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Shofar FTP Archive File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-005-05

Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-005-05
Last-Modified: 1997/01/21
Source: Department of Justice Canada


95. For a discussion of the legislative history of this
bill, see J. M. Fernandez, "Bringing Hate Crime into Focus
_The Hate Crime Statistics Act of 1990, Pub. L. No. 101-275"
(1991) 26 Harv. C.R-C.L. L. Rev. 261. See also J. B. Jacobs
and B. Eisler, "The Hate Crime Statistics Act of 1990"
(1993) 29 Crim. L. BulL 99 for a critical analysis of the
Act and its guidelines.

96. Pub. L. 101-275, 104 Stat. 140 (1990).

97. Fernandez, supra, footnote 1, pp. 285-286.

98. Religious Vandalism Act, 18 U.S.C.A.  247 (West 1989

99. 18 U.S.C.A. 241 (West 1993 P.P.).

100. 18 U.S.C.A. 242 (West 1993 P.P.).

101.18 U.S.C.A.  245 (West 1969 and 1993 P.P.).

102. 42 U.S.C.A.  3631 (West 1992 P.P.).

103. Sections 241 and 242 of 18 U.S.C., for example, were
originally enacted by the American Congress during the
Reconstruction era after the American Civil War in order to
protect blacks. A clear example of a hate-motivated crime
prosecuted under these sections is United States v. Price,
383 U.S. 787 (1966), where those sections were used to
prosecute the police officers and other individuals who
murdered three civil rights workers in Mississippi in 1964.
Prosecutions under these sections require that it be proved
that the accused intended to deprive the victim of his or
her civil rights. See, e.g., Screws v. United States, 325
U.S. 91 (1945). For a discussion of criminal liability
arising out of a violation of these federal civil rights
provisions, see Annotation, "Criminal Liability, Under 18
USC  241, 242, for Depriving, or Conspiring to Deprive, A
Person of His Civil Rights_Supreme Court Cases", 20 L Ed 2d
1454. For an example of prosecutions under 18 U.S.C.  245
and 42 U.S.C.  3631, see United States v. Johns, 615 F.2d
672 (1980, 5th Cir.), cert. denied, 449 U.S. 829 (1980),
where members of the Ku Klux Klan had fired into the homes
of black community leaders to discourage interracial living
arrangements and dating.

104. See, e.g., G. L. Padgett, "Racially-Motivated Violence
and Intimidation: Inadequate State Enforcement and Federal
Civil Rights Remedies" (1984) 75 J. Crim. L. & Criminology
p. 103; C. H. Jones, "An Argument For Federal Protection
Against Racially Motivated Crimes: 18 U.S.C.  241 And The
Thirteenth Amendment" (1986) 21 Harv. C. R-C.L. L. Rev. p.
689; L. Pantell, "A Pathfinder on Bias Crimes and the Fight
Against Hate Groups" (1991) Legal Reference Services Q. 39.
In addition, federal civil rights law allows victims to
launch civil actions for deprivation of these rights. See,
e.g., 42 U.S.C.A.  1983 (civil action for deprivation of
any rights secured by the Constitution and its laws by any
person acting under colour of any statute); 42 U.S.C.A.
1985(3) (civil action for conspiracy depriving a person of
any right as a citizen of the United States).

105 Hate Crimes Sentencing Enhancement Act of 1992, H.R.
4797, 102d Congress, 2d Session (1992).

106. Ibid.

107. Anti-Defamation League, 1992 Audit of anti-Semitic
Incidents (New York: Anti-Defamation League, 1993), p. 33.
According to that audit the bill will be one of the League's
top priorities in the 103rd Congress.

108. See Editorial, "Crime and Punishment", The New
Republic, October 12, 1992, p. 7.

109.  L. Greenhouse, "High Court to Rule on Tough Penalties
in Hate-Crime Laws", The New York Times, Tuesday, December
15, 1992, pp. Al, B14. 110. See, e.g., Fla. Stat. Ann.
876.17-.19,  876.15 (West 1976 and 1993 P.P.); N.Y. Penal
Law  155.30(9) (Consol. 1992 Supp.).

111. Anti-Defamation League of B'nai Brith, ADL Law Report,
Hate Crimes Statutes: A 1991 Status Report (New York: Anti-
Defamation League, 1992), pp. 4-5.

112. Ibid., s. 1, p. 4

113. Ibid, footnote 17, s. 2, p. 4.

114. Ibid footnote 17, p. 2.

115. Ibid., footnote 17, p.2.

116. Ibid, footnote 17, p. 1.

117.  Or. Rev. Stat.  166.155 (1989), set out in P. B.
Gerstenfeld, "Smile When You Call Me That!" The Problems
With Punishing Hate Motivated Behavior" (1992) 10 Behavioral
Sciences and the Law,pp. 262-263.

118. Ohio Rev. Code Ann.  2927.12 (Page 1987).

119 .N.Y. Penal Law  240.30 (Consol. 1992 Supp.). For a
discussion of bias crime in New York and of so-far stalled
legislative efforts to strengthen the criminal law in this
area, see A. Abramovsky, "Bias Crime: A Call for Alternative
Responses" (1992) 19 Fordham Urb. L.J. 875; State of New
York, Governor's Task Force on Bias-Related Violence [Final
Report] (New York: Division of Human Rights, 1988).

120. Ill.. Ann. Stat., ch. 38, para. 12-7.1 (Smith Hurl 1992

121. See State v. Plowman, 838 P.2d 558 (Or. 1992); State v.
Hendrix, 813 P.2d 1115 (Or. App. 1991); State v. Beebe, 680
P.2d 11 (Or. App. 1984); Dobbins v. State, 605 So.2d 922
(Fla. App. 5 Dist. 1992); People v. Grupe, 532 N.Y.S. (2d)
815 (N.Y. City Crim. Ct. 1988).

