Federal Anti-Gay Hate Crimes Law Gets First Test In Kentucky

HARLAN COUNTY, Ky. -- In the middle of an April night last year, a young gay man named Kevin Pennington crawled out of the woods in the remote hills of southeastern Kentucky, looking for help. Bruises and cuts covered his face and body and he limped down the road, dragging his ankle along the asphalt, until he reached a pair of empty cabins in a clearing -- a ranger's station -- and smashed out a window in one and climbed inside.

Pennington then called 911, setting in motion a series of events that will culminate next month in a historic trial: For the first time, the federal government will prosecute someone for a hate crime aimed at a gay person. 

In 2009, President Barack Obama signed new legislation that gave the federal government an unprecedented ability to crack down on crimes motivated by anti-gay prejudice. Next month, two cousins, David Jason Jenkins, 37, of Cumberland, Ky., and Anthony Ray Jenkins, 20, of Partridge, Ky., will be the first to stand trial under that law for allegedly attacking a gay person.

The cousins drove with Pennington in a pickup truck into the mountains around Harlan, where they beat him and kicked him with their steel-toed mining boots, allegedly stopping only to get a tire iron to finish him off. Anthony's wife, Alexis LeeAnn Jenkins, and his sister, Mable Ashley Jenkins, both 19, looked on and have already pleaded guilty to luring Pennington into the pickup, aiding a kidnapping, assault and the hate crime. The two cousins have not denied beating Pennington and said they were upset over a drug deal gone awry, according to their lawyers.

But Pennington, who declined to be interviewed for this story, has said, according to court papers and others who have met with him, that he was beaten because he was gay and that all four of his assailants shouted things like "How do you like this, faggot?" and "Kill that faggot" During a lull in the beating, Pennington made a run for it, diving off into the side of the road and into the woods. He hid until his attackers drove away.

Months later, the federal government began an investigation that led to the hate crime charges against the Jenkins clan. Some activists have applauded the government's move, noting that the new laws are meant to protect the vulnerable and arguing that gay people are more exposed to such crimes than members of any other group.

In practice, however, hate crime laws remain controversial and prosecuting such crimes may prove difficult. Despite an apparent jailhouse confession by one of the Jenkins men, details of the crime itself remain murky. Nobody contests that the Jenkinses beat Pennington. But did they beat him because he was gay? As various accounts of what happened that night have emerged, and indeed, as Pennington himself has offered up multiple versions of the story, the facts of the case have grown even more ambiguous.

In the end, only the Jenkinses may know what was in their minds that night and what they intended to do, and that's the first problem, said opponents of hate crime legislation. A second concern is broader: Not unlike early civil rights legislation, the new law is supposed to legislate social conduct -- to carve out a safe space for gay citizens by outlawing homophobic violence. But how easily and effectively can the government enforce the new law?

"Hate crimes are about sending messages," said Jack Levin, a professor of sociology and criminology at Northeastern University and author of the book "The Violence of Hate." "The perpetrator sends a message not only to the primary victim but to everyone in the victim's group, ‘You could be next.’ So as a society, we have to send a message back." But Levin acknowledged that such cases are very challenging to prosecute, explaining that it’s very hard to determine what’s in someone’s heart.

TINY MINING TOWNS

Harlan County is about a two-and-a-half-hour drive from the nearest city with an airport, along a road that twists and turns through quiet hills. It's one of the poorest places in America and one of the most beautiful. The luxuriousness of the landscape -- an unending carpet of foliage that rises on all sides, enclosing roads in vivid, green lushness -- is pockmarked with billboards advertising personal-injury lawyers, drug-treatment centers and evangelical TV stars. The only restaurant open late at night is a knockoff of the Waffle House, where, locals say, miners and their girlfriends pop pills in the bathroom. There are no bars, but 116 churches. One resident offered a succinct list of the places where people hang out: "church or jail."

In town last month, few people had much to say about the looming trial. The Jenkinses have not spoken to the press and could not be reached for comment. The victim cut off contact with the press after an interview with a reporter from the Lexington Herald-Leader. The Harlan paper seemed to have barely noticed that a momentous trial would soon be taking place in its backyard and covered only the occasional development as the case moved through the courts.

But one person in Kentucky was talking about it to anyone who would listen -- and even to those who would not. Jordan Palmer, the president of a group called the Kentucky Equality Federation, first spoke to Kevin Pennington the summer after the attack when, according to Palmer, Pennington called him and said the state prosecutors were not doing their job. Prosecutors had not called him with updates and he had begun to suspect that they weren't taking the case seriously.

