Should someone find themselves arrested on charges of hate crimes, what recourse does their criminal defense attorney have? We explore how hate-driven criminal activity may not be criminal at all – but an act of legal self-expression protected by free speech.

What constitutes a hate crime?

Crimes inspired by deep prejudice, such as those which target an individual or group due to racial or social differences, are considered hate crimes or bias-motivated crimes. From beatings, to vandalism, even killings, these radical crimes disturb the peace and integrity of persons, the populace and the fabric of society in general.

Although crimes perpetrated due to an unwilling target’s religion, creed, color and gender identity are documented objectively, and unanimously, as crimes of hate, there are only 21 U.S. states who include physical and mental attacks on their list, only 22 include one’s sexual preference, and a dismal 3 states and D.C. have political affiliation listed as a hate crime component.

Here’s another angle. Since every state has its own criminal code and each state defines terms a little bit differently, hate crimes will have different definitions. Burglary, larceny, and robbery are all considered crimes that are associated with theft or stealing, but these crimes vary widely in terms of penalties and charges, and are widely known as crimes committed out of hatred for public policy, neighbors and those in service positions.

Each state has their own judicial process of determining whether crimes were committed out of spite, anger or pure hatred toward one or more races, organizations, beliefs or special interest groups.

Hate crimes and punishment

Disturbing religious services, destroying property belonging to a specific ethnic class or gender, even intimidating an individual verbally can lead to not only misdemeanor charges, but a sentence enhancement based off the severity of crime.

Felonious hate crimes, such as arson, violence and theft can be enhanced by 1-4 years or more. So, if you’re convicted of a “wobbler” offense and receive two years in prison, expect an enhancement commensurate with the crime and your criminal record.

Because hate crimes in Nevada happen frequently, laws have been passed to quickly punish those who commit these crimes. However, as with any crime, there are defenses to hate crimes.

Raising defenses in hate crime cases

Any criminal defense attorney will raise one meritorious defense: the underlying crime was not motivated by hatred. Since one’s demeanor cannot be judged unless seen by witnesses, proving someone burned a vehicle or committing violence out of hatred for their color must be proven. Oftentimes, an investigator will look at the suspect’s home for clues, such as whether the person was involved with radical groups or posting hate speech on social media.

Even with social posts and other types of evidence, crimes aren’t necessarily “hate-driven” unless the jury proves beyond doubt the defendant was motivated, controlled or driven by an outside authority or personal vendetta against groups protected by Civil Rights Act. If you brandish the weapon, strike or injure the individual, or have on your person certain types of weapons, you may be seem as a perpetrator of hate crimes, yet proving such is another legal battle in and of itself.

If you’ve been accused of performing crimes against specific ethnic groups, it’s important to retain counsel immediately. Although many crimes committed today could be filled with hate, it’s much easier to prove defendants weren’t driven by misguided ire toward an individual or group than it is to prove they were.