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Anyone who has ever been to high school has probably witnessed something that vaguely resembles a hate crime. After all, teens will tease and bully each other for almost anything, from the color of their sweaters to the color of their skin. But when does a stupid joke cross the line and become a hate crime?
Just about every state has its own statute defining hate crimes. But there are some common elements to these laws.
First, there must be an intent to hurt and intimidate someone because of that person's race, ethnicity, national origin, religion, sexual orientation, or disability.
The underlying motive for a hate crime must be one of those protected characteristics, or one specifically mentioned by law. So if someone simply picks on you because you are small or he doesn't like you, then his stupid jokes may just be stupid jokes.
However, if that person picks you out because you are gay or because of your ethnicity, then the same stupid jokes or acts of intimidation may be considered hate crimes.
A person's intent, however, can be very difficult to prove. If charges are brought against someone for a hate crime, it will be the job of prosecutors to prove hate was the underlying motive, and the criminal defense attorney's job to prove otherwise.
That is why for many crimes, prosecutors will charge someone with simple assault or battery in addition to a hate crime. So even if they can't prove hate was the underlying motive for the criminal act, then the defendant can still potentially face penalties for a non-hate-related assault.
A hate crime is oftentimes an enhancer for an already existing crime. So the penalties for illegal harassment, intimidation, or assault will simply be greater if hate motivated the crime. But a stupid joke that doesn't rise to the level of a crime like intimidation may be just that -- a stupid joke.