The Evolution Of Hate Crime Laws: A Historical Overview

Hate crimes were first recognised as a specific category of criminal conduct in the United States of America. The first federal hate crimes statute was passed by Congress and signed into law by President Lyndon Johnson in 1968. This statute made it a crime to use or threaten to use force to willfully interfere with any person because of their race, colour, religion, or national origin. Since then, several other federal hate crime laws have been passed in the US, including the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act in 2009.

The first federal hate crime laws in the US

The first federal hate crime law in the US was passed in 1968 and was called the Civil Rights Act. This law made it a crime to use force or threaten to use force to willfully interfere with any person because of their race, colour, religion, or national origin. The law also applied to those participating in federally protected activities, such as public education, employment, jury service, travel, or the enjoyment of public accommodations.

In 1968, Congress also made it a crime to use force or threaten to use force to interfere with housing rights because of the victim's race, colour, religion, sex, or national origin. In 1988, protections based on familial status and disability were added.

In 1990, the Hate Crime Statistics Act was passed, which required the Attorney General to collect data on crimes committed because of the victim's race, religion, disability, sexual orientation, or ethnicity. This was the first federal statute to "recognise and name gay, lesbian and bisexual people".

In 1994, the Violent Crime Control and Law Enforcement Act expanded the scope of required FBI data to include hate crimes based on disability.

In 1996, the Church Arson Prevention Act was passed, making it a crime to deface, damage, or destroy religious property, or interfere with a person's religious practice, in situations affecting interstate commerce. The Act also made it a crime to deface, damage, or destroy religious property because of the race, colour, or ethnicity of the people associated with the property.

In 2009, the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act was passed, which expanded the federal definition of hate crimes, enhanced the legal toolkit available to prosecutors, and increased the ability of federal law enforcement to support state and local partners. This law also added new federal protections against crimes based on gender, disability, gender identity, or sexual orientation.

The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act

The Act expands on the 1969 United States federal hate-crime law to include crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity, or disability. It removes jurisdictional obstacles that previously hindered the prosecution of certain race- and religion-motivated violence. It also provides federal authorities with greater ability to investigate hate crimes that local authorities choose not to pursue.

The Act authorises $5 million per year in funding for fiscal years 2010 through 2012 to assist state and local agencies in investigating and prosecuting hate crimes. It also requires the Federal Bureau of Investigation (FBI) to track statistics on hate crimes based on gender and gender identity, in addition to the previously tracked categories.

The Act has been successfully used to prosecute hate crimes, including incidents involving anti-Hispanic violence, anti-Navajo violence, and anti-LGBTQ+ violence. It represents a significant step forward in recognising and addressing the unique challenges faced by marginalised communities in the United States.

State hate crime laws

Hate crimes were first recognised as a specific category of criminal conduct in the United States of America. Between the early 1980s and 1990s, a number of state-level and federal hate-crime laws were enacted. However, there is no consensus on the date when criminal conduct motivated by specific prejudices or biases was first recognised in American history.

Alabama

Protected characteristics include race, colour, religion, national origin, ethnicity, and disability.

Alabama's hate crime laws provide for mandatory minimum sentences for felonies and misdemeanours that were motivated beyond a reasonable doubt by a protected characteristic of the victim. The mandatory minimum sentence for a Class D felony in this situation is 18 months, while it is two years for a Class C felony, 10 years for a Class B felony, and 15 years for a Class A felony. A defendant convicted of a misdemeanor hate crime will be sentenced for a Class A misdemeanour, and there is a mandatory minimum sentence of three months.

Alabama also has more specific laws involving cross burning and desecration of a place of worship. Cross burning is a Class C felony, while desecration is a Class A misdemeanour.

Alaska

Protected characteristics include race, sex, colour, creed, disability, ancestry, national origin, and age (65 or older).

Alaska's hate crime laws allow a sentencing enhancement for a felony if the defendant knowingly directed the criminal conduct at a victim because of their protected characteristic. The sentencing court must consider this factor and may impose a sentence above the presumptive range. However, a sentence outside the presumptive range must be based on the totality of the aggravating and mitigating factors.

