The vast majority of states have made hate crimes, motivated by bias or prejudice, illegal, but some jurisdictions have gone further, granting victims the right to file a civil lawsuit for compensation.
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Hate crimes are crimes, usually of a violent nature, in which one person targets their victim due to the victim's membership, either real or assumed, in a particular social group or race. Another way to think about hate crime is that it's crime driven by prejudice or bias.
What Is A Hate Crime?
Hate crime can be anti-Semitic, anti-black, anti-trans and, though controversial to some, anti-white. It's about your membership (or perceived membership) in that group or category of individuals - what the group or category actually is is of less importance.
With that being said, there are realities of prejudice, especially in the United States, that we have to take into account. Certain groups (or perceived groups) are just more likely to be vulnerable to hate crimes, even though, in practice, confirming the prejudice-related motivations of a criminal offender can be difficult.
In terms of raw numbers, a plurality of hate crimes are motivated by anti-black prejudice, according to the latest statistics from the FBI. As a share of the population, however, anti-Semitism remains the leading cause of hate crime. We've also observed an increase in Anti-Muslim and anti-white crime over the past three years.
How Do Hate Crime Laws Work?
Federal law prohibits a wide range of hate crimes, but your own state may have its own, more-detailed rules.
The Civil Rights Act
In 1968, the Civil Rights Act outlawed the actions of anyone who "by force or by threat of force, injure[s], intimidate[s], or interfere[s] with anyone who is engaged in six specified protected activities, by reason of their race, color, religion or national origin." Those six protected activities came down to:
- public education
- jury service
- enjoyment of public accommodations (e.g. staying at a hotel or eating at a restaurant)
- helping someone else engage in the first 5 activities
This first American definition of hate crime, as we can see, was motivated by the laudable desire to empower members of stigmatized groups to exercise their civil rights more fully by criminalizing anyone who attempted to interfere with their ability to enjoy a public education, equal employment opportunities, freely-available housing options, the availability of privately-offered goods and services and jury service, a cornerstone of the American legal system.
Changing Definitions & Categories
At the same time, we can see that the 1968 federal definition of hate crime is both broad and narrow. It's broad in the sense that it criminalizes certain acts that aren't normally criminal. You can't "interfere" with a person's ability to rent an apartment because they're black, but you have every right to do so if they don't have enough money to pay the rent.
It's narrow, though, because it doesn't yet increase or alter the penalties imposed for acts that are already considered criminal. It applies, in the main, to what we consider federally-protected activities, rather than criminal activities prohibited by state laws.
In 1988, Congress added a new protected class to the Civil Rights Act, making it illegal to use force or the threat of force to "injure, intimidate or interfere" with a person's protected conduct based on familial status.
This addition was intended to deter discrimination within the housing market, where landlords, prior to the legal change, could deny housing to families with young children, pregnant women and people who were attempting to adopt children.
In 1996, the Church Arson Prevention Act, spurred by a drastic increase in the burning of black churches in the American South, made it a federal crime to "deface, damage or destroy religious real property, or interfere with a person's religious practice, in situations affecting interstate commerce."
The Act increased the prison sentence for "defacing or destroying any religious real property because of race, color or ethnic characteristics" of the people associated with the property from 10 years to 20 years in jail.
Gender, Sex & Disability
A 2009 amendment, named in honor of Matthew Shepard and James Byrd Jr., two men, one gay and the other black, who were brutally murdered, expanded the federal definition of hate crime to include crimes based on gender, disability, gender identity and sexual orientation.
Moreover, the Shepard Byrd Act extended the Civil Rights Act into the world of traditional criminal law, making it illegal to "willfully cause bodily injury, or attempt to do so using a dangerous weapon, because of the victim's actual or perceived race, color, religion, or national origin."
State Laws Against Bias-Motivated Crime
As the federal laws around hate crime continued to develop, states started passing their own prohibitions against bias-motivated activities.
In 1978, California enacted the first such law, increasing the penalty for murders that are motivated by prejudice based on race, religion, color or national origin. Over the next three decades, most other states followed suit, passing their own laws to enhance the penalties for bias-motivated crimes.
The Right To File A Civil Lawsuit
Today, we have a patchwork of state laws that make certain prejudice-related crimes illegal or enhance the penalties for a crime when the perpetrator's actions were motivated by bias.
Many states have also created a private cause of action for victims of hate crime. In other words, most states have made it possible for victims to file their own private lawsuits, in pursuit of financial compensation, for hate crime.
What Do State Hate Crime Laws Cover?
The vast majority of states currently have hate crime laws that prohibit and increase penalties for crimes motivated by bias on the basis of race, religion, ethnicity, sexual orientation, gender and disability.
A growing number of states are including gender identity within this scheme, though a number of jurisdictions in the South and Midwest have yet to do so.
A minority of states, centralized again in the South but also including Connecticut and Maine, have criminalized the interference in religious worship. 16 states have increased criminal penalties for age-motivated crimes. There are four states with no hate crime laws on the books:
In addition to these four states, a few jurisdictions have passed only minimal protections. In South Carolina, for example, it's a crime to interfere with someone's right to religious worship.
The State has also increased penalties for crimes motivated by the victim's political affiliation, but no similar restriction (beyond federal law) exists in regard to race, religion or ethnicity. Likewise, Arkansas has a prohibition against religious interference, but nothing else.
Increased Criminal Penalties
Despite their differences, most of these state laws have one thing in common. They don't define new criminal acts; they increase the penalties associated with a pre-existing criminal offense. In the modern world, hate crime doesn't tell us much about the nature of a crime.
Most normal crimes can become hate crimes, if the perpetrator's illegal actions are motivated by prejudice or bias. The designation of hate crime increases the penalties attached to any number of crimes that can also be committed without the element of prejudice.
How Does "Hate Speech" Fit In?
Hate crime, then, has become an additive, an element that we incorporate into our analysis of crime, rather than being a crime in its own right. Another important thing to note? Hate crime isn't the same as hate speech. In fact, many Constitutional scholars argue that hate speech isn't a real category of behavior, at least under American legal principles.
Our right to speech and expression, as American citizens, is broadly protected by the First Amendment. As such, derogatory statements, even ones based in hateful and abhorrent prejudices of the speaker, aren't considered illegal. The right to speak freely is the cornerstone of a free society. Hate speech becomes illegal when it crosses over into the realm of action, usually through verbal threats of injury or death.