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Hate Crimes Laws
Generally, hate crime statutes enhance the grade and/or penalty for criminal
conduct directed at a person who shares a group characteristic. A hate
crime is one that hurts not only the victim but also damages society.
Increased penalties purport to send a message that we are all free to
participate in society without being subject to attack or intimidation
because we are identified with a group. Of 47 states with hate crimes
statutes, 45 include a list of protected classes.
Existing Utah Law
Although Utah adopted a law twelve years ago that allows enhanced penalties
for crimes committed when hate is a motive, prosecutors consider it unenforceable
because it is vague and does not include the commonly listed protected
classes. Unlike other statutes around the country, Utah’s law focuses
on the intent of the perpetrator rather than the status of the victim.
It targets any action that intends to “intimidate or terrorize”
another person to keep him from exercising his constitutional rights.
In a court challenge, the Utah Court of Appeals said the law lacked clear
legislative intent and noted it was not a true hate crimes law but should
be titled the "Exercise of Rights" statute because of its lack
More specifically drawn hate crimes bills in Utah have been defeated for
eight years now. The Utah legislature resists including “sexual
orientation” to define a group of people along with race, color,
disability, religion, national origin, ancestry, age, or gender. This
year, in addition to HB 68 sponsored by David Litvack, which resembled
hate crimes laws in other states, James Evans sponsored a bill modeled
on Georgia law which omitted the protected classes. Evans felt that delineating
classes was itself discriminatory. His proposal allowed a hate crime charge
to be added if a defendant was acting with “bias or prejudice.”
Most agreed that this language would be unconstitutionally vague. It would
also impermissibly criminalize thought and belief.
Restricting Thought, Opinion, Belief, Expression
ACLU has a long history of supporting civil rights legislation and the
ACLU of Utah joins with the supporters of hate crimes legislation in condemning
crimes where the victim is selected because of that person’s race,
color, national origin, religion, gender, sexual orientation, or disability.
However, in crafting a legislative response, lawmakers must take care
to include sufficient checks against prosecutorial overreaching. Any proposed
legislation should specifically provide that the requisite discriminatory
intent can not be established merely upon evidence of speech or organizational
membership that is unrelated to the crime.
In our diverse society where there is a strong tradition of free speech
and free association, the need for such a safeguard is critical. Violent
crimes sometimes occur where the suspect and victim differ in sex, race,
ethnicity, or another characteristic. Some of those crimes are bias crimes,
but others are not. For example, a membership card found in a wallet,
a magazine found in car, or a photo of a suspect at a protest years ago
should stay out of the courtroom unless it has a role in the chain of
events that led to the violent act.
To limit a potentially chilling effect on constitutionally protected speech,
any hate crimes legislation should provide the following:
In any prosecution under this section, (i) evidence proving the defendant’s
mere abstract beliefs or (ii) evidence of the defendant’s mere membership
in an organization, shall not be admissible to establish any element of
an offense under this section.
This provision will bar only evidence that has no direct relationship
to the underlying violent offense.
Acts of violence are not protected under rights of speech; however, we
can not punish someone for his or her beliefs. Hate crimes legislation
must not be used as a pretext to investigate or punish constitutionally
protected thoughts, opinions, beliefs, expressions, or associations.