REPORT TITLE:
Hate crimes


DESCRIPTION:
Establishes a civil cause of action, provides for enhanced
criminal penalties and probation requirements, and provides for a
reporting mechanism to compile, track, and analyze hate crimes
data.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           387
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT
RELATING TO CIVIL RIGHTS.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  The legislature finds that crimes and threats
 
 2 against persons because of their race, color, religion, ancestry,
 
 3 national origin, political affiliation, gender, sexual
 
 4 orientation, age, or disability are a significant and growing
 
 5 problem across the nation.  The legislature finds that the
 
 6 State's interest in preventing crimes and threats motivated by
 
 7 bigotry and bias goes beyond its interest in preventing other
 
 8 felonies or misdemeanors, and that the protection of Hawaii's
 
 9 citizens from threats of harm due to bigotry and bias is a
 
10 compelling state interest. 
 
11      The legislature further finds that Hawaii is one of twelve
 
12 states in the nation that does not have laws addressing bias-
 
13 motivated crimes.  Additionally, Hawaii is the only state in the
 
14 country that does not comply with the federal Hate Crimes
 
15 Statistics Act which requires states to compile data on hate
 
16 crimes.  
 
17      The purpose of this Act is to provide a civil cause of
 
18 action for any person who is the victim of a hate crime, to
 
19 punish the perpetrators of hate crimes, and to provide a
 
20 mechanism to compile, track, and analyze hate crimes data in
 

 
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 1 Hawaii.
 
 2      SECTION 2.  The Hawaii Revised Statutes is amended by adding
 
 3 a new chapter to be appropriately designated and to read as
 
 4 follows:
 
 5                             "CHAPTER
 
 6        CIVIL RIGHTS; FREEDOM FROM VIOLENCE OR INTIMIDATION
 
 7         -1  Freedom from violence or intimidation.(a)  All
 
 8 persons within the jurisdiction of this State shall have the
 
 9 right to be free from any violence or intimidation by threat of
 
10 violence committed against their person, their family, or their
 
11 property because of race, color, religion, ancestry, national
 
12 origin, political affiliation, gender, sexual orientation, age,
 
13 or disability, because another person perceives them to have one
 
14 or more of those characteristics.
 
15      (b)  As used in this section, "sexual orientation" means
 
16 heterosexuality, homosexuality, or bisexuality.
 
17      (c)  As used in this chapter, "hate crimes" means any act of
 
18 intimidation, harassment, physical force, or the threat of
 
19 physical force directed against persons, their family, or their
 
20 property, that is predominantly motivated by hostility to their
 
21 race, color, religion, ancestry, national origin, political
 
22 affiliation, gender, sexual orientation, age, or disability, with
 
23 the intention of causing fear and intimidation.
 

 
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 1         -2  Damages; civil action by person aggrieved;
 
 2 intervention; unlawful practice complaint.(a)  Any person whose
 
 3 exercise or enjoyment of rights are secured by the Constitution
 
 4 or laws of the United States or by the Constitution or laws of
 
 5 this State, and whose rights have been interfered with or
 
 6 attempted to be interfered with or there is reasonable cause to
 
 7 believe that interference may have occurred, may institute a
 
 8 civil action for damages, including but not limited to, damages
 
 9 under this section, injunctive relief, and other appropriate
 
10 equitable relief to protect the peaceable exercise or enjoyment
 
11 of the right or rights so secured.
 
12      (b)  A person who denies the right provided by section   -1,
 
13 or aids, incites, or conspires in that denial, shall be liable
 
14 for the actual damages suffered by any person who is denied that
 
15 right, in addition to, the following:
 
16      (1)  An amount to be determined by a jury, or a court
 
17           sitting without a jury, for exemplary damages;
 
18      (2)  A civil penalty of $25,000 to be awarded to any person
 
19           who is denied the right provided for by section    -1;
 
20           and
 
21      (3)  Attorney's fees as may be determined by the court.
 
22      (c)  Actions and remedies available under this section shall
 
23 be independent of and in addition to any other actions and
 

 
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 1 remedies available under existing law.
 
 2      (d)  Nothing in this section shall be construed to require
 
 3 any construction, alteration, repair, structural or otherwise, or
 
 4 modification of any sort whatsoever to any new or existing
 
 5 establishment, facility, building, improvement, or any other
 
 6 structure.
 
 7      (e)  A violation of an order under this section may be
 
 8 punished by a proceeding for contempt.  However, in any
 
 9 proceeding for contempt, if it is determined that the person
 
10 proceeded against is guilty of the contempt charged, in addition
 
11 to any other relief, a fine not exceeding $1,000 may be imposed,
 
12 or the person may be sentenced to a term of imprisonment not to
 
13 exceed six months, or both.
 
