When Does a Hate Incident Become a Hate Crime?
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Anti-Asian Hate rally in Washington, D.C. (Photo by Elvert Barnes Photography | Wikipedia)
This true story, which occurred in Southern California, highlights how a hate act can escalate into a hate crime. The offender in Cesar's case was investigated and ultimately prosecuted under hate crime laws.
Distinguishing a Hate Incident from a Hate Crime?
Not all hate incidents rise to the level of a hate crime. While hate incidents involve acts of prejudice or bias, a hate crime is a criminal act committed against a person, property, or society, motivated by bias or prejudice based on characteristics such as race, ethnicity, national origin, religion, sexual orientation, gender identity, or disability. For an act to be classified as a hate crime, there must be:
An underlying criminal act (e.g., assault, vandalism, or threats), and
Evidence that the act was motivated by bias or hate.
Hate Crime Prevention Laws
Hate Crime Prevention laws are in effect both on the federal and state levels. Under these legislative enactments, several elements must necessarily be present for the hate act to be prosecuted as a hate crime. For example, the 2009 Hate Crime Prevention Act under 18 U.S. Code Section 249 criminalizes the hate act if committed because of the victim’s race, color, religion or national origin. This protection also extends to victims targeted because of their gender, sexual orientation, gender identity or disability. It also requires that the hate act occurred in federally regulated areas.
Under the relevant federal law, the protection could also be not just based on the place of incident, but also protects an individual if the hate act interferes with federally protected activities such as voting, attending school or enjoying public facilities.
Each State has its own hate crime statutes. In the State of California, the hate crime law is found in California Penal Code Section 422.55 and it defines what constitutes hate crimes and imposes sentence enhancements or increases in penalties.
When prosecuting a hate crime, the biggest challenge is not just proving the underlying criminal act but proving bias. There must be proof that the offender’s intent or motive for committing the crime is targeted against a related protected class or activity. In most cases, demonstrating this bias motivation requires direct evidence in criminal cases.
Prosecuting hate crimes involves more than proving the underlying criminal act—it requires demonstrating the offender’s bias or intent. Evidence of bias often hinges on direct proof, such as statements or actions that clearly show motivation rooted in prejudice.
Hate Crime Prevention laws are in effect both on the federal and state levels.
What If It’s Not a Hate Crime?
When the elements of a hate crime are not met under federal or state law, victims may still seek recourse through civil or administrative remedies. Reporting hate incidents remains critical, as these acts fall under civil rights protections and can lead to the following depending on the circumstances of each case: civil penalties, restraining orders, educational penalties, fines, and corrective actions.
Some cases may even be referred to community mediation programs focused on reconciliation and education.
The Importance of Reporting
Whether it is a hate incident or a hate crime, the emotional and psychological impact on victims is often the same. Reporting these acts is vital—not just to seek justice but to ensure that everyone in the community feels safe and protected.
If you or someone you know has been a victim of a hate crime or hate incident: (1)Dial 911 immediately (2) Report the matter to your local police and (3) File a report with the FBI at tips.FBI.gov, civilrights.justice.gov, or by calling 1-800-CALL-FBI.
Taking action ensures that victims' voices are heard, justice is pursued, and communities can come together to combat hate.
Atty. Lourdes Tancinco is an immigration attorney and immigrant rights advocate based in the San Francisco Bay area and a partner at the Tancinco Law P.C., law firm established since 1992. She is also a producer/host of Pusong Pinoy sa Amerika, an immigration law informational show aired on GMA Pinoy TV. She may be reached at law@tancinco.com, www.tancinco.com, facebook/tancincolaw, or at 1-888-930-0808)
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