REPORT TITLE:
Hate Crimes; Civil Action


DESCRIPTION:
Establishes a civil cause of action and enhanced criminal
penalties for hate crimes against persons because of race, color,
religion, ancestry, national origin, gender, transgender, sexual
orientation, age or disability; provides a reporting mechanism to
compile, track, and analyze hate crimes data.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
THE SENATE                              S.B. NO.           605
TWENTIETH LEGISLATURE, 1999                                S.D. 1
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.  Crimes and threats against persons because of
 
 2 their race, color, religion, ancestry, national origin, gender,
 
 3 transgender, sexual orientation, age or disability are a
 
 4 significant and growing problem across the nation.  The
 
 5 legislature finds that the State's interest in preventing crimes
 
 6 and threats motivated by bigotry and hate goes beyond its
 
 7 interest in preventing other felonies or misdemeanors, and that
 
 8 the protection of Hawaii's citizens from threats of harm due to
 
 9 bigotry and hate is a compelling state interest.
 
10      The legislature further finds that Hawaii is one of twelve
 
11 states in the nation that do not have laws addressing hate-
 
12 motivated crimes.  Additionally, Hawaii is one of two states in
 
13 the country that do not comply with the federal Hate Crimes
 
14 Statistics Act which requires states to compile data on hate
 
15 crimes.
 
16      The purpose of this Act is to provide a civil cause of
 
17 action for any person who is the victim of a hate crime, to
 
18 punish the perpetrators of hate crimes, and to provide a
 
19 mechanism to compile, track, and analyze hate crimes data in
 
20 Hawaii.
 

 
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 1      SECTION 2.  The Hawaii Revised Statutes is amended by adding
 
 2 a new chapter to be appropriately designated and to read as
 
 3 follows:
 
 4                             "CHAPTER
 
 5        CIVIL RIGHTS; FREEDOM FROM VIOLENCE OR INTIMIDATION
 
 6         -1  Freedom from violence or intimidation.(a)  All
 
 7 persons within the jurisdiction of this State shall have the
 
 8 right to be free from hate or bias motivated acts of violence or
 
 9 threats against them, their families, or their property.
 
10      (b)  As used in this chapter:
 
11      "Hate or bias motivated act" means any act of violence,
 
12 physical force, intimidation, or harassment, or any threat of
 
13 violence or physical force, directed against any person, the
 
14 person's family, or the person's property, that is predominately
 
15 motivated by hostility to the person's perceived race, color,
 
16 religion, ancestry, national origin, gender, transgender, sexual
 
17 orientation, age, or disability.
 
18      "Sexual orientation" means heterosexuality, homosexuality,
 
19 or bisexuality.
 
20      "Transgender" refers to persons who identify with, wish to
 
21 become, or publicly portray themselves as members of the gender
 
22 opposite to their biological birth assignment.
 
23         -2  Damages; civil action by person aggrieved.(a)  If
 

 
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 1 a person commits hate or bias motivated acts or aids, incites, or
 
 2 conspires with another person to commit hate or bias motivated
 
 3 acts, any person aggrieved by those hate or bias motivated acts
 
 4 or the conspiracy to commit such acts may sue for damages and
 
 5 injunctive relief.
 
 6      (b)  In a civil action brought under this section, a court
 
 7 may award as damages to a person aggrieved by the hate or bias
 
 8 motivated acts:
 
 9      (1)  The actual damages suffered by the person;
 
10      (2)  Exemplary damages; and
 
11      (3)  Attorney's fees.
 
12      (c)  Nothing in this section shall be construed to require
 
13 any construction, alteration, repair, structural or otherwise, or
 
14 modification of any sort whatsoever to any new or existing
 
15 establishment, facility, building, improvement, or any other
 
16 structure.
 
17      (d)  Speech alone shall not be sufficient to support an
 
18 action under subsection (a).
 
19      (e)  No injunction issued under subsection (a) shall
 
20 restrict the content of any person's speech.  An order
 
21 restricting the time, place, or manner of any person's speech
 
22 shall do so only to the extent reasonably necessary to protect
 
23 the peaceable exercise or enjoyment of constitutional or
 

 
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 1 statutory rights, consistent with the constitutional rights of
 
 2 the person sought to be enjoined.
 
 3      (d)  The remedies available under this section shall be in
 
 4 addition to any other remedies available under existing law."
 
 5      SECTION 3.  Section 706-662, Hawaii Revised Statutes, is
 
 6 amended to read as follows:
 
 7      "706-662  Criteria for extended terms of imprisonment.  A
 
 8 convicted defendant may be subject to an extended term of
 
 9 imprisonment under section 706-661, if the convicted defendant
 
10 satisfies one or more of the following criteria:
 
11      (1)  The defendant is a persistent offender whose
 
12           imprisonment for an extended term is necessary for
 
13           protection of the public.  The court shall not make
 
14           this finding unless the defendant has previously been
 
15           convicted of two felonies committed at different times
 
16           when the defendant was eighteen years of age or older.
 
