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Sexual Orientation Not Included in Ohio’s Hate Crime Law

Posted On: June 21st, 2016   |   Posted by: Luftman, Heck & Associates LLP

The FBI broadly defines hate crimes as a criminal offense against a person or property motivated in whole or in part by an offender’s bias or intolerance on the basis of race, religion, disability, sexual orientation, ethnicity, gender, or gender identity. However, Ohio’s existing hate crime law, referred to as “ethnic intimidation” in the Ohio Revised Code (ORC), is much narrower and prohibits the commission of certain misdemeanor crimes such as telephone harassment and criminal mischief on the basis of gender, race, color, religion, or national origin. More serious violent offenses such as assault or homicide are not covered under Ohio’s hate crime law. Furthermore, Ohio law does not consider hate crimes as a separate offense and instead allows hate crimes to be punishable through penalty enhancement or as a discretionary factor in sentencing.

Ohio’s hate crime or “ethnic intimidation” law does not include crimes motivated by a victim’s sexual orientation or gender identity. In light of the attacks against LGBT individuals at Pulse Nightclub in Orlando, Florida, many are concerned whether Ohio’s law sufficiently protects victims of hate crimes. Additionally, Ohio has a hate crime rate of 4.1 incidents per 100,000 populations, which is markedly higher than the national average at 1.8 incidents per 100,000 populations.

According to a 2011 study by the Southern Poverty Law Center, LGBT people are more likely to be victims of a violent hate crime than any other minority group. These numbers are alarming and are likely higher in reality given the wide-spread underreporting that occurs across the country. In fact, 136 of 843 of Ohio’s local law enforcement agencies haven’t filed a hate crime report. Underreporting is particularly a problem for hate crimes against LGBT people either because laws do not include bias-motivated crimes based on sexual orientation or gender identity or out of fear that they will face discrimination if identified as LGBT.

In 2009, President Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act into law. The federal law includes bias-motivated acts based on sexual orientation and gender identity, but it can only be prosecuted as a hate crime if the offense affects or threatens interstate or foreign commerce. Despite the nationwide push for states to expand protections based on sexual orientation and gender identity, Ohio remains one of 14 states that does not have a law providing legal protections to hate crimes committed against LGBT individuals. However, 27 municipalities, including Columbus, have expanded their city codes to include hate crimes based on sexual orientation and gender identity.

Ohio State Rep. Nickie Antonio, has sponsored legislation, House Bill 569, that would address hate crimes based on sexual orientation, gender identity, and disability, broaden the types of crimes covered under the law, and increase penalties for bias-motivated offenses. Antonio introduced a similar bill back in 2013 after two highly publicized assaults against two gay men at a Cleveland LGBT bar. Although the bill initially had bipartisan support, it never made it past committee. Ohio lawmakers have been reluctant to pass such legislation stating that they are concerned about creating special classes and that hate crimes against LGBT individuals could be difficult to prove.

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