Chicago has sought to deal with the increasing problem of hate crime using legislative means. The provisions of the Illinois Hate Crime Act (IHCA), 720 ILCS 5/12-7.1, are the leading authority on the management of the criminal process. The act creates an imperative on the state to prosecute but does not explicitly remove the opportunity for private civil cases to take place. Many victims take the opportunity to sue for damages, even when the aggressor is a public authority or their representatives. The range of options for the court includes actual damages, punitive damages, and additional costs, including attorney fees. At other times, the court may offer injunctive relief in order to stop the offending behavior from happening.
The criteria for what constitutes a hate crime can be fluid and those who offend have often used the ambiguity of definitions in order to attempt a get-out-clause for their behavior. Typically, they will claim that this is a case of freedom of speech, which is constitutionally guaranteed. For those who actually go on to commit acts of violence, the case is much simpler since the prosecutor can go for the assault line of questioning and later prove that hate-inspired motives were at play. A crime becomes a hate crime when it is motivated by perceived creed, race, color, gender, ancestry, religion, sexual orientation, disability, nationality and even membership of a particular group. Bigotry is at the heart of this crime and will be part of the Mens Rea during the prosecution.
The Importance of the Motivating Factors
Normal crimes on the statute books are elevated to hate crimes by virtue of the motivations behind them. This is despite the fact that there may be alternative motivating factors. Anything from mob action to terrorism to trespass can become a hate crime as long as the prosecutor is able to show that the defendant was motivated by bigotry and hate. The motivation can be deciphered from their words and membership of certain groups. For example, if someone belongs to a recognized hate group such as the Ku Klux Klan then any crimes they commit are suspect for the criteria, particularly if they use hate-filled language before, during, and after the commission of the crime. This type of thinking has sometimes led to complaints about civil liberties being trampled on.
One of the important subtleties of the law is that the qualifying criteria focuses on perceived rather than actual status. For example, if someone’s perception is that a victim is gay when he or she commits the crime, it does not matter whether the victim is in reality gay. The court will merely focus on the fact that the criminal conduct was motivated by the victim’s perceived sexual orientation. An amendment to that effect was campaigned for by the Chicago Lawyers’ Committee for Civil Rights Under Law. It was designed to close a loophole that could allow defendants to get away by claiming that their perceptions were in actuality incorrect, so they did not commit a hate crime.
Under the law in Chicago, mixed motives tend to favor the hate motive. That means that even if the defendant is able to prove that he or she was primarily motivated by greed to rob, a racist element will take precedence in terms of determining whether it is a hate crime or not. The law also provides for an escalation of sentencing guidelines if a hate motive can be proved in court. This should be of interest to the defending attorney in terms of reducing the possibility of harsh penalties. Particular note should also be taken of the intersection with federal law because that could lead to even more serious consequences for the defendant. Call David Freidberg Attorney at Law right now at 312-560-7100 to get the legal help you need today.