U.S. District Judge Gregory F. Van Tatenhove ruled on October 15 that the federal hate crime prosecution of two Kentucky men who kidnapped and beat a gay man because of his sexual orientation does not violate the defendants' constitutional rights. Although the Matthew Shepherd and James Bird Hate Crime Prevention Act (HCPA), which added "sexual orientation" to the federal hate crimes law, has previously been upheld in other contexts, this is the first time it had been challenged in a gay-related prosecution.
According to Judge Van Tatenhove's summary of the case, David and Anthony Jenkins planned to kidnap and assault Kevin Pennington "because they knew him to be a homosexual." They enlisted two women to lure Pennington into their pick-up truck, with David and Anthony hiding in the back, took him via U.S. Highway 119 to Kingdom Come State Park, "where they restrained and 'brutally beat Pennington while yelling anti-homosexual comments.'" Pennington escaped and alerted law enforcement authorities, who arrested the Jenkins brothers and charged them with attempted murder. The state moved to dismiss the prosecution in state court after the U.S. Attorney General certified that the case would be prosecuted in federal court under federal kidnapping and hate crimes laws.
The Jenkins' principal challenge focused on Congress's authority to pass the law. The statute recites the Commerce Clause as the source of Congress's authority, limiting its application to conduct that involves instrumentalities of commerce. Their challenge relied heavily on the Supreme Court's Morrison decision, which had ruled that provisions of the Violence Against Women Act (VAWA) exceeded Congress's power under the Commerce Clause because it attempted to turn criminal conduct usually subject to state authority into a federal crime without establishing any particular link to interstate commerce.
Judge Van Tatenhove pointed out that the Hate Crimes Prevention Act was in almost every respect similar to the Violence Against Women Act with one important exception. In the Hate Crime Act, Congress limited its application to hate crimes committed using instrumentalities of commerce or crossing state lines. Under precedents of the 6th Circuit Court of Appeals, which are binding on federal courts in Kentucky, a crime that involved travel on a highway such as U.S. Highway 119 using a motor vehicle would come within Congress's Commerce Clause power. This "jurisdictional hook" makes the application of the HCPA to a violent crime constitutional.
The court also rejected claims that the statute was too vague to meet Due Process requirements. The judge found that an ordinary person could easily understand from the statute's language that committing a violent crime against somebody because they were gay — as in this case — comes within the scope of the statute. The court also rejected the argument that Congress was discriminating against heterosexuals or providing special rights for gay people, observing that the statute protects everybody, regardless of their sexual orientation.
The Jenkins also claimed that they were being subjected to double jeopardy by being prosecuted under both the Hate Crimes and Kidnapping statutes. The court pointed out in response that each of the crimes is distinct: kidnapping need not involve infliction of physical injury, and the hate crimes count was based on infliction of physical injury, not kidnapping. Although the hate crime law provides for an enhanced penalty if the hate crime includes kidnapping, the court concluded that this did not impermissibly subject the Jenkins to multiple punishment for the same crime.
The October 15 ruling set the stage for a trial, in which Assistant U.S. Attorney Hydee R. Hawkins will confront defense attorney Andrew M. Stephens in the U.S. District Court in London, Kentucky.