Robbins: What constitutes a hate crime? | VailDaily.com

Robbins: What constitutes a hate crime?

Editor’s note: This is the second column of a two-part series.

Let’s start with the words themselves: “hate” and “crime.” While we all have some feel for what they mean, what punch do they really pack?

Let’s start with “crime,” then back into “hate.”

In common parlance, a “crime” is an unlawful act punishable by a state or other authority. It is an offense, which if proven, may be punished. Its legal definition shades a little differently. At law, a “crime” may be thought of as a violation of a law in which there is injury to the public or a member of the public and a term in jail or prison, and/or a fine as possible penalties. 

What then of “hate?” Hate is intense hostility and aversion usually deriving from fear, anger, or sense of injury. It consists of extreme dislike or disgust. The definition does not attempt to underline what animates hostility. My “Black’s Law Dictionary” has no entry where “hate” would otherwise be found: between “Hat money” and “Hauber” there is simply nothing there. At law, “hate” is simply what we think of as hate.

In 1968 Congress passed (and President Lyndon Johnson signed into law) the first federal hate crimes statute. A “statute” is a law enacted by the legislature rather than a law developed over time by precedential court decisions which are known as the “common law.”

The statute made it a federal crime to use force — or threaten to force — to willfully interfere with any person because of race, color, religion, or national origin. In particular, it became a crime to use or threaten to use force against a person owing to his/her race, etc., while he or she is participating in a federally protected activity, such as public education, employment, jury service, travel, the enjoyment of public accommodations, or helping another person to do so. 

Defining the crime

While the word “hate” has no specific legal definition, the same cannot be said of the conjunction of the two words, “hate” and “crime.” 

The legal definition of a hate crime is an offense where the offender attacks the victim because of the victim’s actual or perceived race, color, religion, disability, sexual orientation, or national origin. If I attack you because I don’t like you or “just because,” that does not constitute a hate crime. If, on the other hand, I assault you because of your ethnic origin, race, color, religion or national origin — or what I perceive to be or status in any of those categories — then my violence towards you may be construed as a crime motivated by hate.

Read three words back in that last sentence. Note the word “motivated,” which I placed there like a legal tripwire. In hate crimes, motive or intent is — if not quite everything — a linchpin.

Let’s now go back to that sad day of Aug. 3, the day of the El Paso shootings.

If the gunman had walked into that Walmart and opened fire with no particular intent other than to maim and kill, however horrific that rightly would have been, it would not have amounted to a hate crime. That his “manifesto” highlighted his displaced rage against Hispanics is a different matter. As his screed shone a light brightly on the intent behind his crime, his act will likely give rise to being charged with a hate crime. In the manifesto he explicated his intent: to target Mexicans because they were Mexicans or of Mexican origin. His ethnic hatred of Mexicans plotted the crime, steered his car the 600 miles that he drove, and pulled the trigger.

His intent could have scarcely been clearer.

If a death results from the execution of a hate crime (or one attempts to kill), or if the offense includes kidnapping or an attempt to kidnap, or aggravated sexual abuse or an attempt to commit aggravated sexual abuse, the offender may be punished by up to life in prison.

State hate crimes

State hate crimes are on the books as well.

In the El Paso case, the gunman parroted the President’s inflammatory rhetoric inferring a “Hispanic invasion.” It detailed a plan to separate America into territories by race and warned that white people were being replaced by foreigners. His screed left little doubt that he was motivated by ethnic hate and that his crimes were committed in the name of racial, ethnic “cleansing” and what he perceived as the superiority of his own racial and ethnic line.

A hate crime is a crime of intent.

In this case, there seems to be no fog of confusion, no mist of complication. The gunman killed, it seems, solely out of hatred for the victim’s differences and divergence from some ideal of purity that had taken root in the fetid fields of his imagination. Clearly, he did not subscribe to the mantra of diversity as a strength and because he could not reign in his odious impulse, innocents —mothers, fathers, children — once again lie dead. 

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, robbins@slblaw.com.