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. Crimes based on invidious discrimination--including the selection of a person for violent harm because of his or her race, color, religion, national origin, gender, sexual orientation, or disability--cannot claim the protection of the Constitution. The increase in such criminal civil rights violations warrants a legislative response.
In crafting such a response, the Legislature must take care to include sufficient checks against prosecutorial overreaching. Specifically, any proposed legislation should specifically provide that the requisite discriminatory intent cannot be established merely upon evidence of speech or organizational membership that is unrelated to the crime.
In our diverse society with 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. A membership card found in a wallet, a magazine found in a glove compartment, or a photo of a suspect at a rally or protest years ago should stay out of the courtroom unless the organization, magazine, or rally had a role in the chain of events that led to the violent act. If the government has a strong case, it should not need such evidence.
To limit its potential chilling effect on constitutionally protected speech, any hate crimes legislation should provide that:
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 will reduce or eliminate the possibility that the government could obtain a criminal conviction on the basis of evidence of speech that had no role in the chain of events that led to any alleged violent act proscribed by the statute. Moreover, by excluding evidence of “mere abstract beliefs” and “mere membership in an organization,” the provision will bar only evidence that had no direct relationship to the underlying violent offense. It will have no effect on the admissibility of evidence of membership or belief that bears such a direct relationship to the underlying crime. Thus, the proposal will not bar all evidence of membership or belief.