14      (f)  Speech alone shall not be sufficient to support an
 
15 action under subsection (a), except upon a showing that the
 
16 speech itself threatens violence against the specific person; and
 
17 the person against whom the threat is directed reasonably fears
 
18 that, because of the speech, violence will be committed against
 
19 the person or the person's property and that the person
 
20 threatening violence had the apparent ability to carry out the
 
21 threat.
 
22      (g)  No order issued in any proceeding under subsection (a)
 
23 shall restrict the content of any person's speech.  An order
 

 
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 1 restricting the time, place, or manner of any person's speech
 
 2 shall do so only to the extent reasonably necessary to protect
 
 3 the peaceable exercise or enjoyment of constitutional or
 
 4 statutory rights, consistent with the constitutional rights of
 
 5 the person sought to be enjoined."
 
 6      SECTION 3.   Chapter 706, Hawaii Revised Statutes, is
 
 7 amended by adding a new section to be appropriately designated
 
 8 and to read as follows:
 
 9      "706-     Probation requirements for the commission of hate
 
10 crimes.  (1)  If a defendant is convicted of a crime under
 
11 chapter 707, 708, or 711 and the court finds that the act was
 
12 predominantly motivated by the victim's race, color, religion,
 
13 ancestry, national origin, political affiliation, gender, sexual
 
14 orientation, age, or disability, and the court grants probation
 
15 as an appropriate sentence, then the court shall order the
 
16 defendant to complete one or all of the following as a condition
 
17 of probation:
 
18      (a)  Complete a class or program on racial or ethnic
 
19           sensitivity, or other similar training in the area of
 
20           civil rights, or a one-year counseling program
 
21           developed in cooperation with organizations serving the
 
22           affected community and intended to reduce the tendency
 
23           toward violent and anti-social behavior if that class,
 

 
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 1           program, or training is authorized by the court;
 
 2      (b)  Make payments or other compensation to a community-
 
 3           based program or local agency that provides services to
 
 4           victims of hate crimes; and
 
 5      (c)  Reimburse the victim for reasonable costs of counseling
 
 6           and other reasonable expenses that the court finds are
 
 7           the direct result of the defendant's acts.
 
 8      (2)  Any payments or other compensation ordered under this
 
 9 section shall be in addition to restitution payments required
 
10 under section 706-605, and shall be made only after that
 
11 restitution is paid in full."
 
12      SECTION 4.  Section 706-662, Hawaii Revised Statutes, is
 
13 amended to read as follows:
 
14      "706-662  Criteria for extended terms of imprisonment.  A
 
15 convicted defendant may be subject to an extended term of
 
16 imprisonment under section 706-661, if the convicted defendant
 
17 satisfies one or more of the following criteria:
 
18      (1)  The defendant is a persistent offender whose
 
19           imprisonment for an extended term is necessary for
 
20           protection of the public.  The court shall not make
 
21           this finding unless the defendant has previously been
 
22           convicted of two felonies committed at different times
 
23           when the defendant was eighteen years of age or older.
 

 
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 1      (2)  The defendant is a professional criminal whose
 
 2           imprisonment for an extended term is necessary for
 
 3           protection of the public.  The court shall not make
 
 4           this finding unless:
 
 5           (a)  The circumstances of the crime show that the
 
 6                defendant has knowingly engaged in criminal
 
 7                activity as a major source of livelihood; or
 
 8           (b)  The defendant has substantial income or resources
 
 9                not explained to be derived from a source other
 
10                than criminal activity.
 
11      (3)  The defendant is a dangerous person whose imprisonment
 
12           for an extended term is necessary for protection of the
 
13           public.  The court shall not make this finding unless
 
14           the defendant has been subjected to a psychiatric or
 
15           psychological evaluation that documents a significant
 
16           history of dangerousness to others resulting in
 
17           criminally violent conduct, and this history makes the
 
18           defendant a serious danger to others.  Nothing in this
 
19           section precludes the introduction of victim-related
 
20           data in order to establish dangerousness in accord with
 
21           the Hawaii rules of evidence.
 
22      (4)  The defendant is a multiple offender whose criminal
 
23           actions were so extensive that a sentence of
 

 
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 1           imprisonment for an extended term is necessary for
 
 2           protection of the public.  The court shall not make
 
 3           this finding unless:
 
 4           (a)  The defendant is being sentenced for two or more
 
 5                felonies or is already under sentence of
 
 6                imprisonment for felony; or
 
 7           (b)  The maximum terms of imprisonment authorized for
 
 8                each of the defendant's crimes, if made to run
 
 9                consecutively would equal or exceed in length the
 
10                maximum of the extended term imposed, or would
 
11                equal or exceed forty years if the extended term
 
12                imposed is for a class A felony.
 
