Archive/File: orgs/canadian/canada/justice/hate-motivated-violence/hmv-005-05 Last-Modified: 1997/01/21 Source: Department of Justice Canada Footnotes ------------- 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 Supp.). 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 Sections 241 and 242 of 18 U.S.C., for example, were originally enacted by the American Congress during the Reconstruction era after the American Civil War in order to protect blacks.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 P.P.). 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 4575.] 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 conviction. 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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