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Hate Crimes

31 December 2003 Published in State Policy Work

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 of classifications.

Proposed Legislation

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 and Association

The 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.