Alaska also has a separate law that describes a crime known as interference with constitutional rights. This involves injuring, oppressing, threatening, or intimidating another person with the intent to deprive them of a right or privilege under Alaska law. It is a Class A misdemeanour, which can result in up to one year of imprisonment and a fine of up to $25,000.

Arizona

Protected characteristics include race, colour, religion (antisemitism is specifically listed), national origin, sexual orientation, gender, and disability.

Arizona's hate crime laws provide that evidence that a defendant committed a felony out of malice toward a victim because of their protected characteristic is an aggravating circumstance that the jury will determine and the court will consider in sentencing the defendant. This may result in the imposition of a maximum term of imprisonment rather than a presumptive term under felony sentencing statutes.

Arizona also has more specific laws involving cross burning, symbol burning, and defacing or damaging religious buildings. Cross burning and symbol burning are class 1 misdemeanours, while defacing or damaging a religious building is a felony.

Arkansas

Protected characteristics under a vague law include mental, physical, biological, cultural, political, and religious beliefs or characteristics.

Arkansas's hate crime laws provide that a person who commits a serious felony involving violence is subject to delayed release if the state proves beyond a reasonable doubt that the person committed the offense under an aggravating circumstance. This means that the defendant purposely selected the victim because they were a member of or associated with a recognisable and identifiable group or class, sharing mental, physical, biological, cultural, political, or religious beliefs or characteristics.

Delayed release prevents a prisoner from being eligible for parole unless they have served at least 80% of their sentence. Felonies to which the statute applies include first-degree and second-degree murder, first-degree battery, aggravated assault, felony terroristic threatening, terroristic act, arson, and unlawful discharge of a firearm from a vehicle.

Arkansas also has more specific laws involving arson of a place of worship, desecrating or damaging a religious symbol, and defacing or damaging a place of worship. Arson of a place of worship is generally a felony, desecrating or damaging a religious symbol is a Class C misdemeanour, and defacing or damaging a place of worship may be charged as a misdemeanour or felony, depending on the scope of the damage.

California

Protected characteristics include disability, gender (including gender identity and gender expression), nationality (including immigration status), race or ethnicity (including ancestry), religion, and sexual orientation.

California's hate crime laws provide that a hate crime is a criminal act committed (at least in part) because of one or more protected characteristics of the victim, or their association with someone with one of these protected characteristics. It includes violations of Section 422.6, which prohibits willfully injuring, intimidating, interfering with, oppressing, or threatening someone else in the free exercise or enjoyment of a legal right or privilege because of a protected characteristic of the victim.

A violation of Section 422.6 may result in imprisonment for up to one year, as well as a fine of up to $5,000. The defendant also must perform community service.

California's hate crime laws also provide for sentencing enhancements for certain situations in which a defendant committed a misdemeanour that also meets the definition of a hate crime. If the requirements are met, the defendant may be punished by up to one year in jail, or potentially up to three years if the crime is treated as a felony. They may also be subject to a fine of up to $10,000.

Additionally, California's laws provide that a person who commits a felony that is a hate crime may receive an additional term of 1-3 years in prison at the discretion of the court. Certain additional situations in which the fact that a person committed a felony or attempted to commit a felony that is a hate crime will be considered an aggravating circumstance in sentencing.

California also has more specific laws involving terrorizing with symbols (such as a noose, swastika, or burning cross), preventing someone from exercising their religion, and using explosives or arson near a place of worship. Terrorizing with symbols may be charged as either a misdemeanour or felony, while preventing someone from exercising their religion or using explosives or arson near a place of worship is a felony.

Colorado

Protected characteristics include race, colour, religion, ancestry, national origin, disability, and sexual orientation.

Colorado's hate crime laws provide that a person commits a bias-motivated crime if they engage in specified conduct with the intent to intimidate or harass another person at least partly because of their protected characteristic. If the defendant knowingly causes bodily injury to another person with the intent above, this is considered a class 5 felony, which may result in 1-3 years of imprisonment and a fine between $1,000 and $100,000.

Lesser forms of hate crimes involve having the intent above while knowingly causing damage or destruction to someone else’s property, or using words or conduct to knowingly place another person in fear of imminent lawless action directed at their property or them, when the words or conduct are likely to produce property damage or bodily injury. These offenses are class 1 misdemeanours, which may result in up to 364 days of imprisonment and a fine of up to $1,000.

