Hate Crimes: Laws and Penalties
Crimes committed because of the victim's race, gender, and other protected qualities are hate crimes. Anyone can be a victim of a hate crime.
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Hate crimes, or bias-motivated crimes, are crimes committed because the victim is a member of a certain group, such as a racial or religious minority. Today, 45 states and the District of Columbia have laws against hate crimes. In 2011, according to a report on hate crimes issued by the FBI, law enforcement agencies reported more than 6,000 hate crimes.
In addition to state laws, there are also several federal laws against hate crimes, including the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009, which offers greater protection to victims than some state laws. For more information on Matthew Shepard and James Byrd, Jr., see Hate Crimes That Changed History.
What is a Hate Crime?
While the definition of hate crime laws varies from state to state, in general, it is a crime committed against an individual because of the victim’s:
- ancestry or national origin
- disability, or
- sexual orientation.
Some hate crime legislation also protects people based on homelessness, gender identity or expression, and political affiliation. Hate crime laws protect victims based on their actual or perceived characteristics. For example, a person who attacks a Sikh on the mistaken belief that the Sikh is Muslim or Arab has still committed a hate crime. Not all of these categories are protected in every state. Some states, including Georgia, have no hate crime legislation; and in many states, laws against hate crimes are limited to crimes of violence.
Part of the idea behind hate crime legislation is that crimes motivated by bigotry or bias are not only crimes against the individual victim, but also pose a threat to an open and pluralistic society. Opponents of hate crime legislation argue that it the laws merely cater to special interest groups, and that there is no good public policy reason to distinguish between crimes motivated by bias and crimes committed for other reasons. Proponents of hate crime laws assert that victims targeted due to bias suffer greater psychological harm than others; and that racial, ethnic, and religious minorities and gay people are more likely to be targeted for—and therefore need greater protection from—violent crime.
However, hate crime laws protect everyone who is targeted for a crime motivated by bias, not just people who are members of a minority group. For example, every year, there are hate crimes motivated by anti-white bias, just as there are hate crimes motivated by bias against African Americans. Since everyone has a race, national origin, and so on, everyone is protected under hate crime laws when they are victimized because of their race or national origin. For more information, see Is Everyone Protected by Hate Crime Laws?
Types of Hate Crimes Legislation
There are generally three types of laws criminalizing hate crimes:
- Laws that protect an institutional target. These are laws prohibiting institutional vandalism (such as defacing a church, mosque, or synagogue).
- Laws that protect persons based on their membership in a specified group. These substantive offenses make it a crime to threaten or use violence against people because of their membership in a protected class, and
- Laws that add punishment when the crime has been prosecuted as an assault or under another general criminal law. Here, the defendant encounters sentencing enhancements, which impose greater (aggravated) punishment when the defendant has committed the crime because of bias against the victim.
For example, under Pennsylvania law, it is a crime to damage or deface a church or synagogue, or other place of religious worship. In California, it is a crime to injure, intimidate, or threaten a person due to the person's gender, race, nationality, sexual orientation, disability, or religion. Florida has a law that provides for aggravated sentences for hate crimes. There, for example, an assault that is committed due to a person’s sexual orientation is punished more severely than an assault that is committed due to a personal disagreement between the two people.
The First Amendment guarantees the right to free speech. Although defendants have challenged hate crime legislation on the ground that the law violate their rights to free speech, those challenges have generally not been successful so long as the law criminalizes bias-motivated conduct and not merely hateful thoughts or speech. (Wisconsin v. Mitchell, 508 U.S. 476 (1993).) In order to withstand First Amendment challenges, hate crimes legislation must be carefully drafted to avoid criminalizing thoughts or speech, even when that speech is offensive and hateful. For more information, see Do Hate Crime Laws Violate the First Amendment?
Not every crime committed against, say, a person who is gay is a hate crime. It becomes so only if it is committedbecause of the victim’s sexual orientation. For example, suppose that two teens deface a store owned by a Muslim. If there is no evidence that the victim’s religion had anything to do with the crime, then the vandalism is not a hate crime. However, if the teens intentionally sought out the store for vandalism because it was owned by a Muslim, then it is a hate crime.
In order to convict a defendant of a hate crime, the prosecutor must prove beyond a reasonable doubt to the jury that the defendant committed the crime because of the victim’s race, color, religion, or for some other prohibited reason. Proving that the defendant acted with hate crime intent can be difficult. For more information, see How Do Prosecutors Prove Hate Crimes? Relevant evidence might include:
- the defendant’s use of racial or ethnic slurs during the commission of the crime, or
- defendant’s admission that the crime was motivated by bias.
In practice, prosecutors generally seek hate crime convictions only when there is fairly obvious evidence of bias on the part of the defendant. For instance, in the vandalism example above, the defendant's spray-painted hateful slogans regarding the shopkeeper's religion would be powerful evidence that these feelings motivated the crime.
Criminal penalties for hate crimes vary from state to state but many hate crimes are felonies (crimes punishable by more than one year in prison). Under federal hate crime legislation, bias-motivated violence is punishable by ten years to life in prison, and some bias-motivated crimes are punishable by the death penalty. (18 USC §§ 245, 249.) For more information on federal prosecutions, see Federal Prosecutions for Civil Rights Violations.
In 31 states and the District of Columbia, people who commit violence, intimidation, or vandalism against others on account of the person’s race, religion, ethnicity, or membership in a protected group can be sued in civil court and ordered to pay damages (money) to the victim. Just as criminal hate crime laws vary from state to state, so do civil liability laws.
Obtaining Legal Assistance
If you are charged with a hate crime, contact a local defense attorney. An attorney can tell you how your case is likely to fare in court, depending on state law, and the assigned judge and prosecutor. An attorney can help you protect your rights.