The Road Against Hate

The doorbell rang just before 7pm on April 18.

Maria Hurtado opened the door to find two men standing there. They asked to see Lidia Avilés, the 18-year-old girlfriend of Maria's daughter Norma. Whether Norma or her mother immediately recognized either of the men at the door isn't apparent from court documents; still, it was no secret that Lidia had not been getting along well with her family, and in particular with her father, José Alfonso Avilés, who had made it clear he was upset that his daughter was involved in a lesbian relationship with Norma. Instead of having Lidia go to greet the visitors, Norma did so. Shortly thereafter, gun shots rang out; Lidia could hear them from the back of the house. She called 911. When the police arrived and found Norma and Maria dead inside their Southeast Austin home, they asked Lidia who could have done this? Her father, she said.

As it turns out, José Avilés had been feuding with Norma Hurtado for months over her relationship with his daughter Lidia. He'd sent threatening text messages, a friend of Norma's told Austin police in the wake of the double slaying. In at least one text, sent sometime in March, José allegedly threatened to kill Norma and Maria. It appears he succeeded. With help from the U.S. Marshals Service, dozens of police surrounded José within 12 hours of the killing, in a remote area east of San Antonio where he apparently fled after the shooting. Police found a gun in the car he was driving and booked him into jail, where he remains, charged with capital murder – punishable by death or life in prison. (Police have not yet determined the role of the other man present during the shooting.)

News of the double slaying spread quickly across Austin and on the Internet, and a core detail of the case – that José Avilés allegedly targeted the mother and daughter because he disapproved of his daughter's relationship with Norma – led to a swift denunciation of the crime as one fueled by hate. "Regardless of whether it is prosecuted as a hate crime, it was ... motivated by homophobia," said an emotional Elizabeth Brenner, an Austin Human Rights Commission member, at the close of the commission's April 25 meeting. "As a gay person, I find that horrifying."

Whether the killing will legally be considered a hate crime and prosecuted as such is still to be determined. Under Texas law, there is no specific, codified hate crime; rather, Texas statutes allow prosecutors pursuing certain types of cases to ask a judge or jury to make a finding, beyond a reasonable doubt, that "the defendant intentionally selected" his victim "because of the defendant's bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference." If that can be proven at conviction, the defendant's sentence may be enhanced – thus, a second-degree felony would become first-degree, which increases considerably the possible range of punishment.

In the case of the Hurtados, however, there is no greater sentence available: The state can't execute someone twice. The murder of mother and daughter has thus quickly raised serious questions about the efficacy of the state's hate crimes law – does it help to identify and combat bias-motivated crimes? Indeed, does the current law have any real impact? Does it send any meaningful message or serve any real purpose other than a symbolic official response to identity-motivated crimes?

The Byrd Act and Its Aftermath

The current version of the Texas hate crimes statute was enacted in 2001 and named after James Byrd Jr., a black man who in 1998 was killed by three white men in Jasper. The three men dragged the still-conscious Byrd behind their pickup truck, his ankles attached to the truck by logging chain, as they drove several miles down a rural macadam road. Getting the bill passed and signed into law was no small feat. Some in the Texas Capitol argued that passing the law would create a "special" class of victims – "every crime is a hate crime," declared opponents of the measure, including former Gov. George W. Bush, who had scoffed at similar legislation during the previous session. "General [Sam] Houston would have opposed the hate crimes bill," then-Rep. John Shields said before voting against the measure in April 2001. "The general would agree with now-President Bush that every crime is a hate crime."

In some abstract moral universe of simple good and evil, that may be true – yet the Legislature routinely enacts legislation enhancing punishments for certain crimes, often depending on the victim (police officers, children, etc.). On the other hand, much crime is quite often randomly targeted, or motivated by something other than a focused hatred or bias. Someone "picks a house to rob and shoots who's inside," for example, says Travis County Assistant District Attorney Jackie Wood, recently designated by District Attorney Rosemary Lehmberg as the office's official hate crimes prosecutor. And under the current law, prosecuting a crime as a bias- or hate-motivated crime can be tricky, because to do so the state has to prove a state of mind – literally, a motive, which is otherwise not required in criminal cases. "Any time you're trying to prove what is in someone's mind, it's tough," she said. In fact, aside from one case now pending, Wood says she can't remember any specific case that the D.A.'s Office has prosecuted using the hate crimes statute.

In fact, Travis County has not prosecuted such a case since the act became law in the fall of 2001. According to statistics collected by the Office of Court Administration, the statute has only been invoked in Texas 11 times. (Reportedly, only two cases in the state were prosecuted under the older and more vague hate-crimes statute passed in 1993.) In each of those instances, the state successfully made its case, and the hate-crime designation was adopted. But the number of cases prosecuted in the state represents a tiny percentage of the hundreds of hate crimes that Texas police agencies report each year to the Department of Public Safety (numbers collected as a part of the FBI's Uniform Crime Reporting Program).