Colorado also has a separate law that makes it a class 1 misdemeanour to commit certain harassment crimes with the intent to intimidate or harass another person at least partly because of their protected characteristic.

Colorado also has a more specific law involving desecrating a place of worship. This is a class 2 misdemeanour.

Connecticut

Protected characteristics include race, religion, ethnicity, disability, sex, sexual orientation, and gender identity or expression.

Connecticut has defined three main levels of hate crimes. The first degree of intimidation based on bigotry or bias involves maliciously causing physical injury to another person with specific intent to intimidate or harass another person that is motivated (at least substantially) by their protected characteristic. This is a class C felony, which may result in 1-10 years of imprisonment and a fine of up to $10,000.

The second degree of intimidation based on bigotry or bias involves maliciously engaging in certain conduct with specific intent to intimidate or harass another person that is motivated (at least substantially) by their protected characteristic. The underlying conduct may involve causing physical contact with the other person, damaging, destroying, or defacing their property, or threatening to do one of these things if there is reasonable cause to believe that such an act will occur. This is a class D felony, which may result in imprisonment for up to five years and a fine of up to $5,000.

The third degree of intimidation based on bigotry or bias involves engaging in certain conduct with specific intent to intimidate or harass another person that is motivated (at least substantially) by their protected characteristic. The underlying conduct may involve damaging, destroying, or defacing any property, or threatening to do this or urging someone else to do this if there is reasonable cause to believe that this will occur. This is a class E felony, which may result in imprisonment for up to three years and a fine of up to $3,500.

Connecticut also has another law, which describes an offense called deprivation of rights. This involves subjecting another person to the deprivation of rights or privileges under federal or Connecticut law based on their religion, national origin, alienage (lack of citizenship), colour, race, sex, gender identity or expression, sexual orientation, blindness, disability, veteran status, or domestic violence victim status. A violation is generally a class A misdemeanour that may result in a fine of up to $1,000, although it is a class D felony that may result in at least a $1,000 fine if the violation caused property damage greater than $1,000.

Connecticut's hate crime laws also provide enhanced penalties for a persistent offender of crimes involving bigotry or bias.

Delaware

Protected characteristics include race (including hairstyle), religion, colour, disability, sexual orientation, sex, age, gender identity, national origin, and ancestry.

Delaware's hate crime laws provide that someone commits a hate crime if they commit an underlying crime while they are motivated (at least in part) by a belief or perception about the protected characteristic of someone else. If the underlying offense is a violation or unclassified misdemeanour, the hate crime is a class A misdemeanour. If the underlying offense is a class A, B, or C misdemeanour, the hate crime is a class G felony. If the underlying offense is a class C through G felony, the hate crime is one grade higher than the underlying offense. If the underlying offense is a class A or B felony, the hate crime is the same grade as the underlying offense, but the minimum sentence of imprisonment required for the underlying offense is doubled.

Delaware also has more specific laws involving desecrating places of worship and burning crosses or other religious symbols. These are class A misdemeanours.

Florida

Protected characteristics include race, colour, ancestry, ethnicity, religion, sexual orientation, national origin, homeless status, advanced age (older than 65), and disability.

Florida's hate crime laws provide that the penalty for a felony or misdemeanour will be reclassified if the commission of the felony or misdemeanour shows prejudice based on a protected characteristic (other than disability) of the victim. The record must reflect that the defendant perceived, knew, or had reasonable grounds to know or perceive that the victim was in a protected class. A separate rule provides a parallel rule for prejudice based on a disability.

If either of these statutes applies, a second-degree misdemeanour will be reclassified to a first-degree misdemeanour, while a first-degree misdemeanour will be reclassified to a third-degree felony. A third-degree felony will be reclassified to a second-degree felony, a second-degree felony will be reclassified to a first-degree felony, and a first-degree felony will be reclassified to a life felony.

Florida also has more specific laws involving defacing or damaging places of worship, cross burning in a public place or on private property, or otherwise placing an exhibit to intimidate someone. Defacing or damaging a place of worship is a third-degree felony, while cross burning in a public place or placing an exhibit to intimidate is a second-degree misdemeanour, and cross burning on private property is a first-degree misdemeanour. Meanwhile, certain offenses against people on the grounds of religious institutions may lead to enhanced penalties. The statute defining first-degree arson, which is a first-degree felony, explicitly includes churches.

