Last month a Jewish George Washington University student posted a swastika to his fraternity’s bulletin board after returning from a spring break trip to India, where the swastika is considered an ancient good luck symbol.
But is it a hate crime or an obnoxious prank? The matter has generated confusion. And if the incident had occurred at George Mason University in Virginia or the University of Maryland, would the answer be different?
“A hate crime simply occurs when you have a traditional crime like assault or arson or whatever it might be which is motivated by a hatred for somebody based upon a protected characteristic such as race or gender or religion or in some situations sexual orientation or sexual identity, but the underlying thing is there must first be a crime,” said GW public interest law professor John F. Banzhaf III.
What constitutes a hate crime varies by state, and the statutes could be the difference between an ordinary criminal prosecution and the penalty enhancement associated with a hate crime.
According to the Anti-Defamation League, Washington, Maryland, Virginia and Pennsylvania enhance penalties for crimes motivated by prejudice toward someone’s race, color, religion or national origin.
Washington’s statute is the most wide-ranging when it comes to bias-related crimes. It also includes increased penalties for crimes motivated by “the accused’s prejudice based on the actual or perceived race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, homelessness, physical disability, matriculation, or political affiliation of a victim of the subject designated act.”
A conviction on a hate crime charge – a charge that typically is added to others – has the potential to lead to significant consequences at sentencing.
Criminal defense attorney Lonny Bramzon, who represented a client accused of a hate crime in Washington, said that transgender is a protected status under the city’s hate crime law and his client was accused of stabbing a transgender person.
A guilty verdict can bring up to “one-and-a-half times the maximum fine authorized for the designated act” and imprisonment “for not more than one-and-a-half times the maximum term authorized for the designated act,” according to Washington’s laws.
“There were comments made before and after that led the government to believe that it was a bias-motivated crime,” said Bramzon of allegations against his client. “The crime was motivated by this sort of bias or hatred against somebody for who they are whether it be religion or gender identity, in this case it was gender identity.”
His client, who pleaded guilty to the stabbing as a hate crime, was sentenced to 56 months in prison.
But the charges may have been different if the crime had occurred across the Potomac River in Virginia or in Maryland or Pennsylvania, where being transgender is not a protected status under their hate crime laws.
Maryland also includes penalty enhancements if a bias-related crime is committed against a homeless person. The law refers to crimes committed “because of another’s race, color, religious beliefs, sexual orientation, gender, disability, or national origin, or because another is homeless.” The crimes range from vandalism to murder.
“What the Legislature has said is, ‘Look, if you’re committing a crime against someone and you are doing it because you hate them for their gender or whatever is on the list, if the state can prove that, then that’s going be a separate crime that is going to carry more, a separate amount of time,” said Curtis Zeager, assistant state’s attorney for Montgomery County.
“If the underlying crime is a felony, the hate crime itself is going to be a felony, and it’s going to carry 10 years (maximum). If the underlying crime is a misdemeanor, the hate crime is going to be a misdemeanor and it’s going to carry three years. And if it’s a murder, the hate crime charge is going to be 20 years,” he said.
Virginia’s statute “imposes additional penalties if a person intentionally selects the person against whom a simple assault or assault and battery resulting in bodily injury is committed because of his race, religious conviction, color or national origin.”
Assault and battery is a misdemeanor in Virginia punishable by up to 12 months in jail or a $2,500 fine. But if the crime is found to be motivated by hatred of the victim’s race, religion or national origin, then the charge is upped to a felony that is punishable by up to five years in jail.
Virginia also forbids intentionally intimidating a person or group by burning a cross “on the property of another, a highway or public space,” placing a swastika “on any church, synagogue or other building or place used for religious worship, or on any school, educational facility or community center owned or operated by a church or religious body” and displaying a noose on another’s private property without permission or “highway or other public place in a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury.”
Pennsylvania does not have a “‘hate crimes’ statute per se,” said Rebecca D. Spangler, first assistant and chief of staff for the District Attorney of Allegheny County. “Instead, Pennsylvania has the crime of ethnic intimidation.”
The statute makes it a criminal offense “if, with malicious intention toward the race, color, religion or national origin of another individual or group of individuals” a person commits an underlying crime listed in the Pennsylvania Crimes Code such as aggravated assault, simple assault, terroristic threats, arson, criminal mischief or criminal trespass.
“If an individual is charged and convicted of ethnic intimidation, the permissible sentencing range is greater than for the underlying crime,” Spangler said.
For example, simple assault is a misdemeanor and is subject to a maximum of up to two years imprisonment. But when committed as ethnic intimidation, the maximum prison term is up to five years.
Was there an underlying crime that occurred when the swastika was posted on a bulletin board at GW? Bramzon would argue no.
“Posting a swastika is not a hate crime,” said Bramzon. “It can be offensive, distasteful and punishable maybe administratively, but that’s not a crime.”
Senior Writer Suzanne Pollak and Political Reporter Dmitriy Shapiro contributed to this report.
See also: Vandals deface Gaithersburg Synagogue