An Act to Amend the Definition of Hate Crime

Lead Sponsors: Representative Christine Barber and Senator Cynthia Stone Creem

Impetus

General Laws c. 265, § 39(a), also known as the “hate crime” statute, punishes “[w]hoever commits an assault or a battery upon a person or damages the real or personal property of a person with the intent to intimidate such person because of such person's race, color, religion, national origin, sexual orientation, gender identity, or disability . . . .”

Therefore, under current law, a person can be charged under the statute for damaging property only if the victim who they intended to intimidate owns that property. If the victim rents or leases the property (or holds no title to the property), the suspect cannot be charged under the statute. For example, in a situation where a Black family rents a house, on which the suspect spray paints racial slurs with specific intent to intimidate the family, the suspect cannot be charged under G.L. c. 265, § 39(a), because the victims do not own the house. Similarly, a suspect who draws a swastika on the fence of a public school with the specific intent to intimidate a Jewish family who live across the street--and would see the offensive symbol every time they walk out of the front door-- cannot be charged under the statute, because the family does not own the fence.

There must be a crime that fits the act, and a punishment that fits the crime. The current statute precludes a person from being held accountable for certain behaviors that are carried out with the intent to intimidate the victims based on their race, ethnicity, religion, or other characteristics. This results in many offenses that should be prosecuted as hate crimes from being charged as such.

The proposed Bill addresses the gap in the law that has allowed this by decoupling the victim of a hate crime and the property that was damaged to commit the offense. In doing so, the Bill takes the same approach adopted by the Legislature in drafting the malicious destruction of property statute, G.L. c. 266, § 127, by criminalizing damaging the property “of another” (and not of the victim) with intent to intimidate. The bill also ensures that if restitution is paid for damaged property to its owner, it is used to rectify the damage so that it no longer intimidates the intended victim(s).

Need

Individuals should be protected against hate crimes regardless of whether they own the property which was damaged expressly to intimidate them. If any restitution is paid for the damage to the property done with intent to intimidate, that restitution must be used to restore the damage.

Significantly, according to the Executive Office of Public Safety and Security and the FBI, over the last several years, the Commonwealth has seen an alarming increase in hate crimes. See, e.g., Boston.com, FBI: Massachusetts Had a Near 10% Rise in Hate Crimes Last Year (November 17, 2020) (stating that “[h]ate crimes in Massachusetts rose by nearly 10% in 2019, according to new data released by the FBI . . . . The [C]ommonwealth reported 388 hate crimes last year, up from 352 in 2018. Massachusetts had 427 hate crimes in 2017, the highest in 15 years”). See also WBUR News, Hate Crime Reports in Massachusetts Hit 10-Year High (December 13, 2018) (stating that according to the Executive Office of Public Safety and Security, “[t]he number of hate crimes reported to the state increased by almost 10 percent to a 10-year high in 2017”).

Legislative Fix

  • Amends G.L. c. 265, § 39(a) to amend the definition of hate crime.
  • Adopts the approach similar to that adopted by the Legislature in drafting the malicious destruction of property statute, G.L. c. 266, § 127, by decoupling the victim of the hate crime from the person who owns the property damaged with intent to intimidate the victim.
  • Adds a provision obligating the owner of the property to use any restitution paid to compensate for the property damage to restore the property so that the damage no longer intimidates the victim(s)