The tragic shooting of nine African-Americans during a Bible study at a South Carolina church in 2015 by an admitted racist and white supremacist was prosecuted late last year in federal court as a hate crime.

And it is a hate crime, isn’t it? Shockingly, no. At least not by South Carolina law.

South Carolina is one of five states that do not have laws on the books that criminalize crimes motivated by hate. Fortunately, federal statutes recognize the criminality of hate crimes, and the racist and white supremacist convicted in the case has been sentenced to death.

Every hour, a hate crime occurs in the United States. It is a crime motivated by racial, sexual or other prejudice. These crimes can intimidate a whole community by making members of certain classes — whether racial minorities, gays, lesbians, bisexual, transgender and queer people, religious minorities like Jews or Quakers or people who are perceived to be members of these groups — fearful to live and be free to move about their own communities.

Here in Santa Barbara County, the District Attorney’s Office filed hate crime charges against a known felon who verbally and physically attacked Richard Schiwietz, a 64-year-old gay man. It was alleged that Schiwietz was called foul names and then assaulted.

We haven’t seen a hate crime prosecution in Santa Barbara since 2011. Yet, the prevalence of hate crimes on a local and national level can make community members question what can and cannot be done when they themselves or someone they love is persecuted against due to a perpetrator’s bias.

What Is a Hate Crime in the Eyes of the Criminal Justice System?

A hate crime law is a law intended to deter bias-motivated violence. The FBI has formally defined a hate crime as a “criminal offense against a person or property motivated in whole in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.”

It is important to note that hate itself is not a crime. Additionally, state laws vary on the legal implications and persecutions of hate crimes.

Under California Penal Code 422.6, it is a stand-alone crime to interfere with someone else’s civil rights, or damage or destroy their property, because of a person’s disability, gender, nationality, race/ethnicity, religion or sexual orientation.

Interfering with someone else’s civil rights involves both threats and the use of force. This implies that speech alone may be the basis for charging PC 422.6 (a) if the speech itself threatens violence and the defendant had the apparent ability to carry out the threat.

The potential penalties for a hate crime under this statute include up to one year in county jail, a fine of up to $5,000, and/or up to 400 hours of community service; this is a misdemeanor. Why isn’t it a felony?

A misdemeanor hate crime CAN be charged as a felony, under Penal Code 422.7, when a person:

» Commits and is convicted of a California misdemeanor

» The prosecutor proves that this offense meets the legal definition of a hate crime discussed in PC 422.6

» The prosecutor proves that one committed the hate crime in order to interfere with the alleged victim’s exercise of his/her legal rights, AND
ONE of the following is true:

» The misdemeanor either caused an actual physical injury or occurred when one had the present ability to commit a violent injury against the victim

» The misdemeanor caused property damage costing more than $950), OR

» One has been previously convicted of a hate crime under PC 422.6

When someone commits a felony offense that is also a hate crime, under PC 422.75, the perpetrator faces an additional sentence of either one, two or three years in prison.

How Do Hate Crimes Affect Local Communities?

Hate crimes are often committed to not only send a message to the targeted victim, but also to the whole community. The damage done to victims and communities cannot be adequately assessed if one only considers physical injury.

Hate crimes create a public wound by eroding public confidence in being kept free and safe from these crimes.

What Can We Do to Prevent the Spread of Hate-Motivated Behavior?

The most important thing that adults can do to reduce the spread of hate-motivated behavior is to help young people learn to respect and celebrate diversity. Research shows that children between the ages of 5 and 8 begin to place value judgments on similarities and differences among people. It is essential that adults talk openly and honestly with children about diversity, racism and prejudice.

Community education through mass media and local organizations can also encourage involvement and support from the community. Raising awareness of the injustice and divisiveness of hate crime can make a huge difference in communities.

Lastly, hate-motivated behavior can be prevented through change of hate-crime policy and protocols. Funding hate-crime prevention strategies, creating state or federal prevention networks or coalitions, and developing training and materials are all examples of ways in which policy and legislation can promote hate-crime prevention.

Sanford Horowitz is a partner with Horowitz Law in Santa Barbara. The opinions expressed are his own. This article is not intended to provide legal advice. For legal advice on any of the information in this post, click here for the form or phone number on the Horowitz Law contact us page.