Hate Crime Charges for Eric Rudolph?

Accused serial bomber Eric Rudolph is said to have strongly opposed homosexuals, going so far as to allegedly orchestrate a 1997 blast at a gay club in Atlanta — but he may not face hate crime charges.

Before his capture last weekend after five years on the run, Rudolph was the only prospective hate crimes suspect on the FBI's 10 Most Wanted list. He is accused of setting the Feb. 21, 1997, bomb at the Otherside Lounge, a now-defunct gay and lesbian club. Five people were wounded, some from nails that were packed into the bomb.

But Rudolph, 36, has not been charged with a hate or bias crime … yet. Whether he is prosecuted for the gay bar bombing depends in large part on what happens in Alabama, where he will be tried first for a 1998 bombing at a Birmingham abortion clinic. If convicted, he could face the death penalty.

And the matter could be influenced by the definition of what a hate crime is. Federal hate crime law currently does not cover sexual orientation. Georgia does not explicitly include sexual orientation under its hate crime law, although it defines victims as anyone targeted "because of bias or prejudice."

Officials at the U.S. attorney's office in Atlanta said it was premature to consider filing hate crime charges against Rudolph, who is already facing federal charges in both Georgia and Alabama. And local officials are deciding whether to pursue state charges against Rudolph. If a hate crime charge gets added, it would "enhance" the original charge and could help determine whether Rudolph gets the death penalty or life in prison if convicted.

"Like with any case, prosecutors would have to prove that he targeted the victims out of bias or prejudice," said Erik Friedly, spokesman for the Fulton County, Ga., district attorney's office. "Again, it would depend on what the evidence showed. … But the hate crime would not be a separate charge but would be an enhancement."

Getting Inside Rudolph’s Head

If Rudolph, who is said to have belonged to a white supremacist religious group, was to face hate crime charges for the gay club bombing, prosecutors would need more than his alleged affiliation and beliefs to convict him.

"You would have to prove what was going on in a person's head, and that is always difficult to prove," said Carol M. Swain, professor of law at Vanderbilt University Law School in Nashville, Tenn.

Usually, Swain said, authorities find literature or writings at a hate crime defendant's home that reveal his beliefs and hostilities toward a particular group.

"The intentional selection of a group does not have to be the sole element in the crime but it must be a substantial one," said Brian Levin, the executive director of the Center for the Study of Hate and Extremism at California State University. "Motive is often required in criminal cases."

Rudolph has a brother who is gay, but Rudolph's former sister-in-law said that didn't stop him for directing some of strongest hatred toward homosexuals. Deborah Rudolph told ABCNEWS' Good Morning America Monday that Eric was outspoken in his opposition to homosexuals, allegedly calling them "sodomites."

However, she also speculated that he might have another reason for the various bombings — a motive that might not necessarily prove that his actions were driven by hatred of a particular group but by what he saw as the need to preserve his own race.

"Rudolph belonged to a group of people, Christian Identity, who were very worried about their race," said Swain. "They worried that they were becoming the minority. They're against abortion clinics because they believe they targeted mostly white babies. They hate gays and lesbians because they believe they don't contribute anything to the white race."

Hate Legislation: More Symbolic Than Deterrent

But was Rudolph allegedly more motivated by hatred or a need to preserve his race? And do his alleged beliefs make him a criminal? Almost all hate crime cases face that dilemma, which is part of the core of the debate over hate crime legislation.

Forty-six states have hate crime laws, 29 of which include sexual orientation under their provisions.

"Legislation does not prevent crimes from taking place," said lawyer William Dobbs, a gay activist based in New York. "Too often, I've seen people stress changes in the law and not be fully committed to real change that would need to take place over a long period of time."

Dobbs takes a position not frequently associated with gay activism: He raises questions about the effectiveness or need for hate crimes laws, and he says hate crime statutes could have unintended targets. While some people are physically attacked because of their beliefs, ethnicity or orientation, Dobbs argues, some hate crime legislation could enable others to be prosecuted simply because of their beliefs, not their actions.

"Certain crimes tend to get more attention because of who the victim is," Dobbs said. "Killing is killing, and I believe someone should be prosecuted for their deeds and intent. And with these laws, there is always going to be a group that is left out."

Measuring Effectiveness

The FBI began tracking hate crimes nationwide 12 years ago. According to the agency's most recent statistics, the number of hate crimes reported overall between 1999 and 2000 rose from 7,876 to 8,063, while the number of hate crimes based on sexual orientation had a minuscule drop from 1,317 to 1,299.

However, critics say FBI statistics underestimate the number of hate crimes. State and local law enforcement provide the FBI with their data, but they are not required to file reports with the federal agency. Reporting hate crimes is voluntary for state agencies. And there are no uniform guidelines for determining hate crimes.

Still, advocates said hate crimes laws for gays and lesbians are needed, even if there is no proof that they deter bias attacks.

"There's no way to effectively measure whether these laws have had or have not had a deterrent effect because you are trying to measure crimes that have not been committed," said Seth Kilborn, national field director for the Human Rights Campaign, the nation's largest gay rights organization. "It's important to have these state laws that include sexual orientation because hate crimes against gays, lesbians, bisexuals are the third highest [reported hate crimes] behind those based on race and religion."

Sending a Message

Proponents of hate crimes laws contend that adding a bias allegation to the Rudolph charges could have a symbolic effect for potential copycats.

"It would send a message to would-be perpetrators and to the victims that the state of Alabama and the state of Georgia take hate crimes seriously — which wouldn't be a bad reason to use a hate crime statute," said Jack Levin, director of the Brudnick Center on Violence and Conflict at Northeastern University in Boston.

But Levin also acknowledged that prosecutors could avoid a hate crime charge altogether because it may be too difficult to prove, despite evidence of Rudolph's beliefs.

"Not all hate offenders are stupid enough to verbalize racial or homophobic obscenities to the injured parties during the crime," he said. "Some may use graffiti … but even if the offender does use a racial slur, it may not confirm that the offense is indeed a hate crime."