offense levels for offenses that are hate crimes. 63 It defined hate crime as a crime in which the defendant is motivated by race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation. The Sentencing Commission's implementing guidelines, effective November 1995, provide for an enhancement of three offense levels if "the defendant intentionally selected any victim or property as the object of the offense because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person." 64 While the guidelines list gender as a hate crime category, the application notes which accompany the guidelines state that the enhancement does not apply to sexual offenses motivated by gender bias. In other words, the sentence for rape or sexual abuse is not increased because of gender bias. Perhaps the commissioners concluded that rape already takes gender bias into account.
Congress mandated that in formulating the enhancements, the U.S. Sentencing Commission "shall assure reasonable consistency with other guidelines, [and] avoid duplicative punishments for substantially the same offense." 65 The Commission explained that, in implementing the HCSEA, its goal was to "harmonize the existing guidelines with each other, reflect the additional [hate crime] enhancement now contained in [the guidelines], and better reflect the seriousness of the underlying conduct." 66 In effect, the Commission consolidated the sentencing guidelines for all the federal criminal civil rights offenses. This explains the inclusion of disability and gender in the HCSEA; if those two categories had not been included, offenders convicted of violating federal criminal civil rights laws would receive a lower sentence for targeting individuals based on disability or gender than if they targeted individuals based on race, religion, or ethnicity. This would certainly be offensive to the disabled. Of course, offenders who violate individual rights, unlinked to a recognized group prejudice, will not have their sentences enhanced.
The hate crime laws of the 1980s and 1990s demonstrate the impact of identity politics on criminal law. The new wave of hate crime laws follows in a long line of civil rights legislation that extends special legal rights and affirmative action to groups that are officially recognized as disadvantaged and victimized. The advocacy groups that work on behalf of racial, religious, and ethnic groups, gays and lesbians, and women are judged and judge themselves on their ability to procure legislation that affirms the worth of their members. Such symbolic morale-building legislation often gets top priority.