Georgia

Protected characteristics include race, colour, religion, national origin, sex, sexual orientation, gender, and disability.

Georgia's hate crime laws provide that penalties may be enhanced if the jury finds beyond a reasonable doubt that the defendant intentionally selected any victim, group of victims, or property as the object of the offense based on a protected characteristic. The judge imposing the sentence must impose a sentence of imprisonment for at least two years and a fine of up to $5,000 if the underlying offense is a felony. If the underlying offense is a “designated misdemeanour”, the judge must impose a sentence of imprisonment for 6-12 months and a fine of up to $5,000. Designated misdemeanors include simple assault, simple battery, battery, criminal trespass, and misdemeanour theft by taking.

Georgia also has more specific laws involving vandalism at a place of worship and terroristic acts related to a burning cross or another burning symbol. Both of these offenses are felonies.

Hawaii

Protected characteristics include race, religion, disability, ethnicity, national origin, gender identity or expression, and sexual orientation.

Hawaii's hate crime laws provide that a defendant who has been convicted of a felony may be subject to an extended term of imprisonment if it is proven beyond a reasonable doubt that an extended term of imprisonment is necessary for the protection of the public, and the defendant is a hate crime offender. This means that the defendant was convicted of a crime against a person, property rights, or public order, and the defendant intentionally selected a victim or the property that was the object of the crime because of hostility toward the protected characteristic of any person.

Hawaii's hate crime laws describe extended terms of imprisonment. The maximum length of the extended term is an indeterminate 10-year term for a class C felony, an indeterminate 20-year term for a class B felony, an indeterminate life term for a class A felony, and life without the possibility of parole for second-degree murder.

Hawaii also has a more specific law involving desecrating places of worship. This may result in up to one year of imprisonment and a fine of up to $10,000.

Idaho

Protected characteristics include race, colour, religion, ancestry, and national origin.

Idaho's hate crime laws prohibit certain conduct when it is committed maliciously and with the specific intent to intimidate or harass another person because of a protected characteristic. Prohibited conduct includes causing a physical injury to another person or damaging, destroying, or defacing someone else’s property, as well as threatening to do any of those prohibited acts if there is reasonable cause to believe that any of those acts will occur. This offense is punishable by imprisonment for up to five years, as well as a fine of up to $5,000.

Idaho's hate crime laws also include the definition of first-degree arson, which explicitly refers to churches. This offense may result in extremely harsh penalties.

Illinois

Protected characteristics include race, colour, creed, religion, ancestry, gender, sexual orientation (including gender-related identity), disability, citizenship, immigration status, and national origin.

Illinois's hate crime laws provide that a person commits a hate crime when they commit any of certain enumerated crimes due to the protected characteristic of a person, regardless of the existence of any other motivating factor. The enumerated crimes include assault, battery, aggravated assault, intimidation, stalking, cyberstalking, misdemeanour theft, criminal trespass to residence, vehicle, or real property, misdemeanour criminal damage to property, mob action, disorderly conduct, transmission of obscene messages, harassment by telephone, and harassment through electronic communications.

A first offense is generally a Class 4 felony, although it is a Class 3 felony when it is committed in or near certain places, such as religious structures, cemeteries, schools, public parks, and ethnic or religious community centers. A Class 4 felony may result in 1-3 years of imprisonment, as well as a fine between $75 and $25,000. A Class 3 felony may result in 2-5 years of imprisonment and a fine in the same range.

Illinois also has a separate law that provides that aggravating factors in sentencing include committing an offense based on another individual’s race, colour, creed, religion, ancestry, gender, sexual orientation, disability, or national origin. The defendant must have committed the offense against the person or property of the person with the protected characteristic, a person associated with that person, or a relative of that person or a person associated with them.

Illinois also has more specific laws involving cross burning and institutional vandalism, which applies to damaging a place of religious worship, a burial facility, or a school, educational facility, or community center because of the race, colour, creed, religion, ancestry, gender, sexual orientation, disability, or national origin of another person or group. Cross burning is a Class A misdemeanour, while institutional vandalism is a Class 3 or Class 2 felony, depending on the scope of the damage. Illinois also has an offense called place of worship arson, which is a Class 1 felony.

