Hate Crime

  • CR28-606.  Hate Crime, 13 V.S.A. § 1455 (12/06/23)

Reporter’s Note

It is not clear whether the legislature intended the hate crime statute to function as a penalty enhancement or a separate crime. As a practical matter, it seems prudent to treat it as a separate crime with a potential lesser-included offense. Bifurcation would probably not be appropriate because evidence that the defendant was motivated by the victim’s “protected category” would, in virtually all cases, be necessarily included in the State’s case-in-chief for the underlying crime.

Under the model instruction, simple assault charged as a hate crime, for example, would be charged as “hate-motivated simple assault,” and the last essential element the State must prove would be the applicable “hate-motivated” factor from 13 V.S.A. § 1455. If supported by the evidence, a charge on the lesser-included offense of simple assault (without the hate-motivating factor) would then follow.

The definition of “motivated” is derived from the American Heritage Dictionary (5th ed. 2017) (online). The original version of the statute required that the defendant’s conduct be “maliciously” motivated. The legislature deleted the “maliciously” requirement in a 2021 revision, and clarified that the conduct can be motivated “in whole or in part” by the victim’s protected category. 2021, No. 34, § 1 (eff. May 18, 2021). The revision also states that the victim’s protected category “need not be the predominant reason or the sole reason for the defendant’s conduct.” Id.

Note that as of the 2021 amendment, the statute speaks in terms of the victim’s “protected category”, 13 V.S.A. § 1455(a), and then defines “protected category” to include several characteristics. Id. § 1455(c). In keeping with plain language, the model instruction does not use the term “protected category” and instead contemplates that courts will refer directly to the applicable characteristics listed in subsection (c) in a case-specific manner.

If the alleged motivating factor is the victim’s disability, the hate crime statute prescribes that the term is as defined at 21 V.S.A. § 495d(5), and that definition is to be used in instructions to the jury. If further explanation of that term is necessary, courts should refer to the additional definitions provided in 21 V.S.A. § 495d(7)–(11).