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What Makes a Crime a Hate Crime?

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Crimes are classified in a few different ways. There are the types of crimes you often see in news headlines, like theft, robbery, assault, and murder. Then there are hate crimes, which are appended to other charges and carry greater penalties.

But what qualifies a crime specifically as a hate crime?

Hate crime cases hinge on motivation: Was the crime motivated by a bias against the victim’s race, religion, sexual orientation, or other protected aspects of their identity? Hate crime laws are usually designed to go hand-in-hand with the actual offense the person is charged with, such as assault or murder, putting greater severity on the crime due to its hateful motivations. For example, it’s not illegal to randomly spew racial epithets—but if you go so far as to punch someone because of your racial bias, the crime becomes much more serious in the eyes of the law.

Furthermore, because hate crimes are dependent on the perpetrator’s intentions, the victim doesn’t actually have to be a member of the protected class the perp thought he or she was attacking to be covered under hate crime laws. If someone attacks you because they think you’re Jewish, but you’re actually an agnostic Catholic, it’s still a hate crime. In other words: Being wrong about who to target is not a legal excuse for bigotry.

If the activities labeled hate crimes, like robbery and assault, are already crimes, why do we need more laws saying those crimes are wrong?

Hate crimes are motivated more by how a person is perceived than any of that person’s words or actions, making such crimes particularly terrifying for both the victim and the community at large. According to the Offices of the United States Attorneys:

"The fact that the victims of such crimes are selected based on characteristics such as their race or religion can cause all those in the community who share that characteristic to experience similar feelings of vulnerability and secondary victimization. In its impact on the community, the fear of becoming a victim of violence can be nearly as debilitating as suffering through an actual crime.

The message of intolerance that is communicated through a hate crime can have broadly disruptive social effects as well, and can lead to greater distrust of law enforcement or friction between racial or religious communities.”

State hate crime laws cover different classes of people in addition to those protected by federal legislation like the Civil Rights Act of 1968. Only five states do not have hate crime laws on the books. Many cover crimes perpetrated with bias concerning disabilities, sexual orientation, and gender. Some protect against biases regarding transgender individuals and gender identity, age, and even political affiliation.

Being able to classify something as a federal hate crime helps agencies like the FBI step in where state and local authorities either cannot or will not prosecute, as well as provide grants to assist local police in pursuing the case. For instance, the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009 expanded federal hate crime statutes to include crimes motivated by a victim’s gender, sexual orientation, and disability status as well as expanding the FBI’s ability to investigate hate crimes.

Matthew Shepard, a gay college student, was beaten, tortured, and left to die in 1998, but because sexual orientation wasn’t yet a federally protected class, the Department of Justice was unable to help the Laramie, Wyoming, police work the case, and pursuing justice ended up being so costly that the police department had to furlough five of its officers to stay afloat.

James Byrd Jr. was an African-American man living in Texas who was dragged to death behind a pickup truck in 1998. Although Texas did have hate crime laws on the books, they were deemed too vague to be enforceable.

However, hate crime laws are controversial in some circles. Some free speech advocates worry that hate crime laws could be wielded to punish freedom of speech, but these laws generally only cover criminal action, not hate speech. In 2004, the Georgia Supreme Court struck down the state’s hate crimes law, arguing that its language was too broad because it didn’t specify the groups that were protected under the statute. It covered all victims chosen because of general “bias or prejudice.” In May 2017, Texas broadened its hate crime laws to include police officers as a protected group, following a 2016 ambush on police that left six Dallas officers dead—though the state is also covered by all federal hate crime statutes.

The federal government’s hate crimes laws have been ruled legally sound. The legality of increasing punishment based on a person’s beliefs was affirmed in a 1993 U.S. Supreme Court case called Wisconsin v. Mitchell. Lawyers for a young black man who incited an attack on a young white man because of his race argued that the five extra years tacked on to his sentence for committing a hate crime violated his First and 14th Amendment rights, but the Supreme Court disagreed, upholding the greater penalties awarded in hate crimes.

But if hate crime statutes are in part due to how the offenses disrupt the greater community, is a terrorist attack a hate crime?

A terrorist attack isn’t always a hate crime, but it can be. The FBI defines terrorism as a violent act that’s designed to intimidate the civilian population or influence government policy, including through mass destruction, assassination, or kidnapping. For example, in the summer of 2016, the FBI classified the deadly mass shooting at Orlando's Pulse nightclub as both an act of terrorism and a hate crime, saying that the shooter was motivated by anti-gay bias and because he had asserted that his actions were revenge for American airstrikes in the Middle East.

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