Historically, under criminal law, a crime is conducting a prohibited act and the motivation of the perpetrator was irrelevant to guilt but not to punishment. If the type of crime demonstrated a necessarily vicious state of mind that shocked the conscious of the judge or jury, then additional punishment would be merited. Thus if X killed because X wanted money versus because the victim insulted X does not alter the crime of murder, but could alter the degree of punishment imposed (e.g. first degree murder versus second degree murder.) Indeed, emotions could sometimes act to reduce the punishment. “Crimes of passion” often resulted in less punishment than premeditated crimes since the theory was that anyone could “lose control” but only a truly evil person would plot to murder someone.
Thus, the creation of an entire category of crimes in which the emotive basis (hatred) is the underlying theme is a relatively new concept to be introduced into our system. Hate Crimes (called bias-motivated crimes in certain states) are of major concern all over the world. There have always been such “crimes” in recorded human history. Typically recalled today are the Roman persecution of Christians, the Ottoman genocide of Armenians, and the Nazi assault over the Jews. More recently, we have the ethnic cleansing in Bosnia and genocide in Rwanda.
Essentially, the concept is that if a crime is committed based on hatred of a particular class of person, be it race, gender, sexual orientation or religion, then the punishment is either enhanced or it can be a separate category of crime itself. The perpetrator of a hate crime targets a victim merely because he or she belongs to a certain social group, usually defined by race, religion, sexual orientation, disability, ethnicity, nationality, age, gender, gender identity, or political affiliation.
Statistics reveal that racial and religious biases are the most common hate crimes in the United States. Examples of hate crimes in the United States include lynching of African Americans, cross burnings to drive black families from predominantly white neighborhoods, assaults on white people traveling to predominantly black neighborhoods, assaults on gay, lesbian and transgender people. Data from law enforcement agencies across the United States is gathered using a system of Uniform Crime Reports.
This article shall discuss the essential elements of “hate crimes” in the United States under both Federal and State law and outline some of the arguments presented concerning its application.
The Basic Laws:
A hate crime can occur in two forms:
- It can be a criminal physical act motivated by hatred of one or more of the specified conditions or
- It can be hate speech, where the speech is defined as crime. (The concept of hate speech is highly controversial, as criminalizing speech can be seen as restricting the freedom of speech.)
Traditionally, hate crime legislation offered protection to persons because of “race, color, religion or national origin,” (18 USC 245) as described in the 1969 federal hate crimes law. Most state laws now include additional protected groups in their hate crime legislations.
The FBI defines a hate crime to be, “…a criminal offense committed against a person, property or society which is motivated, in whole or in part, by the offender’s bias against a race, religion, disability, sexual orientation, or ethnicity/national origin.”
Crimes motivated by hatred of a person’s sexual orientation (whether the victim is a heterosexual, bisexual or homosexual) are also sometimes included under hate crimes. Current statutes permit federal prosecution of hate crimes committed on the basis of a person’s race, color, religion, or nation origin when engaging in a federally protected activity. 18 United States Code, Section 245.
Note that the Federal government can only impose penalties for violation of federally protected rights. Other rights must be protected by the States.
The six “federally protected activities” enumerated in the statute are:
(a) enrolling in or attending a public school or public college;
(b) participating in or enjoying a service, program, facility or activity provided or administered by any State or local government;
(c) applying for or enjoying employment;
(d) serving in a State court as a grand or petit juror;
(e) traveling in or using a facility of interstate commerce; and
(f) enjoying the goods or services of certain places of public accommodation.
Note that federal laws only attach an extended sentence penalty to those hate crimes that are motivated by racism, sexism or xenophobia. Hate crimes based on gender, sexual orientation, sexual identity, or disability do not result in extra sentences.
The use of the term “perceived” in the definition of hate crimes of some state legislation takes special significance because many of the hate crimes are based in error on the incorrect belief that the victim is gay, or a member of some group or class that the perpetrator hates.
