Hate Crime in California: Defined as a Bias
The main purpose of hate crime laws in California, as incorporated under various California Penal Code sections, is to deter threats, violence and other violations, including civil rights violations, against an individual, based on the individual’s real or perceived characteristics, against which the defendant holds some bias.
It is this “bias”, whether it be a racial bias, a nationality bias, etc, that causes the defendant to perform an action, which is the mainstay of the particular charge, under the various types of hate crimes under the criminal statute. In particular, sections of the Code that address hate crimes include PC §§ 422.55, 422.56, 422.57, 422.6, and 422.75. Furthermore, the Government Code specifically addresses the “disability” element.
“Characteristics” that typically motivate hate crimes (noted in law):
- Disability
- Gender
- Nationality
- Race or ethnicity
- Religion
- Sexual orientation
- Associating with a group or an individual mentioned above
- Hate crime in California also refers to bias-motivated property destruction
The Three Types of Hate Crimes:
- Interference with Civil Rights by Force
- Interference with Civil Rights by Threat
- Interference with Civil Rights by Damaging Property
1. Interference with Civil Rights by Force
The prosecutor charges a defendant with this crime where the prosecutor can show that the defendant forcefully interfered with someone else’s civil rights, as protected under the California Constitution and state laws, and / or under the Constitution and laws of the United States.
The burden of proof beyond a reasonable doubt for the prosecution is to prove each of the following elements:
- Force was used by the accused in order to willfully interfere with, or to harm, intimidate or oppress, the rights or enjoyment of rights secured by the laws and Constitution of California and / or the United States; and
- The interference, harm, intimidation or oppression described in the first element was motivated to whatever extent (“in whole or in part”) by the real or perceived disability, gender, nationality, race or ethnicity, religion, sexual orientation, or association with people having the listed characteristics; and
- The intention of the accused was to interfere with another person’s rights as protected by law.
The following questions deal with some of the pertinent issues dealt with under all hate crimes in California:
What is a “willful” act?
A willful act is committed by someone who does the act in question willingly or on purpose. The same definition applies to all hate crimes that use the term “willful” defined under relevant California statutes in the Penal Code.
What is a “disability” for purposes of proving a hate crime?
“Disability” refers to either a physical or a mental disability. However, for purposes of hate crimes, the Government Code has provided very specific terminology, which is outlined here:
A person has a “physical disability” when the person has a physiological disease or disorder or condition or cosmetic disfigurement or anatomical (physical) loss, like a lost limb. This physical state of the person affects at least one of the following bodily systems: neurological, immunological, musculoskeletal, sensory (mostly the special sense organs), respiratory (and included here are speech organs), cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin or endocrine systems.
A “mental disability” occurs when a person has either a mental or a psychological condition that limits a significant life activity. This term includes mental retardation, organic brain syndrome and emotional or mental illness. It also includes learning disabilities.
How broad is the term “nationality”?
For purposes of this crime, the term nationality includes citizenship, country of origin, and national origin.
Is a belief in atheism also included under “religion”?
Yes. All aspects of religion are included and protected under this broad terminology. Any kind of religious observance and practice comes under this term. This includes agnosticism and atheism.
If you are accused of this crime, is it necessary for the prosecution to also show that you “knew” that you were violating someone else’s rights? Or, is it enough to simply do an act that violates rights of another?
It is sufficient to do the act that violates the rights of another – even if your defense is that you didn’t know you were violating the law. The courts have addressed this particular issue and have said that as long as the right itself is specifically protected under the laws of the United States, it is sufficient for the prosecution simply to show that you intended to invade some interest that is protected under the Constitution, of either the state of California or the United States, or under some statute. That you had awareness of violating the law when you did the act is therefore not important.
If I attempted a hate crime in California but did not complete it, can I still be charged?
Yes. As long as the prosecution can show circumstantial evidence of your intent to interfere with someone’s rights and an action that is directly connected to one of the hate crimes (even if unsuccessfully perpetrated), you can be charged with an attempted hate crime and punished in California, though not as severely as if you had completed the crime in full.
