Currently 22 states and the District of Columbia (D.C.) punish hate crimes motivated by sexual orientation and four states plus D.C. include punishment for crimes based on gender identity. A total of 43 states plus D.C. have provisions in their criminal codes that deal with some form of bias - motivated or hate crime. The common denominator for all of these laws is bias - motivated criminal conduct that carries some form of additional or heightened penalty. Put another way, there are three key elements to all hate crimes laws: (1) bias motivation, (2) criminal conduct and (3) penalty enhancement.

Based on these three elements, the scope of hate crimes laws varies from state to state, providing a wide range of ways in which a penalty enhancement is structured and applied. Some states, such as Tennessee (and the federal hate crimes law) tie bias - motivation to some interference with a state - or federally granted right in order to prosecute someone for a hate crime. This means, for example, that a person who assaults an Hispanic person to prevent that person from voting - which is a federal right - could be subject to prosecution under Tennessee's hate crimes statute.

While most states require motivation against certain people based on very specific characteristics, a few states, including Texas and Georgia, require only that a person be motivated by prejudice. Some states provide that a wide range of specified crimes or that all crimes defined by the state may be prosecuted as a hate crime if bias is evident. Other states, such as New York, limit prosecution of a hate crime to only a few or even one specific underlying crime. Almost all penalty provisions have the same effect: to punish to a greater degree crime that is motivated by bias. The differences are in how the specific statutes arrive at that effect.

A basic understanding of each of the key elements of hate crimes laws and how they work may assist with the strategy you develop to advocate particular types of hate crimes laws.

Bias Motivation

Motivation based on bias or prejudice is, of course, at the core of all hate crimes. Typically, a state hate crimes provision will list different characteristics that are protected by the hate crimes law (although at least two states do not). While the primary objective is to ensure that sexual orientation and gender identity are included in the characteristics that are protected, an important aspect to consider is how the connection between the bias motivation and protected characteristic is worded. A typical way to accomplish this connection is to focus on a crime victim's actual status by using a phrase similar to "because of the victim's (actual) race, color, religion, sexual orientation, etc." As you can imagine, this phrasing may prove limiting. Adding the words "actual or perceived" before the list of characteristics is helpful to ensure that prosecuting bias - motivated violence is not dependent on the perpetrator's mistake about who he thought he was attacking. Phrases such as "motivated by" or "prejudice based on" may achieve similar effects.

Many, though not all, states that punish hate crimes based on sexual orientation define sexual orientation in either the actual criminal provision or refer to other places in the state code where sexual orientation may be defined. The definition of sexual orientation tends to be standard in referring to a person's homosexuality, bisexuality or heterosexuality "by inclination or practice." While it's not necessary to have such a definition, as noted below, including a definition for sexual orientation may be helpful to gender identity inclusion.

Five jurisdictions currently punish a crime motivated by a victim's gender identity. Both Minnesota and Missouri accomplish this through an expansive definition of sexual orientation, which includes "identity not traditionally associated with one's gender" or "not traditionally associated with one's biological maleness or femaleness." California includes gender identity by defining gender - for the purposes of its criminal code only - as including the "defendant's perception of the victim's identity … whether or not … traditionally associated with the victim's sex at birth." Either of these approaches represent a best case scenario for gender identity inclusion because the definitions are relatively clear. In addition, the federal approach, which is to use the phrase "actual or perceived gender," should be interpreted by the courts to be gender identity inclusive (though no court to date has ruled so). D.C. includes punishment for hate crimes against transgender people through the wholly separate protected characteristic of "personal appearance," which in part is defined as "the outward appearance of any person, irrespective of sex."

Criminal Conduct

Bias motivation must be coupled with conduct to make it a criminal offense. Many states rely on an underlying offense when connecting the criminal conduct element of a hate crimes law to the bias motivation element. The underlying offense is conduct that is specifically defined and prohibited by the existing criminal code, usually under separate code sections. With this method, a state hate crimes law may provide a very broad range of conduct or it may limit severely conduct that could - when coupled with bias motivation - constitute a hate crime.

