Hate crimes

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

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

                   A  BILL  FOR  AN  ACT


 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
 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.
 3                           INTRODUCED BY:  _______________________