A Hate Crime Is . . .

A Hate Crime Is . . .
This entry contains information applicable to United States law only

A crime motivated by racial, religious, gender, sexual orientation, or other prejudice.
A hate crime is based, at least in part, on the defendant's belief regarding the status of the victim. Hate-crime statutes were first passed by legislatures in the late 1980s and early 1990s in response to studies that indicated an increase in crimes motivated by prejudice. Approximately thirty states and the federal government have some form of hate-crime statute. Many localities have also enacted their own hate-crime ordinances.

The precise definition of a hate crime varies from state to state. Some states define a hate crime as any crime based on a belief regarding the victim's race, religion, color, disability, sexual orientation, national origin, or ancestry. Some states exclude crimes based on a belief regarding the victim's sexual orientation. Others limit their definition to certain crimes such as harassment, assault, and damage to property. In all states the victim's actual status is irrelevant. For example, if a victim is attacked by someone who believes that the victim is gay, the attack is a hate crime whether or not the victim is actually gay.

Generally, there are three types of hate-crime statutes. Two provide for punishment; the third type mandates only the collection of hate-crime data.

One version defines a hate crime as a discrete offense and provides stiff punishment for the offense. Under Ohio's statute, for example, any person who commits aggravated menacing, menacing, criminal damage or criminal endangerment, criminal mischief, or telephone harassment "by reason of the race, color, religion, or national origin of another person or group of persons" is guilty of the hate crime termed ethnic intimidation (Ohio Rev. Code Ann. § 2927.12 [Baldwin 1996]). Ethnic intimidation is always one degree higher than a base offense. For example, menacing is a misdemeanor of the fourth degree, but menacing based on ethnicity is a more serious offense, classified in Ohio as a misdemeanor of the third degree.

Another type of hate-crime law enhances punishment for certain offenses that are motivated by hate. In Wisconsin, for example, defendants who intentionally select their victims based at least in part on the victims' race, religion, color, disability, sexual orientation, national origin, or ancestry are subject to more severe penalties than they would receive in the absence of such hate-based intent (Wis. Stat. § 939.645 [1995]). Thus in Wisconsin, for a class A misdemeanor based on hate, the maximum fine is $10,000 and the maximum period of imprisonment is two years in jail or prison (Wis. Stat. Ann. § 939.645(2)(a)), whereas an ordinary class A misdemeanor is punishable by a maximum fine of $10,000 or up to nine months in jail, or both (§ 939.51(3)(a)). For a class B misdemeanor, a less serious crime, the maximum fine is $1,000 and the maximum imprisonment is 90 days in jail. If the class B misdemeanor is a hate crime, the maximum fine is $10,000 and the maximum sentence is one year in jail.

A third type of hate-crime statute simply requires the collection of statistics. On the federal level, the Hate Crime Statistics Act of 1990 (Pub. L. No. 101-275, 104 Stat. 140 [28 U.S.C.A. § 534 (1990)]) requires the Department of Justice to collect statistics on crimes that manifest evidence of prejudice. Data must be acquired for crimes based on race, religion, disability, sexual orientation, or ethnicity. The purpose of the act is to provide the data necessary for Congress to develop effective policies against hate-motivated violence, to raise public awareness, and to track hate-crime trends.

Laws against hate crimes may conflict with rights under the First Amendment to the U.S. Constitution. Generally, the First Amendment protects a citizen's right to the free expression of thoughts. However, the courts have ruled that First Amendment rights may give way to the greater public good. For example, there is no First Amendment protection for someone who falsely yells "Fire" in a crowded theater because such speech endangers the safety of others. Such expression may give rise to a disorderly conduct charge or similar charge. In determining the constitutionality of hate-crime legislation, a primary question is whether the prohibited speech deserves First Amendment protection.

In 1992 the U.S. Supreme Court struck down a St. Paul, Minnesota, ordinance on the ground that it violated the First Amendment (R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305 [1992]). In R.A.V. several juvenile defendants were tried and convicted after they allegedly assembled a crude wooden cross and set it on fire in the yard of an African American family in St. Paul. The teenagers were arrested and charged under St. Paul's Bias-Motivated Crime Ordinance (Minn. Legis. Code § 292.02). Under the ordinance a person who placed "on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika" and who had reason to know that the display would arouse anger or alarm in others based on "race, color, creed, religion or gender" was guilty of a misdemeanor.

The trial court dismissed the charge on the grounds that it was overbroad and unconstitutionally content based. Specifically, the court ruled that the statute criminalized too much behavior and infringed on First Amendment rights of free speech. The city of St. Paul appealed to the Minnesota Supreme Court, which reversed the trial court. The teenagers then appealed to the U.S. Supreme Court.

The High Court was unanimous in striking down the St. Paul ordinance. However, it was divided in its legal reasoning. According to the majority opinion, the ordinance violated the First Amendment. Justice Antonin Scalia, writing for the majority, declared the statute unconstitutional because it prohibited "otherwise permitted speech solely on the basis of the subjects the speech addresses." Scalia illustrated this point by noting that a government may proscribe libelous speech, but it may not proscribe only libelous speech that is critical of the government. The St. Paul ordinance violated this constitutional rule by proscribing only hate speech delivered through symbols.

In a separate opinion, the concurring justices argued that the majority opinion weakened previous First Amendment jurisprudence. Specifically, the majority opinion protected fighting words, a form of speech that provokes hostile encounters and is not protected by the First Amendment. By holding that "lawmakers may not regulate some fighting words more strictly than others because of their content," the majority had forced legislatures to criminalize all fighting words to legally prohibit the most dangerous fighting words.

*SNIP*
Hate-crime laws complicate the work of police officers by requiring them not only to capture criminals and investigate their criminal acts, but also to conduct a broad investigation of their personal life to determine whether a crime was motivated by prejudice. This determination may be difficult to make, and most laws offer little assistance in defining motivation.
*SNIP*

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