Commentary: Utah needs to reclaim position as a safe haven against hate crime

(Courtesy of Salt Lake County Sheriff's Office) Mark Olic Porter

Last year in Draper, 57-year-old Mark Porter was arrested after shouting racial slurs at a 7-year-old boy and then zapping the boy’s father in the neck with a million-volt stun cane. Charged with third-degree aggravated assault, Porter faced no more than five years in prison.

This September, the state charge against Porter was dismissed to make way for a federal hate-crime charge. Porter now faces a possible sentence of up to 10 years in prison.

Why must the federal government step in to prosecute Utah’s hate crimes, which are defined as being motivated by bias and meant to intimidate or terrorize both the victims and their entire community?

“Utah’s current hate crimes statute is woefully defective. It doesn’t protect anyone,” said Equality Utah Executive Director Troy Williams. The Utah statute applies only to misdemeanors and does not name protected groups. In fact, there has not been a single hate-crime conviction in Utah in the 25 years since it was enacted.

Resolutions calling for stronger hate-crimes legislation in Utah have been passed by Moab City Council, West Jordan City, South Salt Lake City and Beaver County.

“We as a state have hate crime legislation on the books but for years we’ve been hearing that it’s literally unenforceable,” said Moab City Council Member Rani Derasary. “Other communities have been … saying that they would like the state to do more to have legislation that is defensible and among those are the [Utah] Association of Prosecutors, the Utah Chiefs of Police Association and the Utah Sheriff’s Association.”

Efforts have been made in recent years to replace Utah’s weak hate-crime statute, allowing for state rather than federal enforcement, but none have been successful. Last year’s Senate Bill 72, titled Victim Selection Penalty Enhancements, called for a one-step increase in sentencing for crimes committed because of bias toward specific groups. The bill, like 2016’s Hate Crimes Amendments, never came close to becoming law.

Several factors have been blamed for the failure of these bills to gain traction in the Utah legislature. SB72 sponsor Daniel Thatcher addressed one objection with the title of his bill: Victim Selection Penalty Enhancements. “You can’t prove hate,” Thatcher explained. “But you know what you can prove? That someone selected a victim. You can prove they chose them” because of their race, ethnicity, religion or other group affiliation.

Another objection, that hate-crime laws essentially punish thought, ignores the fundamental relevance of intent in criminal law. The difference between murder and manslaughter, for example, is premeditation – a form of intent. In the case of SB72, prosecutors would have been required to prove intent beyond a reasonable doubt.

“You must have an overt action that declares to the world why you did it,” Thatcher said. “It’s those declarations that make this an act of terror against a community.”

The 2016 hate-crimes bill failed, according to sponsor Stephen Urquhart, because discussion was "effectively snuffed out” by the LDS Church’s claim that it could upset the “careful balance” between LGBT rights and religious liberty. This claim was especially perplexing given the fact that Utah was founded by Mormon pioneers fleeing religious persecution.

“We’re here [in Utah] because Mormons were lynched, Mormons were persecuted, Mormons were driven out of states,” said Urquhart, who is Mormon. “That’s worthy of protection.”

Thatcher has said he plans to bring back the Victim Selection Penalty Enhancements bill for consideration in 2018. When he does, Utah’s legislators would do well to remember that our state began as a safe haven against hate crimes. The bill will allow us to uphold that tradition, rather than outsourcing our responsibility to federal law enforcement.

Maxton Cline is an intern with Alliance for a Better Utah. He also works as an intern at the Utah Attorney General’s Office, where he assists attorneys with civil law.