What constitutes hate crimes and to what extent can an incident be taken as a hate crime is a highly contested topic. In the 1993 case of Wisconsin v. Mitchell, the U.S. Supreme Court unanimously found that penalty-enhancement hate crime statutes do not conflict with free speech rights because they do not punish an individual for exercising freedom of expression; rather, they allow courts to consider motive when sentencing a criminal for conduct which is not protected by the First Amendment. Wisconsin v. Mitchell, 508 U.S. 476 (1993)
In the 1993 case of In re Joshua H., it was held that in case of hate crimes, only proof of a specific intent to deprive an individual of a right secured by federal or state law is required. This does not mean that the prosecution must show that the defendant acted with knowledge of particular provisions of state or federal law, or that the defendant was even thinking in those terms. It is sufficient if the right is clearly defined and that the defendant intended to invade interests protected by constitutional or statutory authority. In re Joshua H., 13 Cal. App. 4th 1734 (Cal. App. 6th)
More On Federal Law on Hate Crimes:
Federal jurisdiction over and prosecution of hate crimes is limited to specific federally protected activities such as voting, attending public school, or jury duty. There are various federal acts dealing with hate crimes including the Violent Crime Control and Law Enforcement Act, Mathew Shepard Act, Hate Crime Statistics Act, and the Campus Hate Crimes Right to Know Act.
The Campus Hate Crimes Right to Know Act of 1997, 20 U.S.C. § 1092(f)(1)(F)(ii)], requires campus security authorities to collect and report data on hate crimes committed on the basis of race, gender, religion, sexual orientation, ethnicity, or disability.
In response to mounting national concern over crimes motivated by bias, Congress enacted the Hate Crime Statistics Act of 1990. The law directs the Attorney General to collect data “about crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity.” The Attorney General delegated the responsibility for developing and implementing a hate crime data collection program to the Director of the FBI, who assigned the task to the Uniform Crime Reporting (UCR) Program. In September 1994, Congress passed the Violent Crime Control and Law Enforcement Act, which amended the Hate Crime Statistics Act to include both physical and mental disabilities. The UCR Program began collecting statistics on offenses motivated by bias against physical and mental disabilities in January 1997. The Church Arson Act of 1996 mandated that hate crime data collection become a permanent part of the UCR Program.
The Hate Crime Statistics Act is the first federal statute to recognize and name gay, lesbian and bisexual people. The Hate Crime Statistics Act requires the Attorney General to collect data on crimes committed because of the victim’s race, religion, disability, sexual orientation, or ethnicity. In 1994 Congress expanded the scope to include crimes based on disability, and in 1996 Congress permanently reauthorized the Act.
The Matthew Shepard Act (officially, the Local Law Enforcement Hate Crimes Prevention Act or LLEHCPA), is named for a gay American student, Matthew Shepard, who was killed in 1998 near Laramie, Wyoming. It was revealed during trial that Shepard was targeted because he was gay. At the time, the hate crime law in Wyoming did not recognize homosexual persons as a protected class thus the accused in the case were not charged under hate crime laws.
On May 3, 2007, the House of Representatives passed the Matthew Shepard Act (officially, the Local Law Enforcement Hate Crimes Prevention Act of 2007, or LLEHCPA), HR 1592. The Act expands the United States federal hate crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity, or disability, and it drops the prerequisite that the victim be engaged in a federally-protected activity at the time of assault to come within the ambit of the Act.
The Violent Crime Control and Law Enforcement Act, an act of Congress became law in 1994. The Violent Crime Control and Law Enforcement Act, enacted in 28 U.S.C. § 994, requires the United States Sentencing Commission to increase the penalties for hate crimes committed on the basis of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person. In 1995, the Sentencing Commission implemented these guidelines, which only apply to federal crimes.
Bias-motivated offenses may be directed at persons, property, or society. In most cases of bias-motivated offenses against persons, the crime of intimidation is also present. Nearly all other offenses directed at persons involved assaults: simple assaults made up 18.7 percent and aggravated assaults accounted for 12.7 percent of the offenses. The majority of hate motivated offenses directed against property involved destruction, damage, or vandalism (81.3 percent).
Of the 8,804 victims of hate crimes in 2005, most were associated with an incident involving a single bias. 55.7 percent were victims of racial prejudice. Of those, 67.9 percent were victimized because of anti-black attitudes, and 19.9 percent were targets of anti-white sentiments. Among victims of religious intolerance, 69.5 percent were victims of anti-Jewish bias, and 10.7 percent were targets of anti-Islamic bias.
