by Mike Andrew -
SGN Staff Writer
The FBI announced on December 17 that it would use the authority it received under the newly passed Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act to investigate a kidnapping and sexual assault in Big Bend, Texas, as a possible anti-Gay hate crime.
"We are opening a case and we're beginning our investigation," Special Agent Andrea Simmons of the El Paso branch office of the FBI told SGN on December 23. "I can't comment on anything else, because it's now an ongoing investigation."
The victim in the case, an 18-year-old high school student, was kidnapped by two suspects on December 6 outside the Boathouse Bar and Restaurant in Terlingua, near Big Bend National Park and the Texas-Mexico border.
The suspects then took the victim to a remote location, burned his vehicle, and repeatedly sexually assaulted him before he managed to escape, crossing three miles of harsh desert terrain on foot to get help. A Brewster County Sheriff's Deputy found him on State Highway 118 at about 1 a.m.
According to the Big Bend Gazette monthly, the victim was examined by doctors, questioned by sheriff's deputies, and is now recovering at an undisclosed location.
Two suspects have been arrested by the Brewster County Sheriff's Department, 46-year-old Daniel Martinez and 27-year-old Kristopher Buchanan.
The two were indicted by a grand jury on December 18 on charges of aggravated sexual assault, aggravated kidnapping, aggravated robbery, and arson. Bond was set at $275,000 each.
Big Bend Gazette reports that Buchanan is also being held on two outstanding felony warrants from two other Texas counties. Martinez also has numerous prior arrests and convictions.
Three of the four charges in the Big Bend case are first-degree felonies. Since there is no penalty enhancement available under the 2001 Texas hate crimes statute, it would be unlikely that the district attorney would prosecute the case as a hate crime.
However, the FBI investigation could lead to federal hate crimes charges under the Matthew Shepard Act. That law, signed by President Obama in October, allows federal authorities to intervene in the investigation and prosecution of hate crimes based on real or perceived sexual orientation or gender identity.
Matt Espenshade, a senior resident FBI agent in Midland, Texas, told the Dallas Voice newspaper on December 17 that the FBI is now monitoring the Brewster County Sheriff's investigation, and plans to conduct its own.
"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 possibly a motive," Espenshade said. "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 he believed 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."
It remains unclear whether the victim is in fact Gay, but the Matthew Shepard Act 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."
According to Simmons, once the FBI investigation is complete, "it will go to the US Attorney's Office, which is part of the Justice Department. Then it's up to them whether to file charges. We just investigate. We don't prosecute."
"We take these cases very seriously," she added, "and it will be a serious investigation."
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