SB718

Report Title:

Hate Crimes; Civil Action and Damages

Description:

Allows a civil cause of action for damages by a person who suffers a denial of a civil right against a person who denies the civil right; right to be free from violence or intimidation because of race, color, religion, ancestry, national origin, gender, transgender, sexual orientation, age, or disabilty; requires AG to collect hate crime data.

THE SENATE	S.B. NO.	718
TWENTY-FIRST LEGISLATURE, 2001
STATE OF HAWAII

A BILL FOR AN ACT

RELATING TO CIVIL RIGHTS.

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

SECTION 1. Crimes and threats against persons because of their race, color, religion, ancestry, national origin, gender, transgender, sexual orientation, age or disability are a significant and growing problem across the nation. The legislature finds that the State's interest in preventing crimes and threats motivated by bigotry and hate goes beyond its interest in preventing other felonies or misdemeanors, and that the protection of Hawaii's citizens from threats of harm due to bigotry and hate is a compelling state interest.

The legislature further finds that Hawaii is one of twelve states in the nation that does not have laws addressing hate- motivated crimes. Additionally, Hawaii is the only state in the country that does not comply with the federal Hate Crimes Statistics Act that requires states to compile data on hate crimes.

The purpose of this Act is to provide a civil cause of action for any person who is the victim of a hate crime, to punish the perpetrators of hate crimes, and to provide a mechanism to compile, track, and analyze hate crimes data in Hawaii.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"CHAPTER

CIVIL RIGHTS; FREEDOM FROM VIOLENCE OR INTIMIDATION

§ -1 Freedom from violence or intimidation. (a) All persons within the jurisdiction of this State shall have the right to be free from any violence or intimidation by threat of violence committed against their person, their family, or their property because of their race, color, religion, ancestry, national origin, gender, transgender, sexual orientation, age, or disability, because another person perceives them to have one or more of those characteristics.

(b) As used in this chapter, and chapters 706 and 846:

"Hate crime" means any act of intimidation, harassment, physical force, or the threat of physical force directed against any person, their family, or their property, that is predominantly motivated by hostility to their perceived race, color, religion, ancestry, national origin, gender, transgender, sexual orientation, age, or disability.

"Sexual orientation" means heterosexuality, homosexuality, or bisexuality.

"Transgender" refers to persons who identify with, wish to become, or publicly portray themselves as members of the gender opposite to their biological birth assignment.

§ -2 Damages; civil action by person aggrieved; intervention; unlawful practice complaint. (a) A person who denies the right provided by section -1, or aids, incites, or conspires in that denial, shall be liable for the actual damages suffered by any person who is denied that right and, in addition, the following:

(1) An amount to be determined by a jury, or a court sitting without a jury, for exemplary damages;

(2) A civil penalty of $25,000 to be awarded to any person who is denied the right provided for by section -1; and

(3) Attorney's fees as may be determined by the court.

(b) Whenever there is reasonable cause to believe that any person is engaged in conduct of resistance to the full enjoyment of any of the rights secured under this chapter, and that conduct is intended to deny the full exercise of these rights, a person aggrieved by the conduct may bring a civil action in the appropriate court by filing a complaint.

(c) Actions under this section shall be independent of any other remedies or procedures that may be available to any aggrieved person.

(d) Nothing in this section shall be construed to require any construction, alteration, repair, structural or otherwise, or modification of any sort whatsoever to any new or existing establishment, facility, building, improvement, or any other structure.

(e) The remedies available under this section shall be in addition to any other remedies available under existing law.

§ -3 Civil actions for protection of rights; damages, injunctive, and other equitable relief; violations of orders. (a) Any person whose exercise or enjoyment of rights are secured by the Constitution or laws of the United States or by the constitution or laws of this State, and whose rights have been interfered with or attempted to be interfered with, may institute a civil action for damages, including but not limited to, damages under section -2, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights so secured.

(b) Actions under this section shall be independent of any other remedies or procedures that may be available to an aggrieved person pursuant to any other provision of law.

(c) In addition to any damages, injunction, or other equitable relief awarded in an action brought pursuant to subsection (a), the court may award the prevailing plaintiff reasonable attorney's fees.

(d) A violation of an order under this section may be punished by a proceeding for contempt. However, in any proceeding for contempt, if it is determined that the person proceeded against is guilty of the contempt charged, in addition to any other relief, a fine not exceeding $1,000 may be imposed, or the person may be sentenced to a term of imprisonment not to exceed six months, or both.

(e) Speech alone shall not be sufficient to support an action under subsection (a), except upon a showing that the speech itself threatens violence against the specific person; and the person against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against the person or the person's property and that the person threatening violence had the apparent ability to carry out the threat.

(f) No order issued in any proceeding under subsection (a) shall restrict the content of any person's speech. An order restricting the time, place, or manner of any person's speech shall do so only to the extent reasonably necessary to protect the peaceable exercise or enjoyment of constitutional or statutory rights, consistent with the constitutional rights of the person sought to be enjoined."