Of the total number of victims of single-bias incidents, 15.6 percent were attacked because of a sexual-orientation bias. The majority of those victims, 61.3 percent, were the objects of anti-male homosexual attitudes, 19.2 percent were victims of an anti-homosexual bias and 15.3 percent were victims of an anti-female homosexual bias.
In case of hate crimes caused due to the offenders’ ethnicity/national orientation bias, 58.8 percent were marked because of the perpetrators’ anti-Hispanic views and 41.2 percent were victimized because of a bias against other ethnicities/national origins. Less than 1 percent of the total victims of crimes motivated by a single bias were targets of an anti-disability bias. Of the 54 victims of disability bias, 33 were the subjects of a bias against a mental disability and 21 were victims of an anti-physical disability bias. The FBI website is by far the best locale to obtain these types of statistics. https://www.fbi.gov/
Summary of State Laws on Hate Crimes
Forty Five states and the District of Columbia have statutes criminalizing various types of bias-motivated violence or intimidation (the exceptions as of 2012 are Arkansas, Georgia, Indiana, South Carolina, and Wyoming). Each of these statutes cover bias on the basis of race, religion, and ethnicity; 32 of them cover sexual orientation; 32 cover disability; 28 cover gender; 13 cover age; 11 cover transgender/gender-identity; 5 cover political affiliation.
Thirty one states and the District of Columbia have statutes creating a civil cause of action, in addition to the criminal penalty, for similar acts. Put simply, it allows the victim to seek relief in court as well as allowing the State to prosecute the alleged crime. See our article on American Litigation.
Twenty seven states and the District of Columbia have statutes requiring the state to collect hate crime statistics; 16 of these cover sexual orientation.
Statutory Provisions Included In Hate Crime Legislations in Various States
The statutory provisions included in the hate crime legislations in the various states are as follows as of 2012:
State
Statutory provisions included in hate crime legislation
Alabama
Bias-motivated violence and intimidation Criminal penalties as a result of hate crimes Race, religion and ethnicity ”Other” including mental and physical disability or handicap
Institutional vandalism
Alaska
Bias-motivated violence and intimidation Criminal penalties as a result of hate crimes Race, religion and ethnicity Gender
Other
Arizona
Bias-motivated violence and intimidation Criminal penalties as a result of hate crimes Race, religion and ethnicity interference with religious worship
Sexual Orientation
Gender
Other
“Other” includes mental and physical disability or handicap
Institutional vandalism
Data collection
Training for Law Enforcement Personnel
Arkansas
Civil action as a result of hate crimes Institutional vandalism
California
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Interference with religious worship
Sexual Orientation
Gender
Other
“Other” includes mental and physical disability or handicap
Institutional vandalism
Data collection
Training for Law Enforcement Personnel
Colorado
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Institutional vandalism
Institutional vandalism statutes, although not necessarily anti-bias, increase criminal penalties for vandalism aimed at houses of worship, cemeteries, schools and community centers.
Connecticut
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Sexual Orientation
Institutional vandalism
Data collection
Delaware
Bias-motivated violence and intimidation Criminal penalties as a result of hate crimes Race, religion and ethnicity Sexual Orientation
Other
“Other” includes mental and physical disability or handicap
Institutional vandalism
D.C.
