What is a Hate Crime?

gay-hate-crimesHate crimes are crimes committed against another because of a victim’s race, gender, national origin, religion, sexual orientation, or other protected status. The federal government and most states have laws or regulations that define some hate crimes as separate crimes in themselves; and federal and state governments also have laws to augment penalties for existing crimes when a crime is motivated by hatred or bias. The specific definition of a hate crime varies across jurisdictions, however most jurisdictions agree that certain acts, such as lynching, are hate crimes. Gay hate crimes are just one example of this type offense.

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 a 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 or not. In essence there are two types of hate-crime statues that are punishable by law. One type defines a hate crime as a discrete offense and provides stiff punishment for that offense, with ethnic intimidation always one degree higher than a base offense. For instance, menacing, according to Ohio statues, is a misdemeanor of the fourth degree, but menacing based on ethnicity is a more serious offense, classified as a third-degree misdemeanor and penalized more severely. A second version of hate-crime statutes enhance punishment for certain offenses that are motivated by hate. For instance, under Wisconsin law, an ordinary class A misdemeanor is punishable by a maximum fine of $10,000 or up to nine months in jail, or both (Wis. Stat. Ann. § 939.51(3)(a); add a hate-based intent to that class A misdemeanor, and you up the ante to a maximum fine of $10,000 and imprisonment for up to two years.

Constitutional issues are often raised by hate crime statutes. Two landmark Supreme Court cases focused on some of these constitutional issues in the early 1990s. In R.A.V. v. City of St. Paul, (1992), the Court struck down a local ordinance that outlawed placing on public or private property a symbol or object likely to arouse “anger, alarm, or resentment . . . on the basis of race, color, creed, religion, or gender.” The defendant had been charged under the ordinance after burning a cross in the yard of an African American family. Even though the “speech” at issue fell into the analytical category of “fighting words,” which the Court had previously maintained was of low constitutional value, the Court held that the ordinance was based on a personal viewpoint and thus facially unconstitutional.

Later, in Wisconsin v. Mitchell, (1993), the Court upheld, against a First Amendment challenge, a state statute that increased a defendant’s punishment for battery because he selected his victim on the basis of the victim’s race. In a unanimous opinion, the Wisconsin Court rejected the defendant’s argument, adopted by the lower court, that the penalty enhancement represented punishment for bigoted thought. The state could legitimately punish criminal conduct motivated by bias more than the same criminal conduct without such motivation because of the greater harm likely to flow from such bias. After R.A.V. and Mitchell, hate crimes statutes in the form of penalty enhancements became the preferred form of hate crime enforcement at both federal and state levels.

Defenses for hate crime charges, including gay hate crimes, center on whether or not the hate crime conviction would violate a person’s First Amendment rights and the concept of due process. Sometimes laws against hate crimes conflict with rights under the First Amendment to the United States Constitution, allowing those charged with a hate crime a valid defense. Generally, the First Amendment protects a citizen’s right to the free expression of thoughts. However, the courts have ruled, that at times, First Amendment rights may give way to the greater public good. In determining the constitutionality of hate-crime legislation, a primary question is whether the prohibited speech deserves First Amendment protection or not.

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