When Does a Crime Become a Hate Crime?

Written by | Updated April 29, 2015

Crimes are typically defined by actions; some crimes, like murder, also require prosecutors to prove intent. Hate crimes add a third defining characteristic, that of motive. While all criminals have motives, it’s not always an essential element of the crime itself. However, to convict a defendant of a hate crime, prosecutors need to prove not only that the defendant committed the act, but also that he did so out of dislike or fear of a particular group or class of people.

What is a Hate Crime? Federal Law

Title 18, U.S. Code, Chapter 13, Section 249, better known as the “Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act,” defines hate crimes as offenses committed “because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability” of the victim.

In this case, the phrase “because of” means that not all crimes committed by a perpetrator of one race against a victim of another race, for example, are hate crimes: bias has to be the motivating factor. As part of the hate crime law, kidnapping and attempted kidnapping, attempted murder, aggravated sexual abuse, and crimes resulting in death are punishable by life in prison.

However, for the federal government to assert jurisdiction over state prosecution, the crime must meet certain requirements. For example, the victim would have to be involved in interstate travel or commerce, or the defendant would have to transport a deadly weapon across state lines in commission of the violent act.

Not All States Agree

The primary difference between hate crime laws on the state level concerns which group statuses are offered protections. All but five states—Arkansas, Georgia, Michigan, South Carolina, and Wyoming—have some form of hate crime law. There are 15 states with laws covering factors like race, religion, gender, and ethnicity, but not sexual orientation or gender identity. Beyond that, 15 more include sexual orientation but not gender identity, and the final 15 include both sexual orientation and gender identity.

How Common are Hate Crimes?

According to FBI data, there were 5,922 single-bias hate crimes reported in 2013. Of these, race was the most common bias, involved in 48.5 percent of attacks. Sexual orientation was the motivating factor in 20.8 percent of attacks, and religion factored in to 17.4 percent, and ethnicity in 11.1 percent. All other factors combined for less than 2.5 percent of hate crimes. If there’s any good news in the data, it’s that the FBI data suggests hate crime rates are falling, but some watchdog groups like the Southern Poverty Law Center say the FBI’s methodology significantly underestimates hate crime frequency.

The Victims Who Inspired a Federal Law

On October 7, 1998, Aaron McKinney and Russell Henderson abducted Matthew Shepard, who was gay, from a bar in Laramie, Wyoming. McKinney and Henderson reportedly robbed Shepard, beat him, and left him for dead: he died of his injuries five days later. Prosecutors convicted both defendants of first-degree murder, and each received two life sentences.

The other namesake for federal hate crime law is James Byrd, Jr. On June 7, 1998, Lawrence Brewer, John King, and Shawn Berry chained Byrd to their truck and dragged him to death. In separate trials, juries found all three men guilty of murder and juries sentenced King and Brewer to death, and Berry to life in prison. Texas executed Brewer in 2011, and King remains on death row.

Texas had no hate crime legislation until 2001, and Wyoming still doesn’t, so technically, neither of these murders was a hate crime. However, both captured the public’s attention enough to drive political change and enact a federal law and a state law in Byrd’s case, named for the victims. As such, it’s hard to separate these crimes from hate crime discussion, even though they did not, at the time, qualify.

Written by Hillary Johnston

A proud mother of four, Hillary is passionate about safety education. She holds a degree in Public Health and Disaster Management. Learn more

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