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Interference with religious worship
Sexual Orientation
Gender
Other
“Other” includes mental and physical disability or handicap, political
affiliation and age
Institutional vandalism
Data collection
Florida
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Interference with religious worship
Sexual Orientation
Institutional vandalism
Data collection
Georgia
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Institutional vandalism
Hawaii
Institutional vandalism
Idaho
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Interference with religious worship
Data collection
Illinois
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Sexual Orientation
Gender
Other
“Other” includes mental and physical disability or handicap
Institutional vandalism
Data collection
Training for Law Enforcement Personnel
Indiana
Institutional vandalism
Iowa
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Sexual Orientation
Gender
Other
“Other” includes mental and physical disability or handicap,
political affiliation, and age
Data collection
Training for Law Enforcement Personnel
Kansas
Institutional vandalism
Kentucky
Institutional vandalism Data collection Training for Law Enforcement Personnel
Louisiana
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Sexual Orientation
Gender
Other
“Other” includes mental and physical disability or handicap,
political affiliation, and age
Institutional vandalism
Data collection
Training for Law Enforcement Personnel
Maine
Bias-motivated violence and intimidation Criminal penalties as a result of hate crimes Race, religion and ethnicity Sexual Orientation
Gender
Other
“Other” includes mental and physical disability or handicap
Institutional vandalism
Data collection
Maryland
Bias-motivated violence and intimidation Criminal penalties as a result of hate crimes Race, religion and ethnicity Interference with religious worship
Institutional vandalism
Data collection
Massachusetts
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Interference with religious worship
Sexual Orientation
Other
“Other” includes mental and physical disability or handicap
Institutional vandalism
Data collection
Training for Law Enforcement Personnel
Michigan
Bias-motivated violence and intimidation. Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Interference with religious worship
Gender
Minnesota
Bias-motivated violence and intimidation Criminal penalties as a result of hate crimes Race, religion and ethnicity Interference with religious worship
Sexual Orientation
Gender
Other
“Other” includes mental and physical disability or handicap
Institutional vandalism
Data collection
Training for Law Enforcement Personnel
Mississippi
Bias-motivated violence and intimidation Criminal penalties as a result of hate crimes Race, religion and ethnicity Interference with religious worship
Gender
Institutional vandalism
Missouri
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Interference with religious worship
Institutional vandalism
Montana
Bias-motivated violence and intimidation Criminal penalties as a result of hate crimes Race, religion and ethnicity Institutional vandalism
Nebraska
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Sexual Orientation
Gender
Other
“Other” includes mental and physical disability or handicap
Data collection
Nevada
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Interference with religious worship
Sexual Orientation
Other
“Other” includes mental and physical disability or handicap
Institutional vandalism
Data collection
New Hampshire
Bias-motivated violence and intimidation Criminal penalties as a result of hate crimes Race, religion and ethnicity Sexual Orientation
Gender
Other
“Other” includes mental and physical disability or handicap
Institutional vandalism
Data collection
Training for Law Enforcement Personnel
New Jersey
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Sexual Orientation
Gender
Other
“Other” includes mental and physical disability or handicap
Institutional vandalism
Data collection
New Mexico
Interference with religious worship Institutional vandalism
New York
Bias-motivated violence and intimidation[iii]Criminal penalties as a result of hate crimes Race, religion and ethnicity Interference with religious worship
Gender
Other
“Other” includes mental and physical disability or handicap
North Carolina
Bias-motivated violence and intimidation Criminal penalties as a result of hate crimes Race, religion and ethnicity Interference with religious worship
Institutional vandalism
North Dakota
Bias-motivated violence and intimidation Criminal penalties as a result of hate crimes Race, religion and ethnicity Gender
Institutional vandalism
Ohio
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Institutional vandalism
Oklahoma
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Interference with religious worship
Other
“Other” includes mental and physical disability or handicap
Institutional vandalism
Data collection
Oregon
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Sexual Orientation
Institutional vandalism
Data collection
Training for Law Enforcement Personnel
Pennsylvania
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Institutional vandalism
Data collection
Rhode Island
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Interference with religious worship
Sexual Orientation
Gender
Other
“Other” includes mental and physical disability or handicap
Institutional vandalism
Data collection
Training for Law Enforcement Personnel
South Carolina
Interference with religious worship Institutional vandalism
South Dakota
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Interference with religious worship
Tennessee
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Interference with religious worship
Institutional vandalism
Texas
Bias-motivated violence and intimidation Criminal penalties as a result of hate crimes Institutional vandalism Data collection
Utah
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes
Vermont
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Sexual Orientation
Gender
Other
“Other” includes mental and physical disability or handicap and
age
Virginia
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Interference with religious worship
Institutional vandalism
Data collection
Washington
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Sexual Orientation
Gender
Other
“Other” includes mental and physical disability or handicap
Institutional vandalism
Data collection
Training for Law Enforcement Personnel
West Virginia
Bias-motivated violence and intimidation Criminal penalties as a result of hate crimes Race, religion and ethnicity Interference with religious worship
Gender
Other
“Other” includes mental and physical disability or handicap and
political affiliation
Wisconsin
Bias-motivated violence and intimidation Civil action as a result of hate crimes Criminal penalties as a result of hate crimes Race, religion and ethnicity
Sexual Orientation
Other
“Other” includes mental and physical disability or handicap
Institutional vandalism
Wyoming
None
Arguments For and Against:
Support for Hate Crime Laws
Advocates of harsher punishment for hate crimes state that hate crimes cause greater individual and societal harm. This is probably because when the very root of a person’s identity is attacked, the humiliation caused is severe, and results in disempowerment of a group of people in the society. This causes a tear in the very fabric of a free society. It is for this very reason that hate crimes are sometimes referred to as “message crimes:” verbal or physical violence intended to send a message to a minority within a community.
