias‑crime legislation.  We believe that violent attacks based on immutable characteristics or faith practices are not just attacks on individual victims, but are meant to terrorize, intimidate, and instill fear in the broader class of people who share the characteristics of the individual victims of a bias crime.  We believe enhanced sentencing of persons convicted of committing bias crimes sends a powerful message of deterrence to others who would target victims based on protected characteristics, which currently include “race, color, religion, ethnicity, national origin or sexual orientation of the victim” (K.S.A. 2016 Supp. 21-6815).

While we generally agree with the overall intent of SB128 and applaud the efforts of the proponents to correct the enforceability issues, we are unable to support this specific bill for two reasons.

First, SB128 does not include “nongrid” crimes, such as domestic battery.  From the Kansas Sentencing Commission’s “Kansas Sentencing Guidelines Desk Reference Manual 2016,” page 25:

NONGRID CRIMES

Certain felony offenses are classified as nongrid offenses, (not to be confused with off-grid offenses) which are not assigned a severity level and are not subject to punishment pursuant to the sentencing grid.

These offenses each contain specific penalties and other provisions within their respective statutes. Each of these crimes has a corresponding special sentencing rule which must be checked on the Special Rules Supplemental Page of the Journal Entry and Presentence Investigation Report when applicable.

These crimes are:

  • felony driving under the influence, K.S.A. 8-1567, (Special Rule #6)
  • felony test refusal, K.S.A. 2016 Supp. 8-1025, (Special Rule #39)
  • felony domestic battery, K.S.A. 2016 Supp. 21-5414, (Special Rule #8)
  • animal cruelty, K.S.A. 2016 Supp. 21-6412 and harming or killing certain dogs, K.S.A. 2016 Supp. 21-6416. (Special Rule #21)

Families are no haven from bias-motivated violence.  Attacks on family members because of one’s sexual orientation, choice of religion, or relationships with others (such as dating a person of another race or religion) are not uncommon, and should be included in this bill.

Of greater concern to Equality Kansas is the failure to include “gender identity” in SB128.  “Sexual orientation” has been in the statute since its enactment, and we support and appreciate its continued inclusion in this bill.  However, we view the inclusion of “gender identity” to be critical to our support of SB128.

Transgender Americans have increasingly become victims of bias-driven violence.  Since the US Supreme Court ruling in 2105’s Obergefell v Hodges recognizing the right to same-sex marriage, transgender rights have become the targets of those who would choose to discriminate against others based on their sexual orientation or gender identity.

The National Center for Transgender Equality has released 2015 U.S. Transgender Survey, examining the experiences of transgender people in the United States, with 27,715 respondents from all fifty states, the District of Columbia, American Samoa, Guam, Puerto Rico, and U.S. military bases overseas (executive summary attached).  In their survey, they found that:

  • One in ten (10%) of those who were out to their immediate family reported that a family member was violent towards them because they were transgender;
  • While in school (K–12) 54% of respondents experienced some form of mistreatment, including being verbally harassed, physically attacked (24%), and sexually assaulted (13%) because they were transgender. 17% experienced such severe mistreatment that they left a school as a result.
  • In the workplace, 46% of respondents were verbally harassed and 9% were physically attacked because of being transgender. During that same time period, 10% of respondents were sexually assaulted.
  • Nearly half of all respondents (47%) were sexually assaulted at some point in their lifetime.

We strongly urge this committee to amend this bill to include nongrid crimes such as domestic battery, and to include “gender identity” as a protected class.

Thank you for your time and attention, and for your consideration of this important legislation.

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