2. Interference with Civil Rights by Threat
Someone accused under this offense has threatened to use violence against the victim. Many of the elements required to prove this crime are replicated as under “Misdemeanor Interference with Civil Rights by Force” (above). The prosecution has the burden of proving all five of the following elements beyond a reasonable doubt in order to charge a person with this crime:
- The accused used a threat of violent force against another person; and
- Any reasonable person subject to this threat would be fearful because it seemed as if the accused was willing and able to act on the threat made; and
- The accused used the threat made to willfully interfere with or harm or intimidate or oppress the rights or enjoyment of rights secured by the laws and Constitution of California and / or the United States; and
- The interference, harm, intimidation or oppression described in the first element was motivated to whatever extent (“in whole or in part”) by the real or perceived disability, gender, nationality, race or ethnicity, religion, sexual orientation, or association with people having the listed characteristics; and
- The intention of the accused was to interfere with another person’s rights as protected by law
3. Interference with Civil Rights by Damaging Property
This type of hate crime in California requires a showing of property damage as a form of civil rights interference, and because of bias motivated by characteristics associated with hate crimes, as dealt with in the definition of the elements of hate crimes above and also in the following sections. Some of the elements already seen in hate crimes above are replicated again here.
For this type of crime, the prosecution must show the following five elements beyond a reasonable doubt:
- The person accused of this crime defaced, or damaged, or destroyed real property or personal property which is owned or used, or in the possession of, or occupied by someone else; and
The person accused knew that the property in question belonged to, was in the possession of, or occupied by the victim of the crime; and - The reason why the accused acted this way was to interfere with, or to intimidate the victim’s rights or enjoyment of rights secured by the laws and Constitution of California and / or the United States; and
- The interference, harm, intimidation or oppression described in the first element was motivated to whatever extent (“in whole or in part”) by the real or perceived disability, gender, nationality, race or ethnicity, religion, sexual orientation, or association with people having the listed characteristics; and
- The intention of the accused was to interfere with another person’s rights as protected by law
Does the victim of this kind of property destruction or other forms of damage need to also be the owner the property?
No. Even if the relevant code section on point, PC § 422.6(b) uses the phrase “property of any other person” (emphasis added) to describe property of the victim, the meaning is much broader than simply ownership. The courts have solved this issue by noting that, as long as the victim has frequently used or possessed or occupied the property in question, or that the property can be readily associated with the victim, this is sufficient for proving the property element of this crime. Interestingly, a classroom has been found to be “property” for purposes of hate crimes based on its frequent use by students.
Possible Defenses for Hate Crime in California
1. Since the bias motivation element is critical as an element for each of the hate crimes, if the prosecution fails to connect your action to a bias motivated by one of the characteristics associated with hate crimes, you cannot be charged with this crime. ( You might however be charged with another crime, depending on evidence of criminal intent and certain actions).
2. Freedom of speech, as long as the speech was not “fighting words”. This means that if you claim First Amendment protection for having used words that are likely to cause violence in the person to whom they are addressed, your defense will fail. There is no social value in such words that might consequently merit constitutional protection. The cases dealing with this highly complex issue, where freedom of the individual as far as speech collide head-on with protection of rights of diverse members of society, have shown that if punishing you for your intimidating words or acts would result in punishing the content of your message, you might be successful in asserting a First Amendment defense. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
Possible Punishment for Hate Crime in California
If the prosecution is successful in proving its case, then punishment can be as follows, depending on the circumstances and acts particular to the case in question:
If you are charged with a misdemeanor hate crime, you may receive a prison sentence of a maximum of one year, monetary punishment to a maximum of $5,000 and possible additional mandatory community service hours.
If charged as a felony, you may receive a prison sentence to a maximum of three years and possibly further monetary penalties.
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Yuliya Kelmansky is an Expert in Criminal Law who has over 15 years of practice defending a variety of criminal cases.