Delaware, for example, punishes as a hate crime "any crime as defined by the laws of this State," when the victim was selected because of the victim's race, religion, color, disability, sexual orientation, national origin or ancestry. Illinois, on the other hand, specifies "assault, battery, aggravated assault, misdemeanor theft, criminal trespass to residence, misdemeanor criminal damage to property, criminal trespass to vehicle, criminal trespass to real property, mob action or disorderly conduct" as defined by enumerated code sections as the only conduct that is to be considered a hate crime. Wisconsin does not even name the crimes that come under its hate crimes provision except by referring to a person committing "a crime under chs. 939 to 948" and New York's hate crimes provision is very limited in that it applies only to conduct prohibited by its "aggravated harassment" provisions.

A second way that hate crimes laws tie conduct to bias is by creating a wholly independent, separate offense. In this type of hate crimes provision, generally there is no specific reference to the state's existing criminal prohibitions when describing the conduct prohibited by the hate crimes law. For example, the Connecticut "Intimidation based on bigotry or bias" provision ties bias motivation to physical contact, damage to property of the victim or threats to do either, but does not reference the parts of its code that makes such conduct criminal outside the context of bias motivation. These separate offense provisions generally tend to be broad enough to cover most conduct that could be subject to hate crimes.

Neither of these methods of connecting conduct to bias motivation is particularly better than the other, though, as noted, the latter method as a rule tends to apply to a broader range of conduct. However, the important consideration to remember with both is that the language used could limit significantly the kinds of conduct that fall under a state's hate crimes laws.

Finally, with regard to criminal conduct, a handful of states require, in addition to bias motivation and criminal conduct, that a defendant have the intention of interfering with the victim's rights as granted by state or federal laws. For example, West Virginia's hate crimes provision (which does not include sexual orientation) requires a person to "injure, intimidate or interfere" with another's exercise of "any right or privilege secured" by federal or state laws. Such a requirement further limits application of a hate crimes laws unless, as is the case in West Virginia and some other states, the legislature declares a statutory right to be free from violence or the threat of violence "committed against their persons because of their race, color, religion, ancestry, national origin, political affiliation or sex."

Penalty Enhancement

Virtually every hate crimes law ends up in the same place: Providing additional, enhanced or heightened penalties for a crime motivated by bias. How the states get to this place, as with the two other key hate crimes law elements, varies greatly.

States that use an existing underlying offense as the conduct element of their hate crimes provision commonly base the punishment on the punishment for that underlying offense. If a hate crime involved a criminal assault as defined by a state criminal code, then the defendant would be subject to an enhanced punishment based on the punishment for criminal assault. Some states will apply the next highest category of penalty for a hate crime using the underlying offense as the starting point or will consider the hate crime as the next highest degree of felony or misdemeanor as the underlying offense. For example, in Nebraska a hate crime "shall be punished by the imposition of the next higher penalty classification than the penalty classification prescribed for the criminal offense." Other states will punish a hate crime by using some sort of formula to add years to the penalty for the underlying offense. In D.C., the penalty for violation of "Bias - related crime" is not more than 1.5 times the maximum sentence for the underlying offense.

States that create a separate offense for a hate crime understandably do not base penalties on an underlying offense since there is no specific underlying offense that is part of the hate crimes provision. The separate offenses are classified and punished in the same manner as other criminal offenses under the state code.

One critical factor to investigate, particularly when considering the penalty enhancement element but also with all parts of the hate crimes law, is the discretion built into the hate crimes provision. Phrases similar to "shall be punished" are important to ensure that the penalty for the hate crime actually will be applied to someone who commits the crime. In contrast, New Hampshire, for example, provides that a person who commits a bias crime "may be sentenced" to an extended term of imprisonment. In a variation on adding years to the underlying offense, Louisiana provides for punishment for those convicted of hate crimes of an additional sentence to run consecutive, that is after, to the sentence for the underlying offense. But this additional sentence is discretionary and not mandatory.

