Late on Monday night a federal trial court in Eastern Kentucky issued an opinion upholding the constitutionality of the Hate Crimes Prevention Act, also known as the Matthew Shepherd and James Bird Hate Crime Prevention Act (“HCPA”).

The case, U.S. vs. Jenkins, may be the first federal sexual orientation-based hate crime case to go to trial, since the other federal hate crime prosecution based upon homophobic violence ended in a plea bargain in August.

Lila Shapiro from the Huffington Post summarized the facts of the case:

In the middle of an April night last year, a young gay man named Kevin Pennington crawled out of the woods in the remote hills of southeastern Kentucky, looking for help. Bruises and cuts covered his face and body and he limped down the road, dragging his ankle along the asphalt, until he reached a pair of empty cabins in a clearing — a ranger’s station — and smashed out a window in one and climbed inside.

Pennington then called 911, setting in motion a series of events that will culminate next month in a historic trial: For the first time, the federal government will prosecute someone for a hate crime aimed at a gay person.

In 2009, President Barack Obama signed new legislation that gave the federal government an unprecedented ability to crack down on crimes motivated by anti-gay prejudice. Next month, two cousins, David Jason Jenkins, 37, of Cumberland, Ky., and Anthony Ray Jenkins, 20, of Partridge, Ky., will be the first to stand trial under that law for allegedly attacking a gay person.

The cousins drove with Pennington in a pickup truck into the mountains around Harlan, where they beat him and kicked him with their steel-toed mining boots, allegedly stopping only to get a tire iron to finish him off. Anthony’s wife, Alexis LeeAnn Jenkins, and his sister, Mable Ashley Jenkins, both 19, looked on and have already pleaded guilty to luring Pennington into the pickup, aiding a kidnapping, assault and the hate crime. The two cousins have not denied beating Pennington and said they were upset over a drug deal gone awry, according to their lawyers.

The defendants moved to have the case dismissed on the ground that the HCPA is unconstitutional.  The judge in the case, Gregory F. Van Tatenhove (a George W. Bush appointee), ruled on Monday, dismissing all of the defendants’ objections.

The first, and most substantial, ground on which the Jenkinses claimed that the HCPA is unconstitutional was to claim that Congress had no authority to pass the law under the Commerce Clause of the Constitution.  Relying on the Supreme Court’s 2001 U.S. v. Morrison decision in which the Court held that Congress had no authority under the Commerce Clause to enact the civil rights remedy contained in the Violence Against Women Act – since gender-motivated violence had not enough nexus to interstate commerce to enable Congress to regulate it – the claim in Jenkins is that there is not enough connection between homophobic violence and interstate commerce to justify Congressional action.

The HCPA was written with the Supreme Court’s decision in Morrison in mind, and it includes jurisdictional language that requires the federal government to show a particular connection to interstate commerce in each prosecution.  The judge in Jenkins found that the Jenkinses “had used a motor vehicle to secret Pennington via U.S. Highway 119 to the remote location where they beat him.”  “Even though the Jenkinses never crossed state lines, their use of a car to secret Pennington to the place where they beat him triggers the “instrumentality of interstate commerce” jurisdictional element of the HCPA.”

(In the only other case deciding a constitutional challenge to Congress’ power to enact the Hate Crime Prevention Act, an Ohio court found that the use of a weapon and the U.S. mail to lure the victim created a sufficient nexus to interstate commerce to render the HCPA constitutional in that case.  United States v. Mullett, 2012 WL 2330905, at *3 (N.D.Ohio May 31, 2012))

Judge Van Tatenhove in the Jenkins case expressed some skepticism about a rule that converted the use of an automobile in the course of committing a hate crime into a matter of “interstate commerce”: “If wholly intrastate non-economic activity can be transformed into conduct that the federal government may punish simply because the defendant used a car or a road to get there, the Interstate Commerce Clause continues to cast a very large shadow, indeed, and very little activity remains in the exclusive province of the police powers of the state.”  But he acknowledged, nonetheless, that this was the law of the Circuit and he was bound to follow it. (If this issue makes its way to the Supreme Court I fear that a majority of the Court may share Judge Van Tatenhove’s view that this is an insufficient connection to interstate commerce to justify Congressional action.)

The second ground on which the defendants claimed that the HCPA was unconstitutional was based on the argument that “the Statute creates special protection for a class of individuals based on the victim’s sexual orientation, which violates the equal protection component of the Fifth Amendment to the United States Constitution.”  This was a pretty easy one to dismiss.  The judge found:  “HCPA § 249(a)(2)’s protections extend to any person who is the victim of bodily injury on the basis of his or her sexual orientation. By its terms, this statute does not provide preferential treatment only to homosexuals, but instead provides equal protection to people of all sexual orientations, which would include heterosexuals.”

Next the judge turned to an objection that the HCPA violated the substantive due process rights of the defendants, which the judge summarily dismissed on the ground that they had not identified a fundamental right that was infringed by the HCPA.

Lastly, and in some ways most interestingly, the defendants argued that the HCPA should be found unconstitutional insofar as it is overbroad and void for vagueness.  Here’s where they got all queer theory-ish.  They claimed that ““actual or perceived . . . sexual orientation” is so vague that the statute should be voided … men of ordinary intelligence cannot understand what it would mean to willfully cause bodily injury to someone because of “actual or perceived sexual orientation.”

Judge Van Tatenhove was not convinced, and wrote: “In support, the Jenkinses provide an internet search that reveals as many as 30 different categories of sexual orientation, proving the term to be so broad that no person would be able to know what was being prohibited.”  “However, as the Government urges, Merriam-Webster’s dictionary defines “sexual orientation” succinctly as “the inclination of an individual with respect to heterosexual, homosexual, and bisexual behavior.” Merriam-Webster’s Dictionary. This simple definition demonstrates that the term “sexual orientation” is not as complex or mysterious in the common vernacular as the Jenkinses suggest.”

The judge having found the statute constitutional, jury selection began yesterday.

One interesting aspect of the case to watch: the sister of one of the defendants who was in the truck during the beating and was alleged to have yelled homophobic threats at Kevin Pennington during the beating, has plead guilty and will likely testify for the federal government in the case.  Her plea agreement is here.

(Thanks to Natan Dotan for sending me the judge’s order on the motion to dismiss and Mabel Jenkins’s plea agreement.)


  1. Judge: Hate Crime Prevention Act is Constitutional. 1st Federal Sexual Orientation-Based Hate Crime Trial Begins http://t.co/S1gzNu6Q

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