Prosecuting the Hate Crime

Hate-motivated crimes, or hate crimes have gained an extraordinary amount of publicity in recent years; however, these crimes are not reported as often as assumed, and they are rarely ever prosecuted.  Recent examples of such crimes are the cases of Treyvon Martin, Michael Brown, Tyler Clementi, Christopher Lane, and Eric Gardner.  Even more recently was the North Carolina Chapel Hill shootings that stole the lives of Deah Barakat, his wife Yusor Mohammad, and her sister, Razan Mohammad.  Self-proclaimed Atheist, Craig Stephen Hicks, shot the three Muslim students in their home execution-style in what mass media reported as “a dispute between neighbors” fueled by rage over a parking spot.  However, family members and supporters all over the world know what it really was: a hate crime. 

Communities are very often left unhappy and even outraged when an apparently race, gender, or religion-based crime against one of “their own” isn’t prosecuted or even charged as a hate crime.   This has led to widespread movements, protests, and even riots as seen recently in Ferguson, Missouri. Communities begin to feel it is because of law enforcement or prosecutorial bias.  The truth is, it may not be because of law enforcement or prosecutorial bias at all, it may simply be a “function of how difficult it is to prove such cases,” as experts say. 

Hate crimes, also known as bias-motivated crimes, are crimes committed against a victim because of the victim’s actual or perceived race, national origin, ethnicity, religion, or sexual orientation.  Laws governing hate crimes vary from state to state, but generally, securing a conviction for a hate crime means that the prosecutor must prove to a judge or jury that the defendant committed the underlying criminal act (assault, vandalism, murder, etc.) and did so with the requisite mens rea, or intent.  The Federal Bureau of Investigation (FBI) defines a hate crime as:

“ … a traditional offense like murder, arson, or vandalism with an added element of bias.  For the purposes of collecting statistics, Congress has defined a hate crime as a ‘criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, ethnic origin or sexual orientation.’  Hate itself is not a crime – and the FBI is mindful of protecting freedom of speech and other civil liberties.”

Proving the requisite intent in a hate crime means that a prosecutor must be able to prove beyond a reasonable doubt that the defendant committed the crime simply because of the victim’s race, religion, or other prohibited reason.  This is where the challenge begins because “[t]he most hateful person in the world wouldn’t typically say to police, ‘I picked the victim because they were Polish or Italian or something else,” says Law Professor at the University of Wisconsin at Madison.  What this means for a prosecutor attempting to try a defendant under a hate crime statute is that he must get  into the mind of the defendant at the time the crime was committed, and then prove to a jury beyond a reasonable doubt that not only did the defendant hate the victim’s race, religion, or sexual orientation, but that the hate of that cognizable characteristic was the exact motive of the crime.  Even though a defendant may have purposely chosen the victim because, say, he was black, Muslim, or gay, it is highly unlikely that the defendant will confess that particular motivation. 

For example, in 2013 in Duncan, Oklahoma, two black teenagers were accused of shooting a white Australian college student to death.  One of the implicated teenagers posted a “tweet” on Twitter saying that he didn’t like white people; he even used the word “hate.”  One tweet read, “90% of white ppl are nasty.  #HATETHEM.”  Then, a later tweet posted after the George Zimmerman trial read, “Ayeee I knocked out 5 woods since Zimmerman court!:) …,” using the racial term “wood” to signify a white person.  Even with these clear representations of hatred, prosecutors did not file hate crime charges because “[t]he evidence [was] insufficient to establish that race was the primary motive in the murder of Christopher Lane,” said county District Attorney Jason Hicks.

Even in the recent February 2015 Chapel Hill shooting, Craig Hicks described his “anti-theism” beliefs openly and wrote that organized religions were based on superstition and were “ignorant and dangerous.”  Hicks’ Facebook page was being pointed at by many to show how much he “hated faith;” however, using social media posts alone as evidence to prove a crime was motivated by hate crosses into dangerous First Amendment territories.  The father of Yusor and Razan Mohammad also said that when his son-in-law, Deah, lived alone in the condominium, the family never had any problems.   However, once his daughter moved in with Deah, wearing a headscarf that clearly identified her as a Muslim, the trouble started.  Her father recalled a conversation where his daughter Yusor told him, “Daddy, I think [Hicks] hates us for who we are.”  Law enforcement in Chapel Hill are still investigating the vicious crime to find any other factors that may assist prosecutors in deciding whether to file hate crime charges.

Every criminal statute contains an element of mens rea that must be proven beyond a reasonable doubt before a jury can find the defendant guilty of that crime; however, it is clear to see how the burden of proving mens rea in a hate crime is far more difficult.  Proving hatred towards a particular religion or race alone is not enough.  Even presenting prior social media postings or prior statements is not enough to show that at the time the crime was committed, the defendant committed the crime because of his hatred towards the victim’s religion, race, or other protected characteristic because.  Prosecutors have to be extraordinarily careful because of the risk of running into First Amendment challenges.  The crime can be a clear crime of hate, but as commonly said, “it’s not about what you know, it’s what you can prove in court,” and a prosecutor must be able to prove before a jury that the crime was driven by bias.  This is an extremely large burden and prosecutors need a mountain of evidence to be able to prove this beyond a reasonable doubt.  Aside from a defendant’s own social media postings or statements, it is important for prosecutors to consider other pieces of evidence, which may include:

• Defendant’s membership in a group that expresses hatred towards certain groups
• Defendant’s possession of literature or symbols associated with bias towards a certain group
• Defendant’s own writings or tattoos
• Prior instances of altercation with the victim or member of a hated group
• Statements made by the defendant immediately before, during, and immediately after the crime

Prosecutors must also ensure that there is constant communication and cooperation between law enforcement and themselves, as the most important evidence needed by prosecutors to prove a hate crime lies in law enforcement’s ability to question a defendant after arrest and after all Constitutional safeguards (Miranda warnings).  It is also extremely important to question all witnesses thoroughly.  In cases where the victim is not available to testify, any prior conversations they may have had with family or friends about the defendant can prove useful, similar to Yusor Mohammad’s conversation with her father. 

It is clear to see how difficult it can be for a prosecutor to prove a hate crime.  In addition to showing hate leading up to the crime, there must be a presence of hate during the crime and the crime must have been driven by that hate.  “At either the state or federal level, proving a hate crime is a high burden,” says an ex-federal prosecutor.  It must be understood that the problem in prosecuting a hate crime is not law enforcement or prosecutorial bias, but the burden of proving the defendant’s bias. 

By Mahira N. Khan

Photo by Joel Kramer via Flickr