According to the Department of Public Safety, the number of hate crimes reported by police averages 279 a year from 1999 to 2009 (reported hate crimes spiked in 2001, to 429 incidents, a 50% increase over the previous year); during the same time period, the Austin Police Department reported an average of just 15 hate crimes each year. The majority of those reported to the state are racially motivated, according to DPS stats; sexual orientation and ethnicity or national origin are the other two factors consistently behind bias-motivated crimes.

The discrepancy between the number of crimes reported and the number prosecuted may exist because it's prosecutors, and not police, who ultimately are charged with determining, under Texas law, what is a hate crime. "Whenever a hate crime occurs, there is always a disconnect between the larger community and the police department and District Attorney's Office," says Chuck Smith, deputy executive director of Equality Texas. "The larger community can look at it and call it what it is, where the police department, unfortunately, is put in the position of saying, 'Well, we don't make that determination.'"

Moreover, it appears to Smith and other advocates that hate crimes are generally underreported in Texas as compared to other states of similar population. For example, in 2009 more than 1,000 hate crimes were reported in California and more than 600 were reported in New York, but just 164 were reported in Texas. "We're not sure why that is," says Smith. In part it may be the "difference between cities in Texas and how they report [crimes]. I'm pretty sure it's not because we don't have hate crimes." Indeed, while Austin police note on each report whether there are elements of a hate crime involved, there is no unified reporting form used by the thousands of police agencies in Texas – some, posits Smith, may not have any mechanism for noting that bias has motivated a particular crime. That is in part why Equality Texas has been pushing for the last seven years for passage of a bill that would have the Texas attorney general complete a study of the effectiveness of the Byrd Act. The bill (House Bill 172), carried by Fort Worth Dem Rep. Mark Veasey, has this year again been left pending in committee. As it stands, the makeup of the Capitol "is not favorable" to passing the modest proposal, says Smith, "and for all intents and purposes, it is dead."

A Different Place

State lawmakers may not be interested in delving into the efficacy of the current law, but the city of Austin has in recent months taken a more proactive approach to dealing with bias-motivated crime – in an attempt to "create a community where there is no hate and where there are no hate crimes," said Council Member Laura Morrison, who is one of three members behind the creation of the nascent Hate Crimes Task Force. The idea for a task force populated by high-level community stakeholders – including public officials and members from a swath of social service and community-based nonprofit groups – was born in the wake of the beatings of two men outside City Hall in February 2010.

Matt Morgan and Emmanuel Winston were attacked by four men as the pair walked from a nearby bar toward the City Hall garage; to date, no one has been arrested or charged with the beatings (APD said last week that the investigation has been suspended, pending further leads). The attack prompted Morrison and colleagues Sheryl Cole and Randi Shade to ask the Austin chapter of the Anti-Defam­a­tion League to put together a proposal for what a city-led task force might look like. In December 2010, the group had its first meeting, and then met for a second time – to draft a statement of purpose and a framework for proceeding – just four days before Norma and Maria Hurtado were murdered. The idea is for the group – which includes the D.A. and county attorney, APD, University of Texas and Austin Independent School District police, members of the Anti-Defam­ation League, Out Youth, and other civil rights groups, among others – to identify and develop an approach to dealing with hate-motivated violence "before, during, and after" it happens.

Acting before would attempt to prevent incidents through education and help people to stand up and intervene when they see violence or potential violence, says Candice Towe, executive director of Out Youth (the Austin-based nonprofit which provides counseling and support services for gay, lesbian, bisexual, transgender, and questioning youth in Central Texas). To act during a given episode would be to explore how to present a direct community response to violent incidents, how to efficiently identify and investigate bias-motivated crimes, and how to assist victims in the immediate short term. Finally, in the aftermath of an incident, the question would be how to help both the victims and the larger community recover from bias-based crimes.

The task force is admittedly in its infancy, but so far many members are optimistic that the group can help raise awareness and raise the bar for how the community as a whole not only perceives itself, but also how it behaves. It's the difference between looking at an incident and saying, "'This is horrible' and move on, versus, 'This is horrible, and how can we learn from it?'" says Morrison. "We're getting the pieces in place to get us to a different place as a city."

Two Lives Lost

It's a laudable goal, but these recent incidents, and most tragically the double homicide, demonstrate that the city has a long way to go – and whatever the eventual remedy, it's much too late for Norma and Maria Hurtado. According to those who knew her, Norma was a well-liked young woman. Athletic and funny, she had the kind of personality that drew people to her. She was very self-confident and, with the support and love of her mother, very "comfortable in her skin," as Towe was told by numerous friends and acquaintances who joined together at the Out Youth center in Central Austin for a candlelight vigil just days after the mother and daughter were murdered. "She was very outgoing – and very out," Towe says. "People gravitated to her."

Regardless how the case ends up being prosecuted in light of Texas' limited hate crimes law, APD Chief Art Acevedo says there is no doubt in his mind that this crime was indeed motivated by hate. "Suffice it to say, we know for a fact that the suspect in this case targeted his victims because he was unhappy with the lifestyle" his daughter was living, he said. It was a crime "without an excuse or justification. It was a crime that should not have occurred."