17      (2)  The defendant is a professional criminal whose
 
18           imprisonment for an extended term is necessary for
 
19           protection of the public.  The court shall not make
 
20           this finding unless:
 
21           (a)  The circumstances of the crime show that the
 
22                defendant has knowingly engaged in criminal
 
23                activity as a major source of livelihood; or
 

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

 
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 1                each of the defendant's crimes, if made to run
 
 2                consecutively would equal or exceed in length the
 
 3                maximum of the extended term imposed, or would
 
 4                equal or exceed forty years if the extended term
 
 5                imposed is for a class A felony.
 
 6      (5)  The defendant is an offender against the [elder,]
 
 7           elderly, handicapped, or a minor under the age of
 
 8           eight, whose imprisonment for an extended term is
 
 9           necessary for the protection of the public.  The court
 
10           shall not make this finding unless:
 
11           (a)  The defendant attempts or commits any of the
 
12                following crimes:  murder, manslaughter, a sexual
 
13                offense that constitutes a felony under chapter
 
14                707, robbery, felonious assault, burglary, or
 
15                kidnapping; and
 
16           (b)  The defendant, in the course of committing or
 
17                attempting to commit the crime, inflicts serious
 
18                or substantial bodily injury upon a person who is:
 
19                (i)  Sixty years of age or older;
 
20               (ii)  Blind, a paraplegic, or a quadriplegic; or
 
21              (iii)  Eight years of age or younger; and
 
22           (c)  Such disability is known or reasonably should be
 
23                known to the defendant.
 

 
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 1      (6)  The defendant is a hate crime offender whose
 
 2           imprisonment for an extended term is necessary for the
 
 3           protection of the public.  The court shall not make
 
 4           this finding unless:
 
 5           (a)  The defendant is convicted of a crime under
 
 6                chapter 707, 708, or 711; and
 
 7           (b)  The crime was predominately motivated by the
 
 8                victim's perceived race, color, religion,
 
 9                ancestry, national origin, gender, transgender,
 
10                sexual orientation, age, or disability."
 
11      SECTION 4.  Chapter 846, Hawaii Revised Statutes, is amended
 
12 by adding a new part to be appropriately designated and to read
 
13 as follows:
 
14                  "PART  .  HATE CRIME REPORTING
 
15      846-    Definitions.  As used in this part, the following
 
16 terms have the following meanings:
 
17      "Hate crime" means any criminal act motivated, in any
 
18 degree, by a perpetrator's hostility towards the victim's
 
19 perceived race, color, religion, ancestry, national origin,
 
20 gender, transgender, sexual orientation, age, or disability.
 
21      "Hate crime data" means information, incident reports,
 
22 records, and statistics relating to hate crimes, collected by the
 
23 data center.
 

 
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 1      "Incident report" means an account of occurrence of a hate
 
 2 crime received or collected by the data center.
 
 3      "Sexual orientation" means:
 
 4      (1)  Having a preference for heterosexuality, homosexuality,
 
 5           or bisexuality;
 
 6      (2)  Having a history of any one or more of these
 
 7           preferences; or
 
 8      (3)  Being identified with any one or more of these
 
 9           preferences.
 
10      "Transgender" refers to persons who identify with, wish to
 
11 become, or publicly portray themselves as members of the gender
 
12 opposite to their biological birth assignment.
 
13      846-   Responsibility for system.  (a)  The department of
 
14 the attorney general shall be responsible for the collection,
 
15 storage, dissemination, and analysis of all hate crime data from
 
16 all agencies that have primary investigative, action, or program
 
17 responsibility for adult or juvenile offenses, including the
 
18 county police departments, the county prosecutors, the family
 
19 courts, and the departments or agencies responsible for
 
20 administering any correctional facilities.
 
21      (b)  The attorney general shall develop the system and the
 
22 procedures for reporting, inputting, accessing, and protecting
 
23 the information concerning the commission of hate crimes and
 

 
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 1 obtaining the agreement of agencies permitted to directly input
 
 2 and access information.
 
 3      846- Responsibility of agencies.  Agencies that have
 
 4 investigative, detention, custodial, adjudicative, or program
 
 5 responsibility for adult or juvenile offenses shall cooperate
 
 6 with the attorney general in establishing the hate crime
 
 7 reporting system by:
 
 8      (1)  Providing information in the agency files that can be
 
 9           included pursuant to the format approved by the
 
10           attorney general;
 
11      (2)  Maintaining procedures internally consistent with
 
12           uniform procedures and guidelines provided by the
 
13           attorney general;
 
14      (3)  Reporting information to the attorney general that is
 
15           timely, complete, and accurate after the occurrence of
 
16           an event over which the agency had direct
 
17           responsibility; and
 
18      (4)  Maintaining procedures for the periodic checking of
 
19           information to minimize the possibility of storing and
 
20           maintaining inaccurate information.
 
21      846-  Annual reports.  The attorney general shall
 
22 summarize and analyze reports of hate crimes data that are
 
23 received, and shall compile and transmit an annual report of hate
 

 
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 1 crime data to the governor, the judiciary, the department of
 
 2 public safety, and the legislature."
 
 3      SECTION 5.  This Act does not affect rights and duties that
 
 4 matured, penalties that were incurred, and proceedings that were
 
 5 begun, before its effective date.
 
 6      SECTION 6.  Statutory material to be repealed is bracketed.
 
 7 New statutory material is underscored.
 
 8      SECTION 7.  This Act shall take effect upon its approval.