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VOLUME 7 - CHAPTER 77
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77.15 Hate Crimes, Interference With Civil Rights

    77.15.2 Hate Crimes: Miscellaneous Issues

    77.15.2.1 Hate Crimes: Constitutional Challenge
    77.15.2.2 Hate Crimes: Causation
    77.15.2.3 Hate Crimes: Mens Rea

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VOLUME 7 - CHAPTER 77

PRACTICE NOTE: In Wisconsin v. Mitchell (1993) 508 US 476 [113 SCt 2194; 124 LEd2d 436], the Supreme Court upheld the Wisconsin hate crime statute which is similar to the California statutes. In re M. S. (CA 1995) 10 C4th 698, 724-26 [42 CR2d 355], it was held that the California statute is not constitutionally overbroad under Mitchell even though it may be applied to "expression-based" misdemeanors. The reasoning for this holding was that the statute does not impinge on freedom of expression, but rather increases punishment for misdemeanors motivated by prohibited biases. (In re M.S., 10 C4th 698, 725.) In such case, the conduct is punishable in the first instance, if at all, for reasons unrelated to its expressive content. (Ibid.; see also Dobbins v. State (FL 1992) 605 So2d 922, 924 [hate crime statute, which provides for reclassification of penalties for crimes evidencing certain prejudices, does not violate the First Amendment as improperly punishing opinion].) Similarly, People v. MacKenzie (CA 1995) 34 CA4th 1256, 1267-69 [40 CR2d 793], held that the California statute does not violate the defendant's constitutional rights to free speech, due process or equal protection.

RESEARCH NOTE:

Annotation, Validity, Construction, And Effect Of "Hate Crimes" Statutes, "Ethnic Intimidation" Statutes, Or The Like, 22 ALR5th 261.

See also generally, FORECITE National™ 305.8.1 [Hate Crimes].

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VOLUME 7 - CHAPTER 77

PRACTICE NOTE: The phrase "because of" as used in California's "Hate Crime" legislation requires that the impermissible bias motivation be a "cause in fact" of the offense, whether or not other causes also exist. When multiple concurrent motives exist, the prohibited bias must be a substantial factor in bringing about the crime. (See In re M. S. (CA 1995) 10 C4th 698, 718-20 [42 CR2d 355]; People v. Superior Court (Aishman) (CA 1995) 10 C4th 735, 741 [42 CR2d 377].)

    In her concurring opinion in In re M. S., Justice Kennard stated her view that the majority opinion requires the prosecution to prove "either (1) the conduct would not have occurred in the absence of the bias motives or (2) the biased and nonbiased motives are independent of each other and the biased motives would have been sufficient to produce the conduct even in the absence of all nonbiased motives." These elements must be proven in order to establish that the bias motivation was a "cause in fact". (People v. Superior Court (Aishman), 10 C4th at 732.)

    In order to establish that the biased motive was a "substantial factor" both the majority and Justice Kennard suggest that the term "substantial factor" should generally be deemed self defining. (People v. Superior Court (Aishman), 10 C4th at 733.)

RESEARCH NOTES:

See generally, FORECITE National™ 305.8.1 [Hate Crimes].

FORECITE National™
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VOLUME 7 - CHAPTER 77

PRACTICE NOTE: In California, the hate crime statutes (Penal Code § 422.6 and § 422.7) impose criminal liability for conduct which is intended to deprive another individual of his or her civil rights. The statutes do not require that the prosecution prove the defendant acted with knowledge of particular provisions of state or federal law or that the defendant was even thinking in those terms. However, they do require a specific intent to deprive an individual of a right secured by federal and/or state law. (People v. Lashley (CA 1991) 1 CA4th 938, 947-49 [2 CR2d 629]; see also In re Joshua H. (CA 1993) 13 CA4th 1734, 1741-42 [17 CR2d 291.)

    People v. MacKenzie (CA 1995) 34 CA4th 1256, 1276-78 [40 CR2d 793] held that the California pattern instruction on hate crimes (CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC 9.95 [Felony Interference With Civil Rights] (West, 6th Ed. 1996)) correctly instructs the jury that the perpetrator must have "the specific intent to intimidate or interfere with the alleged victim's free exercise or enjoyment of any right secured to him by the Constitution or laws of California or the United States, specifically, the right to be free from the threat of violence ...."

RESEARCH NOTES:

See generally, FORECITE National™ 305.8.1 [Hate Crimes].