Pennington is a frail looking, 29-year-old with a wispy goatee. Locals who know him describe the part-time maintenance worker as shy and unassuming. According to Pennington's statement to local law enforcement officials, what happened on the night of April 4, 2011, was this: Mable Ashley Jenkins, known as Ashley, stopped by his mobile home with Alexis Jenkins; they asked him to go for a drive with them and their boyfriends. He had known the women for a long time and followed them into the truck. But before they had driven far, a light flickered on and he realized he knew the two men sitting in front: David Jason Jenkins, who goes by his middle name, and Anthony Ray Jenkins. He knew they were trouble and he asked to get out.

They didn't let him. Instead they drove into the mountains, up past the fresh piles of coal and skeletal outlines of machinery looming over mine openings and into a state park called Kingdom Come. Jason Jenkins sat in the passenger's seat. Pennington later told the FBI that as they drove, Jason told Pennington to "suck his dick" and said he was going to rape him. The truck stopped abruptly and Pennington used his hands to brace himself, but the Jenkins men pulled him out. Then they beat him.

In September, Palmer shot off a press release announcing that he had notified the Justice Department of a Harlan County hate crime. He wrote that the victim had asked him for help and insisted to the Justice Department that in the small rural communities of southeastern Kentucky, “justice rarely prevails." Like the rest of the South, Kentucky has a constitutional amendment banning same-sex marriage and civil unions; it has no statewide anti-discrimination laws protecting gay citizens. And while Kentucky is one of many states that has passed their own laws against hate crimes motivated by gay bias, its version of this legislation is much weaker than the federal government's. In Kentucky, a hate-crime charge can remove the possibility of parole but does not increase the length of a sentence.

The political situation for gay residents was especially bad in the tiny mining towns of southeastern Kentucky, Palmer wrote to the Justice Department. The population was bigoted and elected officials were afraid for their jobs, he said. Federal agents began examining the case, and in April the Justice Department announced its indictment.

It's not hard to see why federal officials might have viewed Pennington's case as a good opportunity to test the power of the new law. The day after the Jenkinses beat Pennington, Jason Jenkins seemed to suggest to his wife on a recorded phone call from jail that he and Anthony had been planning to kill Pennington. She asked what they had against him; he replied he's a "faggot." If not for this phone call, the Jenkinses might have faced five- to 10-year prison sentences. Now that the federal government had stepped in, they might end up spending the rest of their lives in prison.

It took gay rights advocates and proponents of hate crimes legislation many years and several presidents to get the 2009 federal hate crime law passed. President Bill Clinton's attempt was blocked by a Republican Congress; then George W. Bush came to the White House and said he would veto any hate crime legislation that crossed his desk. Finally in October 2009, at a press conference in the White House attended by the parents of Matthew Shepard, a young gay man who died after two men beat him and tied him to a fence in Wyoming, President Barack Obama proclaimed that "no one in America should ever be afraid to walk down the street holding the hands of the person they love."

The new law gave the federal government the right to prosecute hate crimes motivated by a victim's sexual orientation and granted federal officials the authority to investigate almost any hate crime anywhere. Under the previous law, they could intervene only if the crime interfered with a federally protected activity, like voting.

Critics of hate crime laws -- and there are many -- complained that the statute added yet another special class of victims to the set of racial, religious and minority groups already protected by the original federal hate crime legislation passed in 1969. Some critics went further, questioning the justness of punishing people for their thoughts. Jim DeMint, the Republican senator from South Carolina, called the law "Orwellian."

James B. Jacobs, a law professor at New York University and one of the leading critics of hate crime laws, said in a recent interview with The Huffington Post that bias-crime laws won't lead to a more tolerant society. "We already have these messages. We have a message that society will not tolerate beating people to a pulp and there's a huge punishment attached to it," he said. "But people still beat each other to a pulp. Do you really think that having another law in the books is really going to make that point?"

Hate crime advocates dismiss this view and point to the statistics: More than 6,000 criminal incidents involving bias occurred in 2010, and attacks against gay people accounted for nearly a fifth of these, according to the FBI. The Southern Poverty Law Center, an organization that tracks hate crimes, analyzed the FBI's statistics and found that gay, lesbian, bisexual and transgender people are far more likely to fall victim to a hate crime than members of any other protected group in the United States.

