United States District Court, E.D. Kentucky, Southern Division
For David Jason Jenkins, Defendant: Andrew M. Stephens, LEAD ATTORNEY, Lexington, KY.
For Anthony Ray Jenkins, Defendant: Willis G. Coffey, LEAD ATTORNEY, Coffey & Ford, P.S.C., Mt. Vernon, KY.
For Shannon Partin, Material Witness: Samuel B. Castle , Jr., LEAD ATTORNEY, Millward & Castle, PLLC, Barbourville, KY.
For Alex Jenkins, Material Witness: Douglas Glenn Benge, LEAD ATTORNEY, Cessna and Benge, London, KY.
For Lexington H-L Services, Inc., Movant: Kif Harward Skidmore, Robert F. Houlihan, Jr., LEAD ATTORNEYS, Savage, Elliott, Houlihan, Moore, Mullins & Skidmore, LLP, Lexington, KY.
For USA, Plaintiff: Hydee R. Hawkins, LEAD ATTORNEY, U.S. Attorney's Office, EDKY, Lexington, KY; AeJean Cha, U.S. Department of Justice - Civil Rights Division, Employment Litigation Section, Washington, DC.
Gregory F. Van Tatenhove, United States District Judge.
Every case begins with a story. Here, much of that story is uncontested. All agree that on a dark night, in the spring of 2011, Kevin Pennington was physically and brutally assaulted on a deserted road in Kingdom Come State Park by Jason and Anthony Jenkins. The jury saw photographs of Mr. Pennington's injuries and heard the fear in his voice during a desperate call to 911 for help. No one deserves to be harmed that way for any reason.
But this is not a case about " any reason." For the first time in the nation, the government sought to hold defendants responsible for committing this crime " because of" one particular reason -- the admitted sexual orientation of the victim. Here, the victim is gay. And at the end of many days of testimony, the jury decided that the government had failed to prove that these defendants committed that crime. 
While this is the first such prosecution in the country, as explained below, Congress has seen fit to enact any number of statutes over the years that hold a person accountable for treating a person violently or adversely for an impermissible reason. Whether it is race, religion, gender, age or, now sexual orientation, courts have been called upon to instruct juries on what it means to commit an act " because of" one of these factors. As the instruction on this point was the subject of much debate between the parties, the Court issues this Memorandum Opinion to set forth formally, and develop more fully, its previously articulated reasoning for choosing the construction provided to the jury. 
The simple phrase " because of" means many different things to many different judges. As an initial matter, " because of" has been clarified to mean " a motivating factor" in the Title VII context. The version of Title VII that was enacted as part of the Civil Rights Act of 1954 made it unlawful " for an employer to discriminate against any individual... because of such individual's race, color, religion, sex, or national origin." Pub.L. No. 88-352, § 703 (emphasis added). After some disagreement among the Justices of the Supreme Court on how to interpret this statute, in the Civil Rights Act of 1991, Congress clarified its meaning. In the current language of Title VII, a plaintiff establishes an unlawful employment practice by showing that the prohibited reason was " a motivating factor" of the unlawful employment practice. 42 U.S.C. § 2000e-2(m).
In a mixed motive context, once this showing has been made, the burden shifts and a limitation of remedies is available only if the employer can prove that he or she would have taken the employment action
irrespective of the prohibited reason. 42 U.S.C. § 2000e-5(g)(2)(B). At the charge conference in this case, the Government noted that a court in the Fifth Circuit had used the " a motivating factor" language as the standard for measuring " because of" in 18 U.S.C. § 249(a)(2).  In its proposed jury instructions, the Government initially recommended that this Court likewise adopt the " a motivating factor" standard. 
But Title VII is not the only statutory section informing the meaning of " because of." The predecessor statute to the HCPA forbade the interference with a person's participation in certain federally protected activities " because of his race, color, religion, or national origin." 18 U.S.C. § 245(b)(2). In interpreting the appropriate standard under this statute, the Sixth Circuit has stated, " the law provides that so long as racial animus is a substantial reason for a defendant's conduct, other motivations are not factors to be considered." United States v. McGee, 173 F.3d 952, 957 (6th Cir. 1999) (emphasis added) (citing United States v. Ebens, 800 F.2d 1422, 1429 (6th Cir. 1986), abrogated on other grounds by Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988)). Though the " a substantial reason" standard does seem to be a higher bar than " a motivating factor," it does not require the ...