Police have yet to identify a motive in the killing of a North Charleston transgendered teen in late January, but the circumstances of the case spotlight a hole in federal hate crime statutes that long-neglected state legislation may fill.
Adolphus Simmons was taking out the trash early on a Monday night when he was shot to death on the steps of his apartment. Police reports note Simmons was dressed in women's clothing at the time of his killing and friends told local press that he often wore women's clothes.
Initial reports quoted North Charleston officials as saying there was nothing to suggest the killing was a hate crime. But the department now says that's because South Carolina has no hate crimes statute. Lt. James Wally says no motive has been identified, and he would not rule out the possibility that Simmons was targeted because of his perceived sexual orientation or gender identity.
"At this point, we haven't ruled out anything or identified anything," he says.
Ninth Circuit Solicitor Scarlett Wilson is awaiting a report from the Department of Juvenile Justice before deciding whether to prosecute the 15-year-old charged with the crime as an adult. Her office also would not comment on a motive for the killing.
The federal hate crime statute does not protect gays and the transgendered from targeted violence, but even if it did, law enforcement and legal officials say it likely wouldn't apply in this case because the accused is a minor, signifying at least one area where federal law would need a companion at the state level to be fully enforced.
Hate crime laws that provide additional penalties for targeted violence have been defended by the courts. None other than former Supreme Court Chief Justice William Rehnquist spoke in defense of hate crime penalties in a 1993 case challenging Wisconsin's law. First Amendment protections for free speech do not protect violence, the famed conservative wrote in the unanimous decision, going on to note that states have the right to protect citizens from actions that inflict greater individual and societal harm.
"Bias motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest," Rehnquist wrote, before quoting Justice William Blackstone. "It is reasonable that among crimes of different natures, those should be most severely punished which are the most destructive of the public safety and happiness."
Federal hate crime laws protect those targeted for violence based on race, color, religion, or national origin. The U.S. House approved a bill last year that would add gender, sexual orientation, gender identity, and disability to that list. The legislation has yet to be taken up by the Senate.
South Carolina is one of five states with no hate crime protections. Two pieces of legislation were introduced in early 2007 but have seen no traction. A House bill authored by Charleston Rep. Seth Whipper would protect victims of crimes based on race, religion, color, sex, age, national origin, or sexual orientation; a similar Senate bill by Charleston Sen. Robert Ford would also include gender identity and disability.
The hold-up in the House is due to Republican Party leaders who are sitting on the legislation while accusing the bill's authors of supporting unnecessarily "enhanced" penalties, says Whipper. These same leaders perpetuate a double standard, supporting enhanced penalties for negligent driving, defacing Confederate memorabilia, and cockfighting, he says.
For example, if someone put two cats in a ring to fight, that person would receive a felony charge for animal fighting and face up to five years in prison or a $5,000 fine. But if it's two birds, there would be an added misdemeanor charge for cock fighting with another year in jail or $1,000 fine. "We feel that human life is worth added protection," Whipper says.
The federal legislation stands a better chance of becoming law, but because the boy accused of Simmons' killing is 15 years old, he would likely not be prosecuted in federal courts. Even if the federal law protected gays and the transgendered from violence, only a state law would apply if he's prosecuted as a minor.
"We typically don't prosecute cases involving minors in federal court," says Kevin McDonald, a spokesman for the U.S. Attorney's office in Columbia, because state authorities have an established relationship with local social services and the local family court.
The state of California has included hate crime charges in the case of 15-year-old Lawrence King, who was allegedly murdered by a classmate last month after King apparently flirted with the accused shooter, 14-year-old Brandon McInerney. Since he's charged as an adult with premeditated murder, McInerney faces up to three years added to his sentence if he's convicted of the hate crime charge.
South Carolina's lack of hate crimes statutes was brought to national attention last spring, after 20-year-old Sean Kennedy was killed in the parking lot of a Greenville night club. Stephan Moller allegedly punched him in the face, knocking Kennedy to the ground. Initial police reports suggested the killing was "a result of the defendant not liking the sexual identity of the victim," but local investigators testified in December that Kennedy's sexuality was not a motive in the case. The charges have been reduced to involuntary manslaughter with a maximum sentence of five years.
Kennedy's mother, Elke Kennedy is now a persistent advocate for hate crime laws in South Carolina and establishing stiffer penalties in cases like her son's. She's also reaching out to communities, particularly teens, to encourage them to find another way to resolve conflicts than to fight it out.
"We've got to pound the street and educate the public that this impacts all people," she says. "Sean's is not the only story. The laws in this state just don't protect the people."
Supporters in the legislature will continue to press for a state hate crimes law, but they need the support of like-minded voters to woo colleagues, says Whipper.
"We need folks to come up and say, 'This is important to me.'"