Vandalizing a synagogue with swastika graffiti. Burglarizing an Asian-owned oriental corner store. Burning a cross in the front yard of an African-American family’s home. Physically assaulting a person while hurling racial slurs. These are all clear-cut hate crime examples. They target individuals based on characteristics related to their ethnicity, race, or religion.
The country has witnessed a spike in the number of violent attacks meted on Asian-Americans since the onset of the COVID-19 pandemic a year ago.
This unprecedented rise can be attributed to the rhetoric that holds people of Asian descent responsible for the origin and spread of the coronavirus.
According to federal hate crime data, the levels of reported hate crimes between 2019 and 2020 were at an all-time high in more than a decade.
What exactly constitutes a hate crime? What are the legal repercussions for individuals convicted of such offenses? This article takes a deep dive into the issue to answer both of these questions in depth.
What Is a Hate Crime
The official hate crime legal definition is – A violent act motivated by intolerance intended to intimidate or hurt a person because of their ethnicity, race, religion, national origin, disability, or sexual orientation. If the crime involves the use or threat of force, it may be elevated to a civil rights violation.
You might ask – What exactly makes an offense a “hate crime?” If the perpetrator’s intent is to intimidate and/or hurt an individual simply because of their affiliation with a particular ethnicity, race, or any other identity, it falls within the realm of a hate crime. An individual found engaging in such behavior will be arrested and charged as such.
On the other hand, if someone commits a violent act against another individual for no specific reason, they will likely be charged with assault and battery.
If the victim happens to be a recent immigrant, and the prosecutors can prove that the perpetrator’s actions were motivated by intolerance for immigrants, it ceases to be a mere assault and battery case. It becomes a hate crime. The burden of proof rests on the prosecution to prove intent for hate crime charges to stick.
You can think of a hate crime as an act of terrorism against a specific community. The violence or threat of it meted against one member of that community is intended to express hatred for the larger group.
For instance, suppose a group of people set fire to a church that is historically frequented by members of the Black community. That action would be considered a hate crime since the act itself is meant to terrorize African-Americans in general instead of the specific congregants who attend that church.
Hate Crimes Prevention Act
The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (HCPA) was enacted in October 2009. The federal hate crime law was passed to encourage state and federal law enforcement authorities to work together to address cases related to hate violence.
The statute expands the authority and jurisdiction of federal agencies to allow them to step in, investigate, and prosecute hate crimes when local and state authorities are unable or unwilling to act.
This hate crime legislation goes a step further to expand the scope of the groups that previously enjoyed federal protection against hate-motivated crimes.
This means that in addition to violence and/or intimidation meted on a racial, ethnic, religious, and nationality basis, the Act also includes crimes of intolerance centered on an individual’s gender, gender identity, disability, and sexual orientation.
Since its enactment more than a decade ago, the Department of Justice has successfully prosecuted dozens of cases and even defended the Act’s constitutionality in the wake of constitutional challenges.
Is Hate Speech a Crime
So far, we know what a hate crime is – a violent act or threat that targets a specific group of people based on their race, ethnicity, religion, or any other identity. The question is – Is hate speech considered a hate crime?
Right off the bat, no legal definition under US law exists for what would be deemed “hate speech.” As such, there’s no clear-cut definition for unpatriotic speech, rudeness, evil ideas, or any other form of speech most people would condemn.
Nonetheless, any form of expression through which a speaker intends to humiliate, incite hatred or vilify a class of persons or group of people based on their race, religion, ethnicity, gender, gender identity, sexual identity, national origin, or disability can be regarded as hate speech.
It’s important to mention at this point that hate speech in itself is a First Amendment right. This constitutional protection is enforced on the foundation that the spirit of the First Amendment is to allow citizens to participate in robust debate on issues of public interest, even when such debates degenerate into offensive, distasteful, or hateful speech that instills fear, anger, or grief in others.
The existing First Amendment jurisprudence asserts that hate speech only becomes criminal when it comprises threats of violence against an individual, a class of persons, or a group of people, or if it is used to incite imminent illegal activity.
In other words, if “hate speech” is used to incite violence against an individual or group based on their race, religion, ethnicity, sexual orientation, or any other kind of identity, it effectively becomes a crime.
Hate Crime Laws by State
Currently, 47 states and the District of Columbia have passed and enacted hate crime legislation. While the specific definition of what counts as a hate crime may vary from state to state, most laws generally define it as a crime committed against an individual because of their actual or perceived racial, religious, and ethnic identity, or any other class of protected characteristics.
In some states, hate crime legislation also protects individuals based on their political affiliation, gender expression or identity, or homelessness.