And those are just the crimes that the FBI knows about. The agency says that hate crimes are underreported. And it stands to reason this might be especially true when it comes to anti-gay offenses, since reporting a hate crime could amount to outing a person at the very moment someone might most want to hide.

AN ENTIRE CLASS OF PEOPLE

Advocates of hate crime legislation say that when people commit a hate crime they are attacking not just one person but an entire class of people. When Matthew Shepard was killed because he was gay, advocates argued at the time that the whole gay community was under attack.

So as some advocates would have it, George Douglas Stallard and George Daniel Stewart, a gay couple in their 50s who live in Harlan County, were also victimized by the Jenkinses' alleged crime.

Stewart and Stallard, who were born in southeastern Kentucky, are among the few people in Harlan who will talk openly about the case. They live in a little blue house in the woods with rainbow curtains on the windows -- and rainbow coasters and rainbow tablecloths and a DVD collection that includes eight seasons of "Bewitched." They seemed to have packed an entire Castro's worth of gay culture into those 600 square feet of Appalachia. Stewart and Stallard say they found just the home they wanted; the problem was everything outside it.

Their friends and family know they are a couple but the two don't know what it is like to hold hands in public in the area where they have lived most of their lives, Stallard and Stewart said. "Lord no," Stallard said, laughing.

Stewart experienced a situation similar to Pennington's when he was a teenager, Stewart said: He was hitchhiking a few miles in Harlan County when someone he knew offered him a ride and then pulled off the road, tied him to a telephone poll, sexually assaulted him and threatened to kill him. He never told anyone for years, he said. "People don't like talking about gays around here."

Stewart and Stallard are hoping the case will change things, that it will finally get people talking about gays in the community but they also know that fear has a way of making people quiet. For years they had tried to start a support group for the few openly gay people in the town. But the only way to convince people to show up to a meeting would have been to offer them prescription painkillers or a party, Stallard said.

Another gay resident of Harlan, Angie (who requested a pseudonym to protect her identity), said she hates living in the county. It’s a place trapped in time, she said, and she’s tired of always worrying about whether she and her female partner are too close as they walk together or whether people in town know they are a couple.

She had moved away from the hills when she was young and came back after splitting with her husband. She had family in Harlan County, and in the mountains, family is everything; that's what just about everyone says when you ask why he or she doesn’t leave, and that's why Angie’s partner doesn’t want to leave. But that answer wasn't good enough for Angie anymore.

"Why do people stay here?" she wondered out loud. "They're caught in the same stagnant lifestyle and they don't realize that the rest of the world has changed at all. The men know the coal and the women know the church and they don't realize that the rest of the world is so much more lively than the lives that they're living."

Angie's resignation to the difficulties of life in Harlan echoes a common refrain among the gay people who live in the area. But Jordan Palmer refused to accept this fate. He became a lonely hero, the single crusader for gay rights in all of southeastern Kentucky.

One recent evening he arrived late to a Mexican restaurant where one of his causes, a lesbian named Misty, was sitting with a big soft-spoken man to whom Palmer kept referring by his full title: Southeastern Kentucky regional director Will Taylor. Besides volunteering for the Kentucky Equality Federation, Taylor works at a gas station in town.

Misty was dressed in jeans and a sweater, Taylor in khakis and a sweatshirt. Palmer stood out: He had movie-star looks and jet-black hair combed in a swooping side part; he wore a crisp black shirt, a brown leather jacket, a slender gold bangle, a thick, macho wristwatch, a little Kentucky lapel pin and a polished brass name tag.

By the time he arrived in his silver Jaguar, the others had already ordered. He called over to the Mexican waiter. "Anything with beef," he said, without glancing in the waiter's direction. "No vegetables. Cheese and refried beans would be fine. Some type of enchilada and burrito. I didn't look at the menu. Did you understand me?”

Taylor, sitting next to Palmer, stared awkwardly into his plate of fried ice cream.

"The beef?" the waiter asked.

"I really don't care," said Palmer, growing irritated. "As long as it doesn't have lettuce or tomatoes. I don't think lettuce should be on things that are warm."

An uncomfortable silence followed, then Palmer plowed ahead. Over the next hour he held forth on the importance of the Kentucky Equality Federation, the dismal state of justice among eastern Kentucky's elected officials, his outrage over school bullying and his new friendship with the Department of Justice. He told an anecdote about asking a homophobic man in a Walmart if he wanted to step into a parking lot. ("He didn't.") He mentioned that in high school he had been sent to a gay conversion therapy center and that he had tried to kill himself after he left. And he excoriated a man who had dumped him for caring more about Perez Hilton than about civil rights.

