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What Should I Know About Hate Crimes?
© 1991, 1993, 2000 The State Bar of California NOTE: The purpose of this pamphlet is to provide general information on the law, which is subject to change. If you have a specific legal problem, you may want to consult a lawyer. 1. What is a hate crime? A hate crime is committed when someone uses violence against you or your property or threatens violence because of who you are, who people believe you are or the people with whom you associate. In California, the law specifically forbids someone to use force or threats of force to interfere with your rights under the United States or California constitutions or other federal or state laws because of certain facts (real or perceived) about you. These include your race, color, religion, ancestry, national origin, disability, gender, or sexual orientation. Civil law also forbids using violence or threats of violence motivated by these same personal attributes, as well as age, political affiliation, or position in a labor dispute. It doesn't matter whether the attributes are real or simply perceived. 2. What are some examples of hate crimes? Hate crimes take many forms. They can include physical assault, attempted assault or a written or spoken threat of assault. An assault is committed when one person attempts to physically or emotionally harm another person. Drawing a swastika on your door, burning a cross on your lawn, splashing paint on your car or damaging your property in other ways also can be hate crimes. Other hate crimes may involve purposely disturbing a meeting of a group of worshippers, a gay political club or an ethnic social group. 3. Should I report a hate crime to the police? Yes. Tell the officers what happened and why you believe a hate crime was committed. Explain why you believe that you were harmed because of your race, for example, or your disability or the church you attend. This is important because law enforcement agencies are trying to gather statistics and other information that may be useful in dealing with hate crimes and hate groups. The California Attorney General's Office is keeping track of hate crimes; it will use the information you give to law enforcement agencies. What if you don't know who committed the crime and the police don't investigate? You can call the California Attorney General's Office. In some cases, that office will investigate when police do not. You also may want to get in touch with the state Department of Fair Employment and Housing (see #10)or a private attorney (see #11) to help you persuade the police to investigate. In addition, reporting the crime to the police can be important later if you want to apply to the state's Victims of Crime program (see #8). 4. How can I stop someone from continuing to harm me or my property? If you know who harmed or threatened to harm you or your property, you can ask the court to issue a restraining order. Such an order prohibits the person or persons from harming you or making threats. Violating such an order could result in a fine or even jail. The California Department of Fair Employment and Housing, your city attorney, the county district attorney or the California Attorney General's Office can ask a court for a restraining order. None of these offices or officials charge a fee for this assistance. Your lawyer can also ask the court for a restraining order, but you may have to pay a fee for the lawyer's work. The Department of Fair Employment and Housing and private attorneys may be able to move more quickly than others in getting a restraining order. According to the law, private attorneys have more opportunities than the department to obtain a restraining order. 5. What happens to the person who harmed me? If there is enough evidence of a hate crime, the county district attorney may prosecute your alleged attacker. This means that the accused will face criminal charges in court. You will probably be asked to be a witness during the trial. If convicted of a hate crime, your attacker could face jail, a fine of up to $5,000 or both. Suppose, however, that a person commits a crime that is motivated by hate but does not fall within the definition of a hate crime (see #1). That the crime was committed because of hate is what is important. In such a case, the offender could receive a longer sentence, be sent to prison, be ordered to pay a fine of up to $10,000 or all three. The same is true if the crime is a second offense. If the crime is a felony and is committed out of hate, the court may order a longer prison sentence, up to four years. Or, the judge may order restitution. This means that the convicted person must pay you back for your actual damages or losses. For example, perhaps you were injured and lost wages as a direct result of the crime. You may have medical bills because of your injury. Perhaps you had to repaint a fence because someone wrote racist names on it. The convicted person is responsible for such expenses. 6. Can I sue the person who harmed me? Yes. You can sue whether or not the district attorney or other official prosecutes the accused person. You can hire a lawyer in order to sue the person who harmed you. You may be charged for the lawyer's services. If you win your suit, however, the judge may make the person you sued pay your lawyer's fees and expenses. Or, you can file a complaint with the California Department of Fair Employment and Housing. You can do this on your own; you do not need a lawyer. Based on the evidence, the department may then decide to file an administrative action. This means that the accused person is taken to a hearing before the Fair Employment and Housing Commission. You will not have to pay the costs of the hearing because it is brought in the name of the State of California. However, the department cannot proceed in all instances. In any case, do not delay. The time limit for filing a complaint with the Department of Fair Employment and Housing is one year from the date of injury. Depending on the circumstances, you have from one to four years to bring a lawsuit in court. 