Advocates favoring hate crime legislations also feel that chances for retaliatory crimes are greater when a hate crime has been committed. Therefore, they feel that there should be laws that recognizes the gravity of hate crimes and prevents their recurrence. In a democratic society, citizens cannot be required to approve of the beliefs and practices of others, but must never commit criminal acts on account of them.
The typical argument is that if the German government has effectively prosecuted hate crimes in Germany in the 1920’s, the Nazis would never have risen to such power. (Note that Hitler was arrested and served time in prison for his political activities and while in prison wrote Mein Kamp.)
Essentially, the argument is that the motivation of the crime changes the nature of the crime and generalizes the wrongful activity to being against an entire group of people, not merely the victim. The societal dangers inherent in that type of crime require greater protection for society as well as the victims.
Opposition to Hate Crime Laws
Those opposing hate crime legislation feel that hate crime statutes which criminalize bias-motivated speech or symbolic speech conflict with free speech rights. American justice is based on the principle that everyone is treated identically and is entitled to free speech and thought.
In R. A. V. v. St. Paul, the petitioner was charged with violating the St. Paul Bias-Motivated Crime Ordinance. St. Paul, Minn., Legis. Code § 292.02 (1990). The Court held that the First Amendment did not permit the government to impose special prohibitions on speakers who express views on disfavored subjects. R. A. V. v. St. Paul, 505 U.S. 377 (U.S. 1992). It is often felt that criminalization of bias-motivated speech conflicts with the right of free speech because they isolate certain language based its content or viewpoint. In effect this criminalizes even thoughts and can thus be said to create a new category of crime namely, “thought crimes”. This could lead to a situation where belief, thought and speech is criminalized. People not in favor of hate crime legislation also feel that such legislation effectively makes certain ideas or beliefs, including religious ones, illegal. This conflict with an even more fundamental right: the right of free thought.
Of course, free speech is restricted in our society, the typical example being crying fire in a crowded theatre when there is no fire can be a criminal act. The issue is not whether speech is sometimes restricted, but whether the danger of hate crimes is sufficient that some restriction is justified.
Conclusion:
One client put it well. He pointed out that one cannot legislate tolerance or love for one another…but one can legislate a high price for those who inflict their beliefs onto others by threats of verbal or physical violence. “I don’t care if he loves me. I care that he doesn’t threaten me or my family. And I want him in jail if he does. That’s more important than if he simply wants to steal my money. He is stealing my right to be free from fear.”
Jefferson grasped that in his framing of the founding documents of this nation. The original “Life, Liberty and Property” protections postulated by John Locke were altered by Jefferson to “Life, Liberty and the Pursuit of Happiness,” with the understanding that stealing someone’s happiness can be a violation of their rights every bit as important as the theft of their money.
Jerrod Diamond in his Guns, Germs and Steel,” listed the genocides of the last hundred years which was a shock to those who only concentrate on the Holocaust or, perhaps, Rwanda. There were well over a hundred that have occurred, with Russia having the largest total number murdered and Cambodia the highest percentage of the population. It is not an uncommon occurrence.
And the first step to genocide is to condone by silence the hate crimes that form the atmosphere that can allow hatred and intolerance to propagate.