Most specifically, Massachusetts law contains a “Hate Crimes Penalties Act” which provides stiff penalties for those who:

• commit an assault or a battery; or, cause damage to a person’s real or personal property
• with the intent to intimidate a person because of sexual orientation as well as “race, color, religion, national origin or disability.”⁵⁷

Massachusetts also has a criminal law which punishes those who:

• by force or threat of force,
• willfully injure, intimidate, interfere with (or attempt to do so), or oppress or threaten a person
• in the free exercise or enjoyment of any right or privilege secured to them under state or federal constitutions or laws⁵⁸. The penalties are higher when force is used than when it is not. ⁵⁹

There are also specific laws concerning vandalism of personal property, homes, and sites of religious worship which are beyond the scope of this document.

In a typical hate crimes case, both sections 37 and 39 are charged, along with another criminal statute (such as assault and battery, or assault and battery with a dangerous weapon, or assault with intent to murder and maim).  Sometimes it is easier to prove a violation of section 37 than section 39 so both are charged.  (Section 37 requires proving only a willful interference with a person’s secured rights, whereas a successful prosecution under section 39 requires that the motivation behind an attack was a particular characteristic of the victim).

In order to track hate crimes, the State has also set up a reporting system so that incidents alleged are centrally recorded^60. To enter an incident of hate violence into the statistics, contact the Violence Recovery Program at Fenway Community Health, (800) 834-3242.

Technical definitions aside, law enforcement officials and others tend to use the following as guideposts for determining whether or not a crime is an anti-gay hate crime.

• Did the attacker use anti-gay language or epithets?
• Was the victim in an area associated with gay people (e.g. outside a gay bar or a cruising area)?
• Have there been similar crimes in the area?
• Did the attack occur regardless of economic motive (i.e., person attacked but not robbed)⁶²?

For support and advocacy, contact the Violence Recovery Program at Fenway Community Health.  In addition to short term counseling for victims, their professional advocates help people understand and navigate the criminal system from police reporting to obtaining injunctions to the various appearances and hearings of the court process.  Their phone number is (800) 834-3242. 

A civil rights injunction is a protection order issued by the court, and typically forbids a person or persons from coming near you (or your home, or school, or workplace, or from telephoning you) because they have been determined to be threatening to you.  To obtain an injunction, you must show that the person interfered or attempted to interfere with the exercise of your secured rights by using threats, intimidation or coercion.  This is not always as easy as it sounds.

You can seek a civil rights injunction with your own lawyer, or you can ask the Attorney General to do so on your behalf⁶³.  The Attorney General’s Office, Civil Rights Unit, is found at (617) 727-2200, but cannot fulfill all of the requests it receives.  In an action you bring on your own, you may also seek compensatory money damages and an award of attorneys’ fees.

A violation of a civil rights injunction is itself a criminal offense.  The penalties for a violation are greater when bodily injury results from the violation than when it does not. ⁶⁴

For further information see GLAD’s publication, Anti-LGBT Violence and Harassment, at http://glad.org/uploads/docs/publications/Anti-LGBT-Harassment-Violence.pdf.

The first of the two laws challenged in GLAD’s case is a more “traditional” sodomy law in that it prohibits anal sex and bestiality.⁶⁶ It can be applied to anal sex between gay or non-gay people, but has often been associated in the public mind with gay men.

The second of the two laws challenged is also a felony which covers “unnatural and lascivious acts.”⁶⁷ The courts have ruled that this law encompasses “oral and anal intercourse, including fellatio, cunnilingus, and other intrusions of a part of a person’s body or other object into the genital or anal opening of another person’s body.”⁶⁸

As a result of GLAD’s case, there are no general criminal proscriptions against adults engaging in particular types of consensual, intimate activity, only a range of laws directed at prohibiting public acts of intimacy.

In a separate, similar ruling in 2003, the U.S. Supreme Court ruled that it is unconstitutional to apply sodomy laws to non-commercial sex between consenting adults in private. ⁶⁹

In order for the conduct to be “public,” it must be in a place where it is reasonably foreseeable that unsuspecting members of the public will come by at the time and place in question.  When the participants act in deliberate disregard of that risk, whether or not they are discovered by the police or another person, their conduct is considered “public.” Or stated another way, if people have secreted themselves behind remote bushes or beyond fences – a place where the individual does not know or reasonably expect the presence of persons who would be offended by the conduct – then there should be no realistic danger to the public.  The criminal sex laws are “not designed to punish persons who desire privacy and take reasonable measures to secure it.”⁷⁰

As a practical matter, regardless of one’s rights, having sex outdoors is a risky business.  For one, based on numerous reports to us, we believe that some police will overlook sexual activity of non-gay people occurring outdoors, but arrest gay people engaged in sexual activity in the same types of venues.  Another concern is that some police “hunt” for gay people having sex outdoors in park lands and rest areas—sometimes in uniform and sometimes as undercover decoys.  Either way, a person can be charged with either of the sodomy laws discussed above, or any other of a variety of sex offenses, some of which may require the person to register as a “sex offender.”

GLAD has challenged these practices by many police departments, and has sometimes helped to develop more constructive policing practices, such as with the MBTA.  Due to a court case filed by GLAD, the Massachusetts State Police have issued training bulletins to all Troopers informing them of the limits of the sex laws in Massachusetts.

Based on case law there is legal precedent supporting your right to a hearing before you are compelled to register for non-violent offenses—such as the offenses listed above.  The 1999 version of the law acknowledges that the law will sweep in some people who are not dangerous and predatory sex offenders.  It has set up several systems allowing for petitions or hearings to relieve such persons from the obligation of re-registering and having the information about them stricken from the system.  For more information, contact an attorney.

Police may, of course, approach a person, and make inquiries, but the officer can neither explicitly nor implicitly assert that the person must respond to their inquiries.⁷⁹ Even if a person has been convicted of a past offense, or fails to respond, or responds in a way which does not satisfy the officer, the person cannot be arrested. ⁸⁰

If an officer has “reasonable suspicion” that a crime has been committed or is about to be committed, he or she may briefly detain an individual, or stop the person for purposes of investigation. ⁸¹ An arrest can only occur upon “probable cause” that a crime has been committed. ⁸²

Complaints to the Massachusetts State Police may be made to State Police Headquarters, c/o Personnel Investigations, 470 Worcester Rd., Framingham, MA 01702.  You can request a form SP 340 from any barracks.  According to State Police Regulations (ADM-14, Jan. 14, 2000), a complainant shall be notified of the receipt of the complaint, and the steps to be taken, be given a status report when requested, and be notified of the final disposition of the case.

Please let GLAD know whenever you make a complaint so that we can track the responsiveness of the various police departments.

In some cases, an individual may decide to pursue a lawsuit—because of injuries, improper detainment, or for some other reason.  These matters are highly specialized, and GLAD can make attorney referrals. People can also register serious complaints with the Attorney General’s Office, Civil Rights Division.