Indiana

Protected characteristics include colour, creed, disability, national origin, race, religion, and sexual orientation, although the law extends much more broadly.

Indiana's hate crime laws list various aggravating circumstances that a court may consider in determining the sentence to impose for a crime. One of these circumstances is that the person committed the offense with bias due to the victim’s real or perceived characteristic, trait, belief, practice, association, or other attribute that the court chooses to consider. These include (but are not limited to) attributes in Section 10-13-3-1, which lists the protected characteristics above.

Indiana also has a more specific law involving damaging a structure used for religious worship. This may be charged as a misdemeanour or a felony, depending on the scope of the damage. The definition of arson, which is a felony, explicitly includes structures used for religious worship.

Iowa

Protected characteristics include race, colour, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, and disability.

Iowa's hate crime laws provide that a hate crime involves committing one of

Hate crime laws internationally

Hate crime laws have been enacted in many countries around the world, with the first hate crime laws being passed in the United States after the American Civil War. The US Civil Rights Act of 1871 was passed to combat the growing number of racially motivated crimes committed by the Reconstruction-era Ku Klux Klan.

In the modern era, the US passed a federal statute in 1968, part of the Civil Rights Act, which made it illegal to "by force or by threat of force, injure, intimidate, or interfere with anyone who is engaged in six specified protected activities, by reason of their race, colour, religion, or national origin."

In 2009, the US passed the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which added actual or perceived gender, gender identity, sexual orientation, and disability to the federal definition of a hate crime.

Other countries with hate crime laws include:

• The United Kingdom, which passed the Crime and Disorder Act in 1998.
• France, which passed its first hate crime law, la loi Lellouche, in 2003.
• Germany, which criminalises Volksverhetzung ("incitement to hatred") under Section 130 of its criminal code.
• Canada, where advocating genocide against an "identifiable group" is an indictable offence under the Criminal Code, carrying a maximum sentence of five years' imprisonment.
• Australia, where all jurisdictions give redress when a person is victimised on the basis of colour, ethnicity, national origin, or race.
• India, which covers hate speech under the Indian Penal Code but does not have specific laws governing hate crimes.
• Brazil, where the 1988 Constitution states that racism is an "offense with no statute of limitations and no right to bail for the defendant."
• Japan, which does not have hate speech laws but became a member of the UN International Convention on the Elimination of All Forms of Racial Discrimination in 1995.
• South Africa, which has no hate crime law but is facing calls to enact legislation following xenophobic violence against black African foreigners.

Hate crime laws and free speech

The line between protected speech and a hate crime can be challenging to establish, and it often depends on the specific facts of each case. The context and intent behind hateful statements are crucial factors in determining whether they cross the line into illegal territory. Vague and distant threats, for instance, might be protected by the First Amendment, while more specific and immediate threats are more likely to be considered illegal.

The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, passed in 2009, is a key piece of legislation that addresses hate crimes. This Act makes it illegal to physically harm someone based on their race, religion, national origin, gender, or sexual orientation, among other characteristics. However, it is important to note that this Act does not criminalize hate speech itself but rather the acts of violence or intimidation motivated by hate.

The issue of hate crime laws and free speech is further complicated by the varying definitions and interpretations of hate speech. While there is no legal definition of "hate speech" under U.S. law, it is generally understood as any form of expression intended to vilify, humiliate, or incite hatred against a group based on race, religion, skin color, sexual identity, gender identity, ethnicity, disability, or national origin. Libraries, for instance, are encouraged to adopt policies that address hateful conduct as a violation, creating inclusive and safe spaces for all users and staff.

In conclusion, while hate speech is generally protected by the First Amendment, there are exceptions where it can cross the line into illegal territory. The distinction between protected speech and a hate crime is often nuanced and dependent on the specific context and intent. The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act is a significant piece of legislation addressing hate crimes, but it is important to differentiate between hate speech and acts of violence or intimidation motivated by hate. Libraries and other institutions play a crucial role in fostering inclusive environments and addressing hateful conduct through policies and messaging.

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