7. What happens to me if I win? If the Department of Fair Employment and Housing files an action and is successful, you could be awarded up to $150,000 from each person that you sue for actual damages, and damages to compensate for the emotional injury you suffered. The person you sued also may have to pay you a civil penalty of up to $25,000. If you hire a lawyer on your own and win a lawsuit, you could be awarded actual and compensatory damages, and a civil penalty of up to $25,000. In addition, in some cases, the court might say that the person you sued must also pay you punitive damages. Such damages are imposed to punish the wrongdoer. The court also may order the wrongdoer to pay your attorney fees and various other costs of the lawsuit. If the wrongdoer is a minor, his or her parents or guardians will be strictly liable. This is true even if the parents were not negligent. If a minor willfully defaces or destroys someone else's property or causes the injury or death of someone, the child's parents or guardian may be held responsible, along with the child. The parents or guardian can be liable for up to $25,000 for each willful act of the child and $25,000 in medical, dental and hospital expenses, in addition to any other liability imposed by law. The child's parents or guardian may also be liable for court costs and attorney fees, and up to $50,000 in damages if the minor defaced property. If the minor caused damage by graffiti, parents are also liable for the costs of removal, repair and/or replacement of the property. In addition, they are liable for up to $10,000 in damages and/or up to $10,000 in rewards for finding that their child was the culprit in the event of injuries or damage occurring on school grounds. The parents or guardian also may face certain liability if the child (under the age of 18) causes someone to be injured or killed with a gun which was obtained with the parent's or guardian's permission or which the parents left in an accessible place. In this case, the child's parent/guardian may be held responsible for up to $30,000 if one person was injured or killed, or for up to $60,000 if two or more people were injured or killed. For all of these measures, the parents insurance company will be liable only for the parents or guardian's conduct (such as their negligent supervision of the child) and only for $10,000. 8. How can I be compensated for my losses as a victim of a hate crime? If you suffered an injury or threat of physical injury as a victim of a hate crime, or are an immediate family member of a qualifying victim, you can apply to the California Victims of Crime program for compensation of your losses. Qualified claimants will be compensated whether or not the perpetrator of the crime was apprehended or convicted. To qualify, you must first report the crime to the appropriate law enforcement agency and cooperate with the investigation and prosecution of the crime. People who participated in the crime, or were involved in events leading up to the crime, are generally not eligible for compensation. A crime victim who receives compensation from the state victims program must reimburse the state for compensation received from other sources, such as medical insurance or restitution. A hate crime victim who was not injured and therefore does not qualify for California Victims of Crime compensation may be eligible to receive emergency assistance from a local Victim-Witness Assistance Center. The Victim-Witness Center or local prosecutor's office can also advise you about criminal restitution, which may be ordered by the judge at the time of sentencing. If you have incurred property loss as the result of a crime, a judge may order direct restitution when the criminal is convicted. Information about the state Victims of Crime program and an application for state compensation may be obtained by writing or calling the California Victim Compensation and Government Claims Board at P.O. Box 3036, Sacramento, CA 95812-3036, 1-800-777-9229. Or, access the board's web site at: http://www.boc.cahwnet.gov/Victims.htm. A listing of local Victim-Witness Assistance Centers can be found at: http://www.boc.cahwnet.gov. 9. How do I locate the city attorney, district attorney or attorney general? Look in the front of your white pages telephone directory under the Government Pages section. Check for the city attorney under the listings for your city or town. The district attorney's office will be listed in the county section. For an online list of all district attorney and city attorney offices, visit the California District Attorney's Association web site at: http://www.cdaa.org/daroster.htm. You can call the California Attorney General's Office toll free at 1-800-952-5225. 10. How do I contact the Department of Fair Employment and Housing? The department can be reached toll free by calling 1-800-884-1684. For housing issues, call 1-800-233-3212. 11. How can I find a lawyer to represent me? If you do not know a lawyer, ask a friend, co-worker, employer or business associate to recommend one. You may want to ask if the lawyer has some experience with cases involving civil rights. Or, call a local State Bar-certified lawyer referral service. Look in the Yellow Pages of your telephone directory at the beginning of the Attorneys listings under Attorney Referral Service. Some of these services can direct you to lawyers with experience in advising and representing people in civil rights matters. For an online list of certified lawyer referral services, visit the State Bar's web site at http://www.calbar.ca.gov. State Bar-certified lawyer referral services seek to find the right lawyer for your particular problem. Most of these services offer half-hour initial consultations for a modest fee (usually $25 to $50). Lawyer referral service fees vary. Don't forget to ask whether there is a fee for the referral or consultation. And if you decide to hire a lawyer, make sure you understand what you will be paying for, how much it will cost and when you will be expected to pay your bill. You may want to talk to several attorneys before you hire one. What if you do not have enough money to pay for legal advice? You may belong to a legal insurance plan that covers the kind of services you need. If your income is very low, you may qualify for free or low-cost legal help. Check the white pages of your telephone directory for a legal services program, such as a legal aid society, in your county. You also could ask your county bar association if its State Bar-certified lawyer
referral service or pro bono program offers free legal advice and representation
in civil rights cases for low-income people, or if it can direct you to a no-cost
legal services organization. For more information, see the State Bar pamphlet How Can I Find and Hire the Right Lawyer? To find out how to obtain a complimentary copy of this pamphlet and other State Bar consumer education pamphlets, call 415-538-2280. Or visit the State Bar's web site www.calbar.ca.gov where you'll find the consumer education pamphlets, as well as information on ordering them. The pamphlets also can be ordered in bulk. The purpose of this pamphlet is to provide general information on the law, which is subject to change. If you have a specific legal problem, you may want to consult a lawyer. The State Bar of California |
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