For their part, Misty and Taylor expressed a mixture of qualified hope and deep-seated doubt about whether the Pennington case would change anything. Palmer, however, was confident that change was afoot. The case had better make a difference, he said, "because we're watching."

On the phone a few days before the dinner, Palmer had spun a compelling and persuasive tale, saying that the Harlan County officials had failed the region's gay population by neglecting to embrace Pennington's case. Palmer said he had documents and emails to support that point, but he never produced them.

Other gay rights activists who work in Kentucky tend to avoid Palmer or deal with him cautiously both because the Kentucky Equality Federation has made it clear that it prefers to work alone and because the group has a history of not always getting its facts right. The director of the Kentucky American Civil Liberties Union -- one of just two full-time paid professionals who work for gay rights in the state -- said that the federation is "often able to comment before an exhausting set of research has been conducted."

According to Palmer, his group began in 2005, a year after Kentucky passed a law banning civil unions and same-sex marriage by an overwhelming majority. But Palmer began to gain notoriety in the state's tiny community of gay-rights activists a few years ago, after several young people were accused of threatening to push a gay teenager off a cliff.

The federation became the teen's advocate before any other organization heard her story. And by the time other gay rights organizations started looking into it, they found that the case might not be as solid as Palmer's press releases had indicated. "It was a difficult case and it really required a lot of delicate and intensive vetting that may not have all been done," said Chris Hartman, the president of Kentucky's Fairness Campaign. "So we ended up with an unfortunate situation where a lot of attention got called to a cry of 'wolf' and that's difficult for hate crime victims and for the LGBT rights movement in general."

Several months after the Kentucky Equality Federation began advocating for the teenager, a judge ruled that no crime had occurred, siding with the defense attorney's argument that the incident had been staged. The federation continues to maintain that it was a hate crime. Asked about the incident, Palmer said, "It fucking happened." Palmer won't say much else about his organization or give details about its membership ranks and funding.

When Palmer asked the federal government for help with the Pennington case, he portrayed southeastern Kentucky as a corrupt backwater where elected officials care more about winning the votes of local bigots than doing justice.

But court documents and interviews with local prosecutors, the defense lawyer, the Kentucky U.S. attorney and the Justice Department all indicate that the state did in fact intend to prosecute the Jenkinses to the best of its abilities. Last spring when additional evidence emerged after the Jenkinses were first arrested, the state ramped up its charges to attempted murder. And when the Justice Department announced the federal indictment in April, the state had already scheduled a trial. The state decided to drop its case only after the federal government had brought charges.

Henry Johnson, the commonwealth's attorney in Harlan, said he personally believed in the importance of hate-crime legislation, particularly when it comes to protecting gay people -- people like his nephew, he said.

"I think this business about judges and prosecutors refusing to do these cases -- I think that's a myth," he said. "It's a myth and it’s stereotyping."

During several conversations about Pennington's allegations and Palmer's advocacy on his behalf, Palmer maintained that neither local prosecutors nor the federal government would have acted without his urging. He was adamant that his group alone had come to Pennington's aid.

But now it seems that he no longer leads the group. A week after the dinner at the Mexican restaurant, Palmer said he was taking a leave of absence from his volunteer post. In a press release, he cited unnamed medical reasons.

DEVIL’S IN THE DETAILS

Andrew Stephens is the court-appointed lawyer for Jason Jenkins, and like every other official participating in the trial, he said he couldn’t say much about the case. He did say this, however: If you know Harlan County, you know “that is a very, very small community and everybody knew everybody. And if Kevin Pennington is gay -- if he is gay -- everybody up there knew it. And it wasn't like my client or the co-defendant just came upon this bit of information and that night created this plan to take him out."

Indeed, in the majority of violent hate crimes, the victim and the attacker are strangers. So why did Pennington, who said he had known all the Jenkinses for years, get in the car with them, Stephens asked. And why was he surprised to find the Jenkins men in the front seat?

These were only some of Stephen’s questions.

"I think the government is going to have a hard time," he said, just before playing his trump card, "because there is simply no doubt that Mr. Pennington was a midlevel purveyor of unlawful substances."

