The fatal beating of 21-year-old University of Wyoming student Matthew Shepard, apparently motivated at least in part by his homosexuality, has renewed the debate over hate crime legislation. The murder prompted calls from gay activists, editorial pages, and public officials including Attorney General Janet Reno and President Clinton for passage of the Federal Hate Crimes Protection Act. This bill would allow federal prosecutions of crimes based on gender, sexual orientation, and disability in addition to the existing categories of race, religion, and ethnicity.

In their recent book Hate Crimes: Criminal Law and Identity Politics Order on-line, criminologists James Jacobs and Kimberly Potter argue that ordinary criminal law provides adequate protection for victims of hate crimes -- a point underscored by the Shepard case, in which prosecutors plan to seek the death penalty for the accused killers. Jacobs and Potter also warn that a focus on the identity aspects of crimes with often ambiguous motives can exacerbate tensions between groups, and they note that hate crime laws raise First Amendment concerns because they tend to punish perpetrators for their beliefs. But apart from the general problems posed by laws that single out "hate" or "bias" crimes, the bill before Congress contains an especially insidious provision: the addition of gender to the existing categories of race, religion, and ethnicity.

Except for one or two sensational cases such as the 1989 massacre of fourteen female engineering students at the University of Montreal in Canada by Marc Lepine, one would be hard pressed to think of a gender-based hate crime comparable to the murder of Shepard or of James Byrd, the black man dragged to his death behind a pickup truck in Texas last summer. Even anti-gay violence is directed at men more than 80 percent of the time.

But many feminists argue that we simply fail to recognize the gender bias in crimes against women, such as rape ("both a symbol and an act of women's subordinate social status to men," in the words of University of Michigan law professor Catharine MacKinnon) and domestic abuse. These theories -- distilled to sheer lunacy in the work of Andrea Dworkin, who believes that women live under "a police state where every man is deputized" and that heterosexual sex is a violation by definition -- may be intellectually stimulating to some, but they are far too speculative to serve as a basis for legislation.

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As for domestic violence, University of British Columbia psychologist Donald Dutton and other researchers have found that wife-beating is far more strongly associated with "borderline personality disorder" (characterized by proclivity for intense relationships, insecurity, and rage) than with patriarchal attitudes; drugs and alcohol are major factors as well. Aside from the much-debated issue of female aggression toward male partners, it is no longer in dispute that physical abuse is at least as common in gay and lesbian couples as in heterosexual ones.

One might point out, too, that male violence is directed mainly at other males. If sexual assault or intimate violence against women are related to gender, surely so are male-on-male attacks caused by real or perceived slights, sexual rivalry, and thrill-seeking. Thugs who rape a woman may also beat up men just for fun, like the teenagers convicted in the notorious 1989 rape of the Central Park jogger. Describing their "wilding" rampage in the park to a detective, one of the teens said that "wilding" meant "going around, punching, hitting on *people*" -- not just women. Yet the attack on the jogger became a paradigm of gender-motivated violence to many feminists; it was cited as such by Helen Neuborne, then-president of the National Organization for Women Legal Defense Fund, in testimony to the Senate Judiciary Committee.

Despite these logical flaws, the radical feminist theory of "gender violence" has made significant inroads in the legal system. In 1994, Congress gave it a stamp of approval in the Violence Against Women Act (VAWA), which allows federal civil rights suits for violent crimes "motivated by gender." The application of VAWA, however, is limited by the fact that it provides only for monetary damages. Such litigation, usually lengthy, doesn't make sense unless there are significant assets to go after. Some VAWA cases involve divorcing wives alleging abuse by wealthy husbands; recently, such a lawsuit was filed against basketball bad boy Dennis Rodman by a Las Vegas Hilton casino employee who accuses him of grabbing her by the sides of the torso and lifting her (which, she claims, caused her underwire bra to be painfully pushed into her breast). Other legal action has targeted deep-pocket entities: A suit filed in December 1995 by Christine Brzonkala, a former Virginia Polytechnic student who claimed that she was raped by two male students, named not only the alleged perpetrators but the college as defendants.

The Federal Hate Crimes Protection Act, by contrast, would open the door to federal criminal prosecutions for sexual assault or domestic violence, particularly in high-profile cases where an acquittal or dismissal in state courts results in an outcry from women's groups. Men accused of these crimes would effectively lose their double jeopardy protections, like the Los Angeles policemen convicted of beating Rodney King. (Under the doctrine of "dual sovereignty," a federal offense is not the same as a state offense, even if it consists of the same action.) However gratifying the resulting outcome of some cases might be, the process is troubling. Moreover, in a "bias" case, the defendant could find himself on trial for having sexist views, watching X-rated movies, or mistreating other women even if they never went to the police.

Testifying for the expanded federal law last June, Assistant Attorney General Eric Holder reassured the Senate Judiciary Committee that very few "gender-motivated hate crimes" could be prosecuted in federal court, since such prosecutions would require proof of "gender-based bias." But, judging from the history of VAWA litigation, which he invoked as a model, the criteria would be broad and elastic enough to apply to any claim of rape or abuse. And that is clearly what the advocates want. At a symposium on VAWA last May, NOW Legal Defense Fund attorney Julie Goldscheid praised the courts for recognizing, "in language that is really heartening to a women's rights advocate, that domestic violence and sexual assault are gender-motivated crimes rooted in the history of discrimination against women."

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Two federal courts have given a green light to civil rights suits under VAWA based on allegations of spousal abuse. One case is pending, while the other was settled during the appeals process. Meanwhile, courts in some of the 17 states with hate crime laws that cover gender have applied those statutes in cases of spousal assault. In 1993, a New Hampshire judge used that state's hate crime law in sentencing a man convicted of misdemeanor assault on his girlfriend, after four other women testified he had abused them while they dated and harassed them after their breakups. There were no allegations that the defendant had assaulted any women with whom he was not intimately involved. Such an approach contrasts sharply with the usual analysis of "hate crimes" based on race or ethnicity, where the fact that the victim is selected at random, on the basis of group membership rather than a personal relationship, is considered indicative of bias.

Many advocates of hate crime laws are less concerned with protecting victims or even punishing offenders than with making a political point about the pervasiveness of bigotry in American life. Still, most acts classified as hate crimes are probably based at least partly on actual bigotry. In case of gender, not only the special treatment of "hate crimes" but the hate-crime label itself -- and the analogy with crimes motivated by racial, ethnic, or anti-gay bias -- is part of an ideological agenda. The goal is to affirm not only that violence against women is a matter of special concern but that it's part of a male war against women. If no one challenges such ideas in the political arena, it's likely that legislators and judges will continue to give them a seal of approval.