Traditionally, hate crime legislation offered protection to persons because of “race, color, religion or national origin,”[i]as in the case of the 1969 federal hate crimes law. Most state laws now include additional protected groups in their hate crime legislations.
The FBI defines a hate crime to be “a criminal offense committed against a person, property or society which is motivated, in whole or in part, by the offender’s bias against a race, religion, disability, sexual orientation, or ethnicity/national origin.”[ii]
Crimes motivated by hatred of a person’s sexual orientation (whether the victim is a heterosexual, bisexual or homosexual) are also sometimes included under hate crimes. Current statutes permit federal prosecution of hate crimes committed on the basis of a person’s race, color, religion, or nation origin when engaging in a federally protected activity.[iii] The six “federally protected activities” enumerated in the statute are: (A) enrolling in or attending a public school or public college; (B) participating in or enjoying a service, program, facility or activity provided or administered by any State or local government; (C) applying for or enjoying employment; (D) serving in a State court as a grand or petit juror; (E) traveling in or using a facility of interstate commerce; and (F) enjoying the goods or services of certain places of public accommodation.[iv] However, federal laws only attach an extended sentence penalty to those hate crimes that are motivated by racism, sexism or xenophobia. Hate crimes based on gender, sexual orientation, sexual identity, or disability do not result in extra sentences.
The use of the term “perceived” in the definition of hate crimes in some state legislation takes special significance because many of the hate crimes are based in error on the incorrect belief that the victim is gay, or a member of some group or class that the perpetrator hates.
[i] 18 U.S.C. § 245
[iii] 18 U.S.C. § 245
[iv] 18 U.S.C. § 245(b)(2)