In Pennington's initial statement to the police, he had glossed over his reasons for getting into the car and he later told a local reporter the young women had offered to give him a ride to go buy cigarettes. But when the FBI began to investigate, Pennington told a different story. He said that when Ashley and Alexis arrived at his house, Ashley said she wanted to get a strip of Suboxone -- an opiate prescribed for people addicted to Oxycontin or heroin.

Pennington replied that he had already made an arrangement to buy one from a friend, and Ashley offered to take him to the friend’s house and said she would pay for the goods.

Whatever the reasons for their get-together that night, all five of the people in that car agree that the four Jenkinses drove to Pennington's house and picked him up, and eventually started up the hill to Kingdom Come.

Why did they drive up that mountain? That may be the most critical question of all, and the prosecution will no doubt argue that they went up there to beat up Pennington or to kill him. But even if they succeed in making that case, the defense may prevail if it can persuade a jury that the Jenkinses wanted to hurt Pennington not primarily because of his sexuality but for some other reason, namely a disagreement over drugs. Several pieces of evidence already point to the possible validity of this argument.

In her statement to the state investigators, Anthony’s wife, Alexis, said that Jason wanted to beat up Pennington because Pennington had “tried to run him over or something a long time ago.”

Jason told a contradictory story, but he, too, alluded to the possibility that the grudge began before that night. In his version of the attack, Anthony stopped the truck, dragged Kevin out and said, “We have some unfinished business to settle, motherfucker.”

The Jenkinses could not be reached for comment, and no one answered calls to their home phone numbers.

“If someone wants an act of violence to be discounted in Harlan County, the first thing they say is that it’s a drug deal gone bad because they know that people are sick of the drug problem," said Johnson, the commonwealth's attorney.

Every year in Kentucky drugs kill more people than car wrecks. Every day three people die of overdoses. A major investigation conducted by the Lexington Herald-Leader in 2003 found that more painkillers flowed into Kentucky than any other part of the United States. This all perhaps explains why southeastern Kentuckians might not want to talk about the case.

Here in Harlan County last month, some people said they were sick of serving as an example of everything wrong with America. Ever since Lyndon Johnson stepped onto a porch in eastern Kentucky in 1964 to declare his "war on poverty," politicians and journalists have come to Appalachia to tell stories about the country's ugliest features -- economic ruin, environmental destruction, drug abuse -- and now homophobic hatred.

With all the concerns raised about Palmer's credibility, all the ambiguities in Pennington's story and all the questions concerning what went through the Jenkinses' minds as they drove up the mountain that night, here's what we're left with: On the night of April 4, a beaten Pennington crawled out of the woods in Kingdom Come state park and made his way down the road to where he dialed 911 for help.

SHARING A BED

The people of Harlan may never know why the Jenkinses beat Pennington. Next month, a jury will decide whether it was hate. Whatever their thoughts about gay life in Harlan, all those interviewed in town last month agreed that the case, regardless of its outcome, could be a milestone for Harlan and for its gay community, a signal that change is possible.

On a recent evening Eric Boggs, a gay 25-year-old from the area, and his best friend, a self-proclaimed "fag hag" named Shelley, came along on a car ride to help a reporter try to find the spot where Pennington was beaten. The road hugs the curves of a steep mountain: On one side the forest disappears into the clouds; on the other side it falls away into darkness.

Shelley sat in the passenger's seat and Boggs sat in the back. The road wound past broken-down shacks and mobile homes and the terrain became more and more rugged as it rose into mountains. Shelley and Boggs teased each other and Shelley joked that there was about to be another hate crime on the mountain because "I'm about to beat the crap out of you."

But as they got closer to the scene of the crime, they both became serious. Shelley said there were all these stories of people going missing on the road and Boggs said there used to be witches in the woods. The road gave way to a gravel path and the houses grew more ramshackle. Headlights flashed through the trees ahead. Boggs suggested turning around.

A former football star with muscles and broad shoulders, Boggs looked like someone who wasn’t easily intimidated. Even so, he was pleased that the county now had two fewer violent criminals running around the woods, he said. Boggs remained skeptical, however, that the case would make things better.

But he also realized that he had seen people change, his own father, for one. When he was 13, his father had made it clear to him that he did not intend "to have a faggot as a son." If Boggs was gay, his father said, he'd kill him.

And yet when his boyfriend visited from Texas last month, his father didn't object to their sharing of a bed. He'd come to accept his son for who he was.

CORRECTION: This story has been updated to reflect that Sen. Jim DeMint represents South Carolina not North Carolina.

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