122. State v. Mitchell, 485 N.W.2d 807 (Wis. 1992); State v.
Wyant, 597 N.E.2d 450 (Ohio 1992).

123. Wisconsin v. Mitchell, decided in the United States
Supreme Court, on June 11, 1993, No. 92-515, 61 LW 4575
(unreported). [Note: The decision, at time of writing, is
found in 61 United States Law Week 4575, short form 61 LW

124. State v. Mitchell, N.W.2d 807 (Wis. 1992). The court
therefore reversed the sentence and remanded the case to the
lower court for resentencing on the aggravated battery

125. Barclay v. Florida, 463 U.S. 939 (1983).

126.  RA. V. v. City of St. Paul, 505 U.S._, 120 L. Ed. 2d
305 (1992). For a discussion of the effect of the R.A. F:
case on freedom of expression, see A. R. Amar, "The Case of
the Missing Amendments: RA. V. v. City of St. Paul" (1992)
106 Harv. L. Rev. p. 124.

127. In RA. V. v. City of St. Paul, ibid., the United States
Supreme Court ruled on the constitutionality of an ordinance
passed by the city of St. Paul, Minnesota, that made it a
misdemeanour to place on public or private property a
symbol, object, etc., including a burning cross, which one
knows or has reasonable grounds to know arouses anger,
alarm, or resentment in others on the basis of race, colour,
creed, religion, or gender. The accused had been prosecuted
under the ordinance for burning a cross inside the fenced
yard of a black family. In an opinion delivered for the
Court by Justice Scalia, it was held that the ordinance was
unconstitutional. Briefly, the majority of the Court held
that the ordinance was unconstitutional because it only
criminalized a specific category of "fighting words" --
those that were messages of bias-motivated hatred -- while
permitting the use of "fighting words" in connection with
other ideas. Selectively criminalizing these kinds of
fighting words because of the hateful idea the message
conveyed amounted to content-based discrimination that
violated the First Amendment.

128. Mitchell, ibid, p. 4578

129. Mitchell, supra, footnote 29, p. 4578 per Rehnquist,
C.J.: The sort of chill envisioned here is far more
attenuated and unlikely than that contemplated in
traditional "overbreadth" cases. We must conjure up a vision
of a Wisconsin citizen suppressing his unpopular bigoted
opinions for fear that if he later commits an offense
covered by the statute, these opinions will be offered at
trial to establish that he selected his victim on account of
the victim's protected status, thus qualifying him for
penalty-enhancement.... We are left ... with the prospect of
a citizen suppressing his bigoted beliefs for fear that
evidence of such beliefs will be introduced against him at
trial if he commits a more serious offense against person or
property. This is simply too speculative a hypothesis to
support Mitchell's overbreadth claim.

130. Cal. Penal Code,  422.6 (West, 1993 P.P.). The Penal
Code also provides that where a person is not punished under
section 422.6, the fact that the crime was committed against
a person in violation of the person's civil rights as set
out in section 422.6 is an aggravating factor that can raise
a crime not punishable by imprisonment in the state prison
to one punishable by imprisonment in the state prison or
county jail not to exceed one year, or by a fine not to
exceed ten thousand dollars, or by both, in circumstances
where, e.g., actual physical injury is caused ( 422.7); as
well, except in cases punished under Section 422.7, a person
who commits a felony or attempts to commit a felony or acts
in concert with another because of the victim's race,
colour, religion, nationality, country of origin, ancestry
or sexual orientation must receive a higher jail term (
422.75). Massachusetts also has created a statute that
allows for criminal prosecution of a breach of a person's
civil rights under the constitution or laws of that state or
of the United States. See Mass. Ann. Laws c. 265  37 (Law,
Co-op. 1992). Additional provisions also allow for civil
suits for interference of a person's rights secured by these
constitutions or laws. See, e.g., Mass. Ann. Laws c. 12  I
IH (Law, Co-op. 1988) (the attorney general of the state may
bring a civil remedy for injunction or other civil remedy);
Mass. Gen. L. c. 12 s. 11 I (Law, Cc op. 1988) (private
persons may sue for a violation of their rights). For a
discussion of the Massachusetts law in this regard, see V.
N. Lee, "Legislative Responses to Hate-Motivated Violence:
The Massachusetts Experience and Beyond" (1990) 25 Harv. CR-
C.L. L. Rev., p. 287.

131. The ADL's status report on hate crimes statutes
indicates that 17 states had hate crimes data collection
statutes. 1991 Status Report, supra, footnote 17, pp. 22-23.

132. See Fla. Stat. Ann.  877.19 (West 1993 P.P.).

133. Anti-Defamation League &: United States Conference on
Mayors, Addressing Racial and Ethnic Tensions: Combatting
Hate Crimes in America's Cities (New York: Anti-Defamation
League, 1992), p. 5.

134. See C. Wexler and G. T. Marx, "When Law and Order
Works: Boston's Innovative Approach to the Problem of Racial
Violence" (April 1986) Crime & Delinquency, 32(2), pp. 210-
216. They add, at p. 207:

     Boston offers an example of a rare contemporary effort
     to cope with the problems of racial violence and
     harassment through an active law enforcement effort.
     What is more, it appears to be relatively successful.
     In 1979 (the first full year for which separate
     statistics were collected), 533 racial incidents were
     reported. Yet, by 1984, the number had dropped by two-
     thirds to 181. The Boston Police Department, through
     the creation of its Community Disorders Unit (CDU),
     played a major role in this decline.

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