13      (5)  The defendant is an offender against the elder,
 
14           handicapped, or minor under the age of eight whose
 
15           imprisonment for an extended term is necessary for the
 
16           protection of the public.  The court shall not make
 
17           this finding unless:
 
18           (a)  The defendant attempts or commits any of the
 
19                following crimes:  murder, manslaughter, a sexual
 
20                offense that constitutes a felony under chapter
 
21                707, robbery, felonious assault, burglary, or
 
22                kidnapping; and
 
23           (b)  The defendant, in the course of committing or
 

 
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 1                attempting to commit the crime, inflicts serious
 
 2                or substantial bodily injury upon a person who is:
 
 3                (i)  Sixty years of age or older;
 
 4               (ii)  Blind, a paraplegic, or a quadriplegic; or
 
 5              (iii)  Eight years of age or younger; and
 
 6           (c)  Such disability is known or reasonably should be
 
 7                known to the defendant.
 
 8      (6)  The defendant is convicted of a crime under chapter
 
 9           707, 708, or 711 and the court finds that an extended
 
10           term of imprisonment is necessary for the protection of
 
11           the public because the act was predominantly
 
12           motivated, by the victim's race, color, religion,
 
13           ancestry, national origin, political affiliation,
 
14           gender, sexual orientation, age, or disability."
 
15      SECTION 5.  Chapter 846, Hawaii Revised Statutes, is amended
 
16 by adding a new part to be appropriately designated and to read
 
17 as follows:
 
18                  "PART  .  HATE CRIME REPORTING
 
19      846-    Definitions.  As used in this part:
 
20      "Data center" means the criminal justice data center
 
21 established in section 846-2.
 
22      "Hate crime" means any criminal act involving actions
 
23 motivated by a perpetrator's real or perceived belief of the
 

 
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 1 victim's affiliation with a race, color, religion, ancestry,
 
 2 national origin, political affiliation, gender, sexual
 
 3 orientation, age, or disability.  The term shall also include,
 
 4 but not be limited to, acts that constitute violations of
 
 5 chapter      or section 706-662.
 
 6      "Hate crime data" means information, incident reports,
 
 7 records, and statistics relating to hate crimes, collected by the
 
 8 data center.
 
 9      "Incident report" means an account of occurrence of a hate
 
10 crime received or collected by the data center.
 
11      846-  Collection of hate crime data.  The attorney
 
12 general shall adopt rules pursuant to chapter 91 relative to the
 
13 collection of hate crime data, which shall include, but not be
 
14 limited to, the following:
 
15      (1)  Establishment of a central repository for the
 
16           collection and analysis of hate crime data and, upon
 
17           the establishment of the repository, the data center
 
18           shall be responsible for collecting, analyzing,
 
19           classifying, and reporting this data, and shall
 
20           maintain this information in a central repository;
 
21      (2)  Procedures necessary to ensure effective data-gathering
 
22           and preservation and protection of confidential
 
23           information, and the disclosure of information in
 

 
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 1           accordance with this part;
 
 2      (3)  Procedures for the solicitation and acceptance of
 
 3           reports regarding hate crimes which are submitted to
 
 4           the data center; and
 
 5      (4)  Procedures for assessing the credibility and accuracy
 
 6           of reports of hate crime data from law enforcement
 
 7           agencies.
 
 8      846-  Hate crime data; annual reports.  The data center
 
 9 shall summarize and analyze reports of hate crime data which are
 
10 received by the data center, and shall compile and transmit an
 
11 annual report of hate crime data to the governor, the attorney
 
12 general, the department of public safety, the judiciary, and the
 
13 legislature. 
 
14      846-  Availability; confidentiality.  The data center
 
15 shall cause any hate crime data collected to be made available
 
16 for use by any law enforcement agency and shall also be made
 
17 available to any county and any state agency.  Dissemination of
 
18 this information shall be subject to any confidentiality
 
19 requirements otherwise imposed by law."
 
20      SECTION 6.  This Act does not affect rights and duties that
 
21 matured, penalties that were incurred, and proceedings that were
 
22 begun, before its effective date.
 
23      SECTION 7.  New statutory material is underscored.
 

 
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 1      SECTION 8.  This Act shall take effect upon its approval.
 
 2 
 
 3                           INTRODUCED BY:  _______________________