Protected Characteristics
The classifications of what would be considered “protected characteristics” vary widely from state to state. However, in most states, the legislation in place outlaws crimes that target individuals based on their race, religion, ethnicity, disability, and gender.
Several of them had not initially provided legal protections against crimes that targeted people based on their gender expression, gender identity, and sexual orientation.
As of the end of 2020, however, 30+ states amended their laws to include protection against sexual orientation bias, with 20+ of these states offering protection to individuals who are victimized based on their gender identity and gender expression.
Perceived Characteristics
Many states have also enacted laws designed to protect victims from hate or bias based on their perceived characteristics. This is regardless of whether or not those perceived characteristics are correct.
For instance, it is considered a hate crime for someone to physically assault another individual on the belief (mistaken or otherwise) that the person is Muslim. They are still criminally liable even if it turns out that the individual in question is not Muslim.
What Do State Hate Crime Laws Prohibit
Most states generally have three types of laws that criminalize hate crimes.
1. Protection for Institutional Targets
This category of state laws makes it illegal to destroy or vandalize institutions. They include laws that criminalize the defacement and/or destruction of a church, mosque, synagogue, or any other place used for religious worship.
2. Protection for Individuals Based on Their Membership in a Protected Class
These laws make it a crime to use violence or threaten the use of violence against individuals based on their belonging to a protected class. State laws in California, for instance, make it a crime to intimidate, threaten, or injure someone because of their race, religion, gender, sexual orientation, or nationality.
3. Enhanced Penalties for the Underlying Crimes
In such instances, the state prosecutors charge the defendant with the underlying criminal offense, over and above the hate crime charge they’re facing.
Underlying crimes may include arson, assault, or murder. At the point of sentencing, the prosecutor asks for an enhanced penalty since the underlying offense was motivated by bias or hate.
As a result, a misdemeanor assault charge could be elevated to a felony assault based on racially, ethnically, or religiously motivated crime.
While some state laws may allow for enhanced penalties, others limit those protections applying them only to violent crimes or particular offenses such as assault, arson, or harassment.
How State Prosecutors Prove Intent in Hate Crimes
It’s important to keep in mind that not all crimes committed against members belonging to a protected class are considered hate crimes.
For instance, simply because an Asian person was assaulted in a robbery incident does not make the offense an Asian hate crime. If a woman was sexually assaulted by unknown assailants, it does not make it a gender hate crime.
It is only considered as such if the criminal act in question was meted against the victim because of their membership in a protected class.
In the examples above, if there’s no evidence that the Asian individual was assaulted becauseof their race or ethnicity or that the woman was assaulted becauseof their gender, then these crimes would not be prosecuted as hate crimes.
On the other hand, if it can be proven that these individuals were specifically targeted because of their protected characteristics, state prosecutors would elevate the charges to hate crimes.
However, the burden of proof lies with the prosecutors proving to the jury, beyond a reasonable doubt, that the defendant committed the crime because of the victim’s race, ethnicity, gender, or any other illicit reason.
Since proving intent can be a difficult feat, evidence that would be deemed relevant to the case would be:
- The defendant’s admission that the criminal act was hate or bias-motivated; or
- The defendant’s use of hate slurs at the time of committing the crime.
In most cases, prosecutors usually go after hate crime convictions in the presence of clear-cut evidence of the existence of bias on the defendant’s part.
For instance, if, in the assault and robbery incident of the Asian individual, the perpetrators went on to spray-paint derogatory slogans regarding the victim’s race or ethnicity, it would be compelling evidence that the crime was motivated by hate or bias.
Hate Crime Penalty
While most state laws carry stiff hate crime penalties, some states also offer civil remedies in addition to the criminal penalties that exist in law.
Criminal Penalties
The penalties for hate crimes vary depending on the state where the crime occurs. Nonetheless, in most state laws, hate crimes are classified as felonies. A felony is a crime that’s punishable by more than one year behind bars.
Additionally, some states allow for penalty enhancements which may, in effect, raise the level of the offense – say, from a misdemeanor to a felony or from a second-degree felony to a first-degree felony.
Under federal law, religious hate crimes, LGBT hate crimes, hate crimes by race, and any other hate-motivated offense provided for in the HCPA are punishable by 10 years to life behind bars in federal prison. Some hate-motivated crimes carry the death penalty.
Civil Remedies
In addition to the criminal penalties outlined above, 31 states and the District of Columbia allow victims to sue their hate crime perpetrators in civil court, in line with the applicable civil liability laws of that state. The court may order the defendant to pay damages (monetary compensation) to the victim.
Consult With an Attorney
If you’re the victim of a hate crime, ensure you get in touch with an experienced civil rights attorney as soon as possible. They have the legal expertise to give you the best defense for your case for the best possible outcome and ensure your rights are protected at every stage of the litigation process.
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