Definitions; State/federal laws

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What makes a crime into a hate crime?

The FBI's hate-crime report for 2002 quotes a statement about hate crimes by the American Psychological Association:

"...not only is it an attack on one's physical self, but is also an attack on one's very identity." Attacks upon individuals because of a difference in how they look, pray or behave have long been a part of human history. It is only recently, however, that our society has given it a name and decided to monitor it, study it and legislate against it." ₁

The FBI defines a hate crime (a.k.a. bias crime) to be:

"a criminal offense committed against a person, property or society which is motivated, in whole or in part, by the offender's bias against a race, religion, disability, sexual orientation, or ethnicity/national origin." ₂

For some reason, they left out gender and gender identity.

Public Law #103-322A, a 1994 federal law, defines a hate crime as:

"a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person." ₃

Again, they left out gender identity, which is to be expected in a law made a decade and a half ago. Gender identity refers to transgendered persons and transsexuals; widespread concern for their equal rights is a recent development.

It is important to realize that crimes motivated by a hatred of a person's sexual orientation -- whether the victim is a heterosexual, bisexual or homosexual -- are already defined as hate crimes. However, federal laws only attach an extended sentence penalty to those hate crimes that are motivated by racism, sexism or xenophobia. Hate crimes based on gender, sexual orientation, gender identity, or disability do not result in extra sentences.

Thus:

	If a thug, seeking money or valuables, beats up a victim at random, the assault would not be considered a hate crime.
	If a person assaults a friend or acquaintance out of anger, the assault would not be a hate crime.
	If a thug beats up a victim who is a stranger and was selected because of their race, it would be a hate crime.
	If a person delivers a hate speech or composes a hate essay denigrating all Jews, or African-Americans, or gays, then this would not be considered a hate crime anywhere in the United States, because no criminal act has occurred. Hate speech itself is protected under the First Amendment. It might be considered a hate crime elsewhere in the world, Some countries like Canada have hate propaganda laws that target hate speech in addition to the hate crime laws that target hate-motivated violence. These two types of laws are frequently confused -- sometimes intentionally.

Under the Hate Crime Statistics Act of 1990, the FBI has been reporting hate crimes based on perceived race, religion, ethnicity, and sexual orientation. Since 1994, their reports have included disability.

Official definitions of hate crimes:

Typical hate crime laws criminalize the use of force, or the threat of force, against a person because they are a member of a specific, protected group. ₄ Four definitions of the term "hate crime" are: 

	Hate Crimes Statistics Act (1990): "... crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity, including where appropriate the crimes of murder, non-negligent manslaughter, forcible rape, aggravated assault, simple assault, intimidation, arson, and destruction, damage or vandalism of property." (Public Law 101-275).
	Bureau of Justice Administration (BJA; 1997): "Hate crimes--or bias-motivated crimes--are defined as offenses motivated by hatred against a victim based on his or her race, religion, sexual orientation, ethnicity, or national origin."
	Anti-Defamation League (ADL): A hate crime is "any crime committed because of the victim's actual or perceived race, color, religion, ancestry, national origin, disability, gender [male or female] or sexual orientation." 5
	National Education Association (NEA): "Hate crimes and violent acts are defined as offenses motivated by hatred against a victim based on his or her beliefs or mental or physical characteristics, including race, ethnicity, and sexual orientation."  6

It is again worth noting that crimes motivated by the hatred of a victim's sexual orientation is already defined as a hate crime by the above organizations.

The word "perceived" is important, because many vicious assaults are based on the incorrect belief that the victim is Jewish, gay, or a member of some other group that the perpetrator hates.

Traditional hate crime legislation protects persons because of "his race, color, religion or national origin," as in the case of the 1969 federal hate crimes law. (18 U.S.C. Section 245). About 45 states have hate crime statutes. Some state laws now include additional protected groups. Some laws are restrictive and only protect a member of a group if she/he is involved in specific activities. For example, the 1969 federal law only applies if the crime happens when a person is attending a public school or is a juror, or is at a federal or state-sponsored event, or is participating in a few other "federally protected activities." 

