Agent says victim’s actual orientation not at issue, since federal statute covers ‘perceived’ orientation also
TERLINGUA — The FBI plans to investigate a recent kidnapping and sexual assault in far west Texas as a possible anti-gay hate crime, making it one of the first cases in the nation to be treated as such under the newly passed Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act.
The 18-year-old victim, a high school student, was kidnapped by two suspects Dec. 6 outside a bar in Terlingua, near Big Bend National Park and the Texas-Mexico border, according to media reports.
The suspects took the victim to a remote location, burned his vehicle and repeatedly sexually assaulted him before he managed to escape, crossing 3 miles of harsh desert terrain on foot to get help.
The two suspects — 46-year-old Daniel Martinez and 27-year-old Kristopher Buchanan — have been arrested in connection with the crime. Brewster County Sheriff Ronnie Dodson hasn’t returned numerous phone calls seeking comment about the case.
Matt Espenshade, supervisory senior resident agent in the FBI’s Midland field office, said this week that the FBI is now monitoring the sheriff’s investigation and plans to conduct its own.
The Hate Crimes Prevention Act, signed by President Barack Obama in October, allows federal authorities to intervene in cases of hate crimes based on sexual orientation.
"Our investigation is to either establish or deny whether it was [a hate crime], but there seems to have been some indication that that was possible a motive,"
Espenshade told Dallas Voice. "At least that has been alleged, and so we’re looking into those allegations to see if that is true or not. … I think we have to do our due diligence in order to ascertain whether this is a violation of civil rights or it isn’t."
Espenshade said authorities believe the attack may have been an anti-gay hate crime based on witness statements about activity at the bar prior to the attack.
He declined to elaborate on the facts of the case because he said he didn’t want to jeopardize the investigation.
"We’re investigating those particular comments," Espenshade said. "I can’t say the breadth of them right now, because it may or may not pan out that way."
Espenshade said the FBI’s inquiry hasn’t formally begun and agents are working to come up with an investigative plan.
"We’re five hours from the location, so this is something that we’re going to do in a series of trips down there," he said.
He added that it’s still unclear whether the victim is gay, but he noted that the new federal law covers both "actual" and "perceived" sexual orientation. Espenshade said sheriff’s investigators are focused on the kidnapping and sexual assault charges and may not have wanted to "pry" into the victim’s sexual orientation.
"He has not declared any sexual orientation, and we’re looking into whether that was perceived," Espenshade said. "For the purposes of the statute, it doesn’t matter if he is a homosexual or not, it’s just what the subjects perceived."
Espenshade added that perceived sexual orientation could be difficult to prove without an admission from the suspects.
"They’ve gotten lawyers, and they haven’t made any statements to police," he said. "This particular aspect of the civil rights law is fairly new. It’ll be a bit of new territory to determine how we prove the case."
Espenshade said once the FBI’s investigation is complete, the results will be turned over to the U.S. Department of Justice to determine whether federal charges will be filed.
"We’ll get it together in a package and send it up to them, and then they can make the decision," Espenshade said.
"We take these cases very seriously, and we’ll engage them very seriously."
The owner of the bar where the victim was kidnapped, the Terlingua Boat House, didn’t return a phone call this week seeking comment.
John Waters, publisher of the Big Bend Gazette, a newspaper in nearby Alpine, said this week he didn’t have any new information about the case.
Waters had contacted Equality Texas, the Austin-based LGBT advocacy group, in the wake of the incident to get more information about anti-gay hate crimes.
Randall Terrell, political director at Equality Texas, has said that based on his conversation with Waters about the crime, "It sounds like Matthew Shepard all over again."
Terrell said this week he’s confident that local authorities will thoroughly investigate and prosecute the crime. But he also noted that under Texas’ 2001 hate crimes statute, there’s no enhanced penalty available to prosecutors if the charges are already first-degree felonies.
"The feds are not so limited, and they can try to tack another 10 years on," Terrell said.
This article appeared in the Dallas Voice print edition December 18, 2009.