How Do Prosecutors Prove Hate Crimes?

The defendant's actions, words, and affiliations often supplies the best evidence of his state of mind when committing a crime--including a hate crime.

Hate crimes, sometimes called bias-motivated crimes, are crimes committed against the victim because of the victim’s actual or perceived race, national origin, ethnicity, religion, or sexual orientation. Hate crimes legislation varies from state to state (some states have no hate crime laws), and some states also protected people who are victimized due to their gender, political affiliation, homelessness, or disability. For general information on hate crimes, see Hate Crimes: Laws and Penalties.

To secure a conviction for a hate crime, the prosecutor must convince the judge or jury that the defendant committed the underlying criminal act (such as assault or vandalism), and did so with the requisite intent. Not every crime committed against a racial minority or a person who is gay is a hate crime. In order to convict a defendant of a hate crime, the prosecutor must prove beyond a reasonable doubt that the defendant committed the crimebecause of the victim’s race or sexual orientation or for some other prohibited reason. Proving that the defendant acted with hate crime intent can be challenging, unless the defendant admits (to police or others) that the crime was motivated by bias.

Evidence of Bias

Aside from defendant’s own statements, relevant evidence of bias might include:

  • defendant’s membership in a group that espouses hatred for certain groups (such as a black separatist group or an online chat group that opposes homosexuality)
  • defendant’s possession of literature or symbols associated with bias, such as Nazi memorabilia or anti-Semitic texts
  • defendant’s own writings, graffiti, or tattoos
  • the use of biased slurs or graffiti during or at the site of the crime
  • the date of the incident, if it coincides with a significant holiday or anniversary, and
  • other hate crimes committed by defendant.

For example, in 2012, a man set a fire in a mosque in Toledo, Ohio. He was convicted of a hate crime and the prosecutor presented evidence that he had previously made anti-Muslim statements and said that he wanted to burn down the mosque. In court, the defendant said that he believed that most Muslims are terrorists.

Note that much evidence of bias, such as statements that are hateful (or even violent) and belonging to groups that promote hate, are not crimes in and of themselves. Hate crimes laws punish acts motivated by animus, not thoughts or words. The defendant in Ohio was free to hate Muslims and even say hateful things; it was only when he committed arson that he committed a crime. For more information on the intersection of free speech and hate crime legislation, see Do Hate Crime Laws Violate the First Amendment?

Are Prosecutors Reluctant to File Charges?

Some advocates for victims of hate crimes assert that local prosecutors are reluctant to filed hate crime charges, particularly in communities where bias is widespread. For example, after teenagers yelling ethnic slurs beat to death a Mexican immigrant in Pennsylvania, local police participated in a cover up of the crime and a state jury convicted two of the defendants of misdemeanor assault. Federal prosecutors stepped in and charged the defendant with a federal criminal civil rights violation, which resulted in a longer prison sentence. For more information, see Federal Prosecutions for Civil Rights Violations.

Obtaining Legal Assistance

If you are charged with a hate crime, talk to a local criminal defense attorney. An attorney can make certain that you are not convicted unless the crime is proved beyond a reasonable doubt.

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