Hate crimes are not new, but they have become an increasingly larger focus for state and federal law enforcement. Since the first federal hate crimes statute was signed into law in 1968, statutory laws (meaning written laws) have evolved to better define what constitutes a hate crime, clarify penalties for those convicted of such crimes, and ultimately protect people against prejudicially motivated crimes.
Although state laws vary, those charged with offenses considered “hate crimes” at either the state or federal level are likely to face more severe penalties. What makes something a “hate crime” or a hate crime offense punishable by harsher penalties, however, is a matter of the law that, likely many other legal intricacies, requires certain elements to be present.
As one of the most sought after criminal defense attorneys in the country, Attorney Ian N. Friedman has weighed in on this very topic and the confusion surrounding how hate crimes in the criminal justice system with law students, fellow attorneys, and the media – including Cleveland 19 News. Below, we break down Ohio hates crime laws, federal hate crime laws, and what they mean.
What is a Hate Crime?
A hate crime is generally defined as a criminal offense against a person or property that is “motivated” by a person’s bias against a group of people. Like any crime, hate crimes have their origin in the desire to protect people’s safety, and to punish those who commit acts our society has deemed, through legislation, as punishable by various penalties.
For hate crimes specifically, there is the added distinction that hates crimes do not only affect the individual or property attacked, but also the community or group of people the individual or property represents. In addition to harming a person or destroying a piece of property, they often create fear among the group of people to whom that person or property belonged, or to whom the person or property was perceived to have belonged, and are therefore distinguished as serious offenses in our criminal laws.
In short, hate crimes can be many different types of criminal acts – from defacing property using ethnic slurs, burning a building (arson), and throwing a brick through a window to actual, attempted, or threatened violence against a person, and in some cases interfering with another’s civil rights.
Intent Matters in Hate Crimes
When it comes to criminal law, there are two general elements of a crime:
- Actus rea, or the physical act of doing/attempting to do something; and
- Mens rea, which is the intent a person had when committing a crime.
Mens rea, or general intent, is a critical aspect of most of our laws, and it’s what makes a carefully calculated murder different from DUI manslaughter, or accidentally walking out of the store with a six-pack in your cart you forgot about different from hiding a rack of ribs in your jacket and sneaking out the emergency exit. It is also an important element in hate crimes, as they by law must be committed intentionally, willingly, or knowingly for prejudicial reasons.
While those prejudicial reasons, under the law, may vary from state to state, they commonly involve:
- Race, ethnicity, or color;
- National origin;
- Sexual orientation or gender identity (in some states).
Ohio Hate Crime Laws
The Cleveland 19 News article featuring Attorney Friedman’s insight on hate crimes concerns high rates of hate-based offenses in Ohio, which the 2016 FBI Hate Crime Statistics report ranks third in the country for reported hate crimes (which are often unreported). As Mr. Friedman notes in the article, there are some key differences between hate crime laws in Ohio and those in other states.
- Ohio broadly defines a hate crime as a criminal act which is (1) motivated by prejudice or intolerance; and (2) is directed toward a member of a specific racial, religious, gender, or social group.
- Ohio does not have any actual “stand-alone” hate crime offense. No matter the crime, hate crimes are not a statutory criminal charge. However, hate crimes can be factors that enhance penalties, for both misdemeanors and felonies. They provide judges with greater discretion over sentences or other penalties.
- The only statute in the Ohio Revised Code which speaks directly to hate crimes is the “ethnic intimidation” provision, which prohibits misdemeanor offenses such as menacing, criminal damaging, criminal mischief, and certain forms of phone harassment when committed because of the religion, race, national origin, or color of a person or a group of people.
- Ohio does not currently make any reference to crimes that are motivated by prejudice against a person’s sexual orientation or gender identity.
Penalties for hate crime offenses depend on many different factors, and particularly on the underlying offense.
- Felonies – As enhancements or discretionary sentencing factors, hate crime factors can result in longer terms of incarceration. Judges presiding over criminal cases involving alleged hate-motivated crimes in Ohio have broad discretion when it comes to how, if at all, any hate crime factor will impact a case and the penalties they impose.
