The Nizkor Project: Remembering the Holocaust (Shoah)

Hate-Motivated Violence

Foreign Jurisdictions
State Laws Specific Hate Crime Laws

The model for this kind of law is, in large part, that proposed by the Anti-Defamation League (ADL). Its model legislation provides for crimes of institutional vandalism and intimidation; a civil action that is available to a victim for injury or damage to property arising out of this criminal conduct; and requirements for the collection, reporting and use of information about hate crimes by police officers and for the training of police officers in order to identify such crimes.<111>

The crime of institutional vandalism is generally defined as knowingly vandalizing, defacing or damaging (a) any church, synagogue or place used for religious worship or other religious purpose; (b) any cemetery, mortuary or other facility used for the purpose of burial or memorializing the dead; (c) any school, educational facility or community centre; (d) generally, any grounds adjacent to these structures; and (e) any personal property contained therein. Depending on the degree of damage, the crime is treated as a misdemeanour or as varying degrees of felonies. <112>

The crime of intimidation is defined as follows:

A. A person commits the crime of intimidation if, by reason of the actual or perceived race, colour, religion, national origin or sexual orientation of another individual or group of individuals, he violates Section __________ of the Penal Code. (insert code provision for criminal trespass, criminal mischief, harassment, menacing, assault, and/or other appropriate statutorily proscribed criminal conduct).

B. Intimidation is a misdemeanour/felony (the degree of the criminal liability should be at least one degree more serious than that imposed for commission of the offense).<113>

Thus, this crime of intimidation requires, in addition to the basic criminal conduct, proof of the perpetrator's motive or intent in targeting the victim or the victim's property because of his or her race, colour, religion, national origin or sexual orientation.<114> The result is a more severe penalty than that imposed for the basic crime. According to the ADL, the enhanced penalties should be sufficiently severe to have their desired deterrent impact. As well, the statute is most effective when it increases the penalties for the broadest range of criminal conduct.<115> The ADL adds: "Presently, almost every state in the nation has some form of hate crimes legislation. More than one-half of these states have enacted laws based on, or similar to, ADL's model hate crimes statute."<116>

The definitions of these hate crimes vary from state to state. For example, Oregon has a crime of intimidation in the second degree (where a person, in part, intentionally threatens to inflict serious physical injury to another person or to cause substantial damage to another's property, because of the person's perception of the other's race, colour, religion, national origin or sexual orientation), and a crime of intimidation in the first degree (where two or more persons, in part, intentionally, knowingly, or recklessly cause physical injury to a person because of such perception).<117> Ohio has an ethnic intimidation statute that increases the penalty for the crimes of aggravated menacing, menacing, criminal damaging or endangering, criminal mischief or telephone harassment, when committed by reason of the race, colour, religion, or national origin of another person.<118> New York has a crime of aggravated harassment in the second degree when a person, in part, with intent to harass, annoy, threaten or alarm another person, strikes, shoves, or kicks another person because of the race, colour, religion or national origin of such person.<119> The hate crimes statute of Illinois affords protection to persons attacked by reason of their race, colour, creed, religion, ancestry, gender, sexual orientation, physical or mental disability or national origin, and provides, in addition, that the injured person may bring a civil action for damages, an injunction or other appropriate relief for the injury suffered. <120>

The important legal issue that arose in relation to the legislation creating these hate crimes was whether or not such legislation was constitutional. The state courts were divided on this issue. The courts in Oregon, Florida and New York held that their hate crimes legislation was constitutional.<121> However, the courts in Wisconsin and Ohio held that their hate crimes legislation was not constitutional, largely on the ground that such crimes, by increasing the penalty for the basic crime because of the accused's hateful motivation, violated the freedom of speech guarantee of the First Amendment of the Constitution.<122> In June 1993, the United States Supreme Court resolved this uncertainty by holding that such hate crimes statutes were indeed constitutional .

In Wisconsin v. Mitchell,<123> the accused was one of a group of young black men. After discussing a scene from the movie "Mississippi Burning", which showed a white man beating a young black, the group moved outdoors where a young white teenager was seen walking on the other side of the street. The accused said, "You all want to fuck somebody up? There goes a white boy; go get him." He counted to three, pointed in the boy's direction, and the group rushed the boy, beating him severely. The accused was convicted of aggravated battery, but because he was found to have selected the victim because of the victim's race, the penalty was increased pursuant to the Wisconsin hate crime statute to four years in jail (the maximum otherwise would have been two years). The Wisconsin Supreme Court, however, held that the hate crimes statute violated the First Amendment, the freedom of speech guarantee of the United States Constitution, because it sought to punish one's motive for acting, and that it was constitutionally overboard because it would have a "chilling effect" on the exercise by others of freedom of speech.<124>

On appeal, the United States Supreme Court rejected these arguments. Chief Justice Rehnquist, delivering the unanimous opinion of the Court, argued that, traditionally, sentencing judges have considered a wide variety of factors in determining what sentence to impose on a convicted accused. The accused's motive for committing the crime was one important factor. The Court pointed out that in the case of Barclay v. Florida,<125> it had allowed the sentencing judge to take into account the accused's racial animus in determining if the accused should be sentenced to death, and, in effect, the same principle was applied by the Wisconsin Legislature when it decided to increase penalties in relation to bias-motivated crimes. As regards motive, the Court argued that motive plays the same role under the Wisconsin statute as it does under federal and state anti- discrimination laws, which had been previously held to be constitutional. The Court distinguished its decision in R.A. V. v. City of St. Paul<126> from this case, pointing out that whereas the R.A. V. case involved an ordinance directed at expression,<127> the statute in this case aimed at conduct unprotected by the First Amendment. The Court added:

[T]he Wisconsin statute singles out for enhancement bias-inspired conduct because this conduct is thought to inflict greater individual and societal harm. For example, according to the State and its amici, bias- motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.... The State's desire to redress these perceived harms provides an adequate explanation for its penalty enhancement provision over and above mere disagreement with offenders' beliefs or biases. As Blackstone said long ago, "it is but reasonable that among crimes of different natures those should be most severely punished, which are the most destructive of the public safety and happiness." 4 W. Blackstone, Commentaries *16. <168>

And, the Court found no merit in the contention that the statute was overboard.<129> Civil Rights Provisions

Some states have created statutory provisions that give rise to criminal liability for a violation of a person's civil rights under the state or federal constitution or laws. For example, the California Penal Code provides, in part, that no person, whether or not acting under colour of law, shall by force wilfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise of any right secured to him under the constitution or laws of the state or of the United States because of the other person's race, colour, religion, ancestry, national origin, disability, gender, or sexual orientation. However, no person shall be convicted of that crime based on speech alone, except upon a showing that the speech itself threatened violence against a specific person or group of persons and that the defendant had the apparent ability to carry out the threat. It is also a crime to knowingly deface, damage or destroy the property of any person for the purpose of intimidating or interfering with the free exercise of such rights because of the other person's race, colour, religion, ancestry, national origin, disability, gender, or sexual orientation.<130>

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