Other Elements for a Hate Crimes Law

A few other elements that are common to many hate crimes laws are described below. These other elements are not critical to the enforcement of hate crimes laws though they may provide other ways to provide for hate crimes protection. These provisions also may be useful as starting points or even as compromise alternatives if it is politically impossible to enact standard hate crimes legislation.

Sentencing Factors. Many states have a general sentencing statute that provides for an increased penalty where a judge or jury finds that an aggravating factor was present during the commission of the crime. The sentencing statute usually specifies what these aggravating factors are and in many states an aggravating factor is bias - motivated conduct. Arizona provides that evidence that a crime was committed "out of malice" toward a victim because of the victim's identity in listed groups is an "aggravating circumstance" that may increase the penalty for the underlying offense. Sentencing factors are almost always discretionary.

At the federal level and in some states, governmental sentencing commissions may be the entities that research and propose sentences or decide what constitutes an aggravating circumstance. Investigating what administrative entities are responsible for such decisions may be useful in determining whether administrative rather than legislative advocacy is a better approach to punishing bias - motivated criminal conduct.

Civil Action for Damages. In addition to criminal penalties for bias - motivated conduct, about 24 states allow some form of civil punishment for bias - motivated conduct. These statutes, which appear both in the criminal codes and civil codes of various states, generally allow a victim of bias - motivated conduct to sue the perpetrator for monetary damages and may also allow the victim or the state to seek an injunction or restraining order against the perpetrator. Many of these provisions allow for the prevailing plaintiff to recover reasonable attorney's fees and costs for filing such a lawsuit. Success in a civil action normally is not dependent on the defendant being convicted of a bias - motivated crime. (Although Arkansas law does not have criminal provisions for hate crimes, it does provide for a civil action for bias - motivated conduct.)

Data Collection and Police Training. Whether or not a state criminalizes bias - motivated conduct, it is important for the state to track and monitor such crimes and to provide training for police to be sensitive to and investigate such crimes. About 16 states have statutes that specifically require the state to collect data and statistics on hate crimes based on sexual orientation. (A smaller number of state statutes require police training programs.) This number includes Maryland and Michigan which have hate crimes laws that do not include sexual orientation but have data collection statutes that do. In addition, illustrating another example of how administrative advocacy may be successful, Utah's state police collects statistics on hate crimes based on sexual orientation although the state hate crimes statistics statute does not require them to do so.

A data collection statute should require local law enforcement agencies to provide periodic reports on hate crimes to a state agency. The state is required to collect and analyze the data and often to provide reports to the legislature or the governor. Few statutes specifically make hate crimes statistics available to the public though such a provision could be helpful. The California statute requires the publication of a hate crimes brochure geared toward the public and hate crimes victims.

Institutional Vandalism. To reach the problem of churches, schools and community centers being targeted for damage, some states have enacted institutional vandalism hate crimes provisions that focus on property damage directed against an institution because of its association with a protected group. Institutional vandalism statutes address, for example, the problem of church arsons in African - American churches but can be helpful in other contexts. Wisconsin's institutional vandalism provision, for example, specifically includes vandalism directed against churches, schools and other institutions associated with a person's sexual orientation as punishable.

Conclusion

Although this document attempts to set out the important elements of a hate crimes laws, the methods described under each key element are not mutually exclusive. A state may have one, none or any combination of the methods described in the key elements. Add any or all of the other elements of hate crimes laws, including sentencing factors, civil actions, and data collection and police training, and the combinations and variations can be endless. California, for example, has more than a dozen separate statutory provisions that relate to bias - motivated conduct and has some form of each of the elements described.

Perhaps the strongest form of hate crimes law are the ones in which a separate offense is created. The penalties for these separate offenses, despite the example in Louisiana, are almost always mandatory. Connecting bias motivation to existing criminal provisions is also an effective hate crimes law as long as the penalty enhancement is a mandatory provision. Advocating for a sentencing factor, civil action legislation or even data collection legislation could be the first step in developing and sustaining a successful campaign to achieving broader hate crimes legislation. (National Gay and Lesbian Task Force Web site)