SECTION 3. Chapter 706, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§706- Probation requirements for the commission of hate crimes. (1) If a defendant is convicted of a crime under chapter 707, 708, or 711 and the court finds that the act was predominantly motivated by the victim's race, color, religion, ancestry, national origin, gender, transgender, sexual orientation, age, or disability, and the court grants probation as an appropriate sentence, then the court shall order the defendant to complete one or all of the following as a condition of probation:

(a) Complete a class or program on racial or ethnic sensitivity, or other similar training in the area of civil rights, or a one-year counseling program developed in cooperation with organizations serving the affected community and intended to reduce the tendency toward violent and anti-social behavior if that class, program, or training is authorized by the court;

(b) Make payments or other compensation to a community- based program or local agency that provides services to victims of hate crimes; and

(c) Reimburse the victim for reasonable costs of counseling and other reasonable expenses that the court finds are the direct result of the defendant's acts.

(2) Any payments or other compensation ordered under this section shall be in addition to restitution payments required under section 706-605, and shall be made only after that restitution is paid in full."

SECTION 4. Chapter 846, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"PART . HATE CRIME REPORTING

§846- Definitions. As used in this part, the following terms have the following meanings:

"Data center" means the criminal justice data center established in section 846-2.

"Hate crime" means any act predominantly motivated by hostility to the victim's perceived race, color, religion, ancestry, national origin, gender, transgender, sexual orientation, age, or disability. The term shall also include, but not be limited to, acts that constitute violations of chapter and section 706- .

"Hate crime data" means information, incident reports, records, and statistics relating to hate crimes, collected by the data center.

"Incident report" means an account of occurrence of a hate crime received or collected by the data center.

"Transgender" refers to persons who identify with, wish to become, or publicly portray themselves as members of the gender opposite to their biological birth assignment.

§846- Collection of hate crime data. The attorney general shall adopt rules pursuant to chapter 91 relative to the collection of hate crime data, which shall include, but not be limited to, the following:

(1) Establishment of a central repository for the collection and analysis of hate crime data and, upon the establishment of the repository, the data center shall be responsible for collecting, analyzing, classifying, and reporting this data, and shall maintain this information in a central repository;

(2) Procedures necessary to ensure effective data-gathering and preservation and protection of confidential information, and the disclosure of information in accordance with this part;

(3) Procedures for the solicitation and acceptance of reports regarding hate crimes which are submitted to the data center; and

(4) Procedures for assessing the credibility and accuracy of reports of hate crime data from law enforcement agencies.

§846- Hate crime data; annual reports. The data center shall summarize and analyze reports of hate crime data which are received by the data center, and shall compile and transmit an annual report of hate crime data to the governor, the attorney general, the department of public safety, the judiciary, and the legislature.

§846- Availability; confidentiality. The data center shall cause any hate crime data collected to be made available for use by any law enforcement agency and shall also be made available to any county and any state agency. Dissemination of this information shall be subject to any confidentiality requirements otherwise imposed by law."

SECTION 5. Section 706-662, Hawaii Revised Statutes, is amended to read as follows:

"§706-662 Criteria for extended terms of imprisonment. A convicted defendant may be subject to an extended term of imprisonment under section 706-661, if the convicted defendant satisfies one or more of the following criteria:

(1) The defendant is a persistent offender whose imprisonment for an extended term is necessary for protection of the public. The court shall not make this finding unless the defendant has previously been convicted of two felonies committed at different times when the defendant was eighteen years of age or older.

(2) The defendant is a professional criminal whose imprisonment for an extended term is necessary for protection of the public. The court shall not make this finding unless:

(a) The circumstances of the crime show that the defendant has knowingly engaged in criminal activity as a major source of livelihood; or

(b) The defendant has substantial income or resources not explained to be derived from a source other than criminal activity.

(3) The defendant is a dangerous person whose imprisonment for an extended term is necessary for protection of the public. The court shall not make this finding unless the defendant has been subjected to a psychiatric or psychological evaluation that documents a significant history of dangerousness to others resulting in criminally violent conduct, and this history makes the defendant a serious danger to others. Nothing in this section precludes the introduction of victim-related data in order to establish dangerousness in accord with the Hawaii rules of evidence.

(4) The defendant is a multiple offender whose criminal actions were so extensive that a sentence of imprisonment for an extended term is necessary for protection of the public. The court shall not make this finding unless:

(a) The defendant is being sentenced for two or more felonies or is already under sentence of imprisonment for felony; or

(b) The maximum terms of imprisonment authorized for each of the defendant's crimes, if made to run consecutively would equal or exceed in length the maximum of the extended term imposed, or would equal or exceed forty years if the extended term imposed is for a class A felony.

(5) The defendant is an offender against the elder, handicapped, or minor under the age of eight whose imprisonment for an extended term is necessary for the protection of the public. The court shall not make this finding unless:

(a) The defendant attempts or commits any of the following crimes: murder, manslaughter, a sexual offense that constitutes a felony under chapter 707, robbery, felonious assault, burglary, or kidnapping; and

(b) The defendant, in the course of committing or attempting to commit the crime, inflicts serious or substantial bodily injury upon a person who is:

(i) Sixty years of age or older;

(ii) Blind, a paraplegic, or a quadriplegic; or

(iii) Eight years of age or younger; and

(6) The defendant is convicted of a crime under chapter 707, 708, or 711 and the court finds that an extended term of imprisonment is necessary for the protection of the public because the act was predominantly motivated by the victim's race, color, religion, ancestry, national origin, gender, transgender, sexual orientation, age, or disability."

SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 7. New statutory material is underscored.

SECTION 8. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________