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THE MATTHEW SHEPARD AND JAMES BYRD, JR., HATE CRIMES PREVENTION ACT OF 2009

The Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009, 18 U.S.C. § 249, was enacted as Division E of the National Defense Authorization Act for Fiscal Year 2010. Section 249 of Title 18 provides funding and technical assistance to state, local, and tribal jurisdictions to help them to more effectively investigate and prosecute hate crimes.

It also creates a new federal criminal law which criminalizes willfully causing bodily injury (or attempting to do so with fire, firearm, or other dangerous weapon) when:

(1) the crime was committed because of the actual or perceived race, color, religion, national origin of any person or (2) the crime was committed because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person and the crime affected interstate or foreign commerce or occurred within federal special maritime and territorial jurisdiction.

The newly enacted § 249 has three significant subsections. Subsection (a)(1) criminalizes violent acts (and attempts to commit violent acts undertaken with a dangerous weapon) when those acts occur because of the actual or perceived race, color, religion, or national origin of any person. This section of the statute has a broader reach than existing hate crime statutes. (18 U.S.C. § 245, for example, requires that government prove not only that the crime was motivated by animus but also because of the victim’s participation in one of six enumerated federally protected activities). Section 249(a)(1) was passed pursuant to Congress's Thirteenth Amendment authority to eradicate badges and incidents of slavery. The government need prove no other "jurisdictional" element to obtain a conviction.

Subsection (a)(2) of § 249 protects a wider class of victims. Subsection (a)(2) criminalizes acts of violence (and attempts to commit violent acts undertaken with a dangerous weapon) when motivated by the actual or perceived gender, disability, sexual orientation, or gender identity of any person. It will also apply to violent acts motivated by animus against those religions and national origins which were not considered to be "races" at the time the Thirteenth Amendment was passed. This portion of the statute was passed pursuant to Congress's Commerce Clause authority. Thus, to obtain a conviction, the government must prove that the crime was in or affected interstate or foreign commerce. Subsection (a)(2)(B) of the statute contains a detailed description of the ways the commerce clause element may be fulfilled.

Subsection (a)(3) of § 249 provides for prosecution of crimes committed because of any of the characteristics defined in (a)(1) or (a)(2), whenever such crimes occur within the Special Maritime and Territorial Jurisdiction (SMTJ) of the United States.

The statute criminalizes only violent acts resulting in bodily injury or attempts to inflict bodily injury, through the use of fire, firearms, explosive and incendiary devices, or other dangerous weapons. The statute does not criminalize threats of violence. Threats to inflict physical injury may be prosecutable under other hate crimes statutes, such as 42 U.S.C. § 3631 or 18 U.S.C. § 245. Such threats may also be prosecutable under generally applicable federal laws preventing interstate communication of threats.

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