- Misdemeanor ethnic intimidation – For misdemeanor crimes included in the state’s ethnic intimidation law, offenses can be elevated to higher-level misdemeanors or to a felony, which will increase potential penalties. First-degree misdemeanor telephone harassment typically punishable by up to six months in jail, for example, may be elevated to a fifth-degree felony if the defendant is found guilty of ethnic intimidation, which is punishable by up to one year in prison. In order for that to happen, though, the prosecution must prove intent; meaning, they must prove beyond a reasonable doubt that the crime was motivated by prejudice against race, color, national origin, religion, or gender.
Hate crime legislation has become a bigger focus for many lawmakers and advocates, and the dramatic variances in how state laws define hate crimes and the different bias motivations, different protected classes, and penalties related to them may soon become smaller. In Ohio, lawmakers are currently working on adding sexual orientation as a bias motivation to its existing law.
Federal Hate Crime Laws
While Ohio and other states are continually proposing, amending, and enacting new laws regarding hate crimes and protected groups, there are still federal laws regarding hate-motivated offenses. As such, serious bias-motivated offenses targeting specific groups of people can be prosecuted by the federal government under statutory hate crime laws. These include:
Hate Crimes Prevention Act
The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act was passed in 2009. It substantially expanded the federal definition of hate crimes, added new protections based on actual or perceived disability, gender/gender identity, and sexual orientation, and provided federal law enforcement with greater authority to investigate, indict, and convict individuals for prejudice-motivated offenses.
Whether a crime will be prosecuted by the state or the federal government is a matter that varies from case to case, but most federal prosecutions involve interstate crimes, crimes committed directly against the federal government or on federal land. Under the Hate Crimes Prevention Act, however, the federal government can prosecute defendants for hate crimes when:
- The state doesn’t have jurisdiction or has requested the federal government assume jurisdiction;
- State laws where the alleged crime occurred did not result in verdicts or sentences which align with the federal government’s goal to eradicate bias-motivated violence; or
- Prosecution by the federal government is in the best interests of the public and the securement of justice.
Broad criteria, coupled with increasing awareness about hate crimes and the need for stronger enforcement, means the federal government prosecutes many hate crime cases, especially when they involve violent crimes and major property crimes. The Southern District of Ohio saw its first conviction under the federal Hate Crimes Prevention Act in December 2018, when a Huber Heights man was convicted over an assault on a victim at a Cincinnati restaurant who identified himself as Jewish.
Other Federal Hate Crime Laws
In addition to the Hate Crimes Prevention Act, there are several other federal hate crime statutes, including:
- Damage to Religious Property, Church Arson Prevention Act, which prohibits bias-motivated intentional defacing, damaging, or destruction of property because of its religious nature, as well as intentionally obstructing another from their right to exercise their religious beliefs.
- Criminal interference with the right to fair housing, which prohibits the use or threatened use of force to interfere with housing rights based on a victim’s religion, race, color, gender, disability, national origin, or familial status. A Cincinnati man pleaded guilty to this federal charge in December 2018 for spray painting racist remarks in a home he rented from an interracial couple.
- Violent Interference with Federally Protected Rights, which criminalizes use or threatened use of force to willfully interfere with a person’s participation in a federally protected activity because of their religion, race, color, or national origin. Protected rights include public education, jury duty, traveling, and enjoyment of public accommodations, as well as helping another person exercise those rights.
- Conspiracy against rights, which leverages conspiracy laws to prohibit two or more individuals from conspiring to threaten, intimidate, or harm a person in any state, district, or territory in exercising any legal or Constitutional privilege or right.
Hate crime laws are constantly evolving, but regardless of what criminal statutes may or may not look like in the future, anyone facing charges involving allegations of hate-motivated crimes today are still exposed to the potential for elevated charges, enhanced penalties, and federal indictments. As with any criminal allegation, defendants have the right to challenge the government’s case against them – and their attempts to prove a defendant’s intent and prejudicial motives.
Experienced criminal defense attorneys like those at Friedman & Nemecek, L.L.C. Attorneys at Law exist to ensure the government does not overstep its bounds in its zealousness to investigate and prosecute suspects, ensure it meets its burden of proof beyond a reasonable doubt, and protect clients’ rights to due process under the law when they are charged with crimes.
Call (888) 694-4645 or contact our firm to speak with an attorney about any potential criminal matter in Cleveland or the state of Ohio.