Over the past 10 years, as gay rights advocates have pushed the government to take steps to protect gay people from hate crimes, those arguing for and against such laws have observed that hate crime cases are exceptionally difficult to prosecute. This week, a ruling in the first-ever federal prosecution of a hate crime motivated by anti-gay bias threw still more fuel onto the long-simmering debate.
At first glance, the facts of the case may seem straightforward. In the middle of an April night last year, cousins David Jason Jenkins, 37, and Anthony Ray Jenkins, 20, kidnapped and beat a 28-year-old gay man named Kevin Pennington in the remote hills of Kingdom Come State Park in southeastern Kentucky. Anthony Jenkins' wife, Alexis LeeAnn Jenkins, 19, and his sister, Mable Ashley Jenkins, 20, watched the beating. They later testified that the men shouted anti-gay slurs like "Kill that faggot!" as they meted out the abuse. When the men paused to search for a tire iron to finish off Pennington, the victim threw himself over the side of the road to hide, according to the FBI.
Covered in bruises and cuts, Pennington eventually limped back to the road and dialed 911. "They did it because I'm gay," he told the dispatcher, according to court records. "They said they was going to kill me."
The government alleged that all four Jenkins targeted Pennington because he was gay. This past spring, Alexis and Ashley Jenkins pleaded guilty to the hate crime charges, leading to the first-ever convictions for a gay bias crime under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which was signed by President Barack Obama in 2009.
The men both pleaded not guilty to all charges. Although they didn't deny that a fight had occurred, their lawyers sought to frame the incident as a struggle over a drug deal gone wrong.
Late Wednesday night, after nearly five hours of deliberation, a jury in London, Ky., convicted the Jenkins men of kidnapping and conspiracy charges, but rejected the theory that hatred had motivated their crimes. Andrew Stephens, the court-appointed lawyer for David Jason Jenkins, sounded jubilant on the phone as he recounted the defense's successes, despite the fact that his client still faces the possibility of life in prison.
Stephens credited the failure of the government's hate crime theory to two main factors. First, he said, the evidence dispelled any doubt that a dispute over drugs had played a role in the incident; second, testimony from both women and from Pennington likely convinced the jury that three of the four Jenkinses are themselves bisexual. "There were questions about everybody's sexuality except Anthony's," the lawyer said.
When the trial began, some legal experts thought the government might rack up its first victory in a gay hate crime case. The acquittal has them assessing why the government failed and has added strength to the argument that hate crimes are too difficult to prove.
The story that emerged in the trial was complicated and ambiguous, and that is far from unusual in hate crime prosecutions. "A lot of these cases that look like they are poster cases of hate crime and bias, on close inspection turn out to be much more complicated situations," said James B. Jacobs, a law professor at New York University and one of the leading critics of hate crime laws.
Echoing the closing statement of the defense lawyers, who argued that the government had brought the case for political reasons, Jacobs said he thought it wasn't necessary for the feds to prosecute the case under the hate crime law. "It was a clear case apparently of kidnapping and assault," he said. "That's a very serious crime with a very serious punishment. What's wrong with that?"
Like the other experts interviewed, Jack Levin, a professor of sociology and criminology at Northeastern University and author of The Violence of Hate, questioned why the government had chosen such a complicated case to test the law. In the majority of violent hate crimes, he said, the victim and the attacker are strangers. In this case, all five had known each other for years.
And then there was sexuality of the attackers. "Let's face it," Levin said. "As a practical matter, if you're [the victim and the perpetrator are] in the same group, the jury will be more reluctant to convict someone of a hate crime."
Despite the acquittal on the hate crime charges, he argued, the trial was still a victory for the government.
"The feds get criticized too often for ignoring hate crime investigations," Levin said. "That's why the federal government wins even if the defendant is acquitted. They came up with the charge and took a risk, and now who's at fault for the acquittal?”
He answered his own question: "The jury, not the feds."
Suzanne Goldberg, a professor at Columbia Law School, also described the case as a victory for the government, noting that the defense lost its challenge to the constitutionality of the hate crime law before the trial even began. "It is a big deal that the court rejected the challenge to the hate crimes law," she said.
With two guilty pleas from the Jenkins women and two possible life sentences for the Jenkins men, the prosecution can hardly be portrayed as an outright bust. But hate crime laws are intended to improve society -- to carve out a safe space for minorities by outlawing violence motivated by bias -- and by that measure, some felt the case fell short of achieving its goal.
"I'm not sure the federal criminal prosecution leaves this community in any better shape," said Katherine Franke, a professor at Columbia Law School and the director of the school's Center for Gender and Sexuality Law.
"The law is a very blunt instrument," Franke continued. "It can't tolerate or handle complex questions like the questions of sexual identity and motivation that were present in this case. The law deals much more easily with things like a burning cross, a noose or a swastika -- unambiguous kinds of hateful messages."
If the government really hopes to advance the safety of gay people, Franke continued, its resources would be better spent on social programs like education. Harlan County, the corner of Appalachia where the crime occurred and where the Jenkins live, has been battered over generations by poverty, drugs, environmental degradation and violence of all kinds.
For now, despite the acquittal, the government said it is more dedicated than ever to prosecuting hate crimes of every sort. "I'm very proud of the work of our trial team, and we we will continue to move forward very aggressively and evenhandedly in this area," said Thomas Perez, assistant attorney general for the Justice Department's Civil Rights Division.
Since 2009, when Obama signed the new legislation, the government has successfully prosecuted 13 cases against 37 defendants for a range of bias crimes. This is the first of those cases, Perez said, where the defendants have been acquitted of the hate crime charges.
Under the Obama administration, the government has increased the number of hate crime prosecutions by 20 percent, and Perez said that he expects this tally may continue to rise. "I'd like to report that hate crime prosecutions are going down because the problem has abated," he said, "but the facts do not so indicate, regrettably."