Existing state and federal hate crime laws:

	The 1969 federal hate crime law: Covered race, color, religion, ethnicity, and national origin only. Did not include sexual orientation, gender identity, gender or disability status. Only applied if the victim of a crime is engaged in during one of six federally protected activities, like voting or an involvement with inter-state commerce.
	The ADL reported (as of 2001-SEP-21) that: Seven states were without hate crime laws (Arkansas, Hawaii, Indiana, Kansas, New Mexico,  South Carolina, and Wyoming) 7 Twenty states had laws that do not include sexual orientation as a protected group (AL, AR, CO, GA, ID, MD, MI, MS, MO, MT, NC, ND, oh, ok, pa,  SD, TX, UT, VA, WV) 8 Twenty-four states and the District of Columbia had laws that do protect people on the basis of their sexual orientation. (AZ, CA, CT, DC, DE, FL, IL, IA, KY, LA, ME, MA, MN, ne, nv, nh, nj, NY, OR, RI, TN, VT, WA, WI) 8
	On 2000-JUL-4, Kentucky placed a hate crime law on their books which protects persons of all sexual orientations.
	The ADL regularly updates a chart of "State hate crime statutory provisions." As of 2008-AUG, they show: Only five states with minimal or no hate crime law: (AR, GA, IN, SC, WY). 31 states with laws criminalizing violence based on victims' sexual orientation: (AZ, CA, CO, CT, DC, DE, FL, HI, IL, IA, KS, KY, LA, ME, MD, MA, MN, MO, NE, NV, NH, NJ, NM, NY, OR, RI, TN, TX, VT, WA, WI. 22 states with laws protecting religious worship: (AR, CA, DC, FL, ID, MD, MA, MI, MN, MS, MO, NV, NM, NY, NC, OK, RI, SC, SD, TN, VA, WV. 13 states with laws criminalizing violence based on victims' age ( CA, DC, FL, IA, HI, KS, LA, ME, MN, NE, NM, NY, VT). 12 states with laws criminalizing violence based on victims' gender identity (CA, CO, CT, DC, HI, MD, MN, MO, NJ, NM, OR, VT). 5 states with hate laws criminalizing violence based on political affiliation (CA, DC, IA, LA, WV).
	The proposed 2009 federal hate crime law: Covers race, color, religion, ethnicity, national origin, sexual orientation, gender identity, gender and disability. Applies across a wide range of hate crimes of violence. Does not include hate speech which is legal in the U.S. and protected by the First Amendment to the U.S. Constitution.

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. "Forward," FBI hate-crime report for 2002, at: http://www.fbi.gov/
2. "Hate Crime definition," FBI, at: http://www.fbi.gov/
3. "Questions and Answers: What's wrong with thought crimes ('hate crimes') laws, Family Research Council, 2007-APR, at:  http://downloads.frc.org/ This is a PDF file.
4. "Senate to consider hate-crimes measure," Baptist Press, at: http://www.mcjonline.com/
5. Cited in: "Hate Crimes Laws: Making thoughts a crime," Concerned Women for America," at: http://cwfa.org/ 
6. "Hate motivated crime and violence: Information for schools, communities, & families," National Education Association at: http://www.nea.org/
7. "1999 Hate crimes laws: Map of state statutes," Anti-Defamation League, at: http://www.adl.org/
8. "1999 Hate crimes laws: State hate crimes statutory provisions," Anti-Defamation League, at: http://www.adl.org/
9. "Anti-Defamation League state hate crime statutory provisions," 2008-AUG, at: http://www.civilrights.org/

Copyright © 1999 to 2009 by Ontario Consultants on Religious Tolerance
Latest update: 2009-JUL-22
Author: B.A. Robinson

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