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.  The bill also provides for a
reporting mechanism to compile, track, and analyze hate crimes
data.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                            289         
HOUSE OF REPRESENTATIVES                H.B. NO.           
TWENTIETH LEGISLATURE, 1999                                
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 does not have laws addressing hate-
 
12 motivated crimes.  Additionally, Hawaii is the only state in the
 
13 country that does 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
 

 
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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
 
 6        CIVIL RIGHTS; FREEDOM FROM VIOLENCE OR INTIMIDATION
 
 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 their race, color, religion, ancestry,
 
12 national origin, gender, transgender, sexual orientation, age, or
 
13 disability, because another person perceives them to have one or
 
14 more of those characteristics.
 
15      (b)  As used in this chapter, chapter 706 and chapter 846:
 
16      "Hate crime" means any act of intimidation, harassment,
 
17 physical force, or the threat of physical force directed against
 
18 any person, their family, or their property, that is
 
19 predominantly motivated by hostility to their perceived race,
 
20 color, religion, ancestry, national origin, gender, transgender,
 
21 sexual orientation, age, or disability.
 
22      "Sexual orientation" means heterosexuality, homosexuality,
 

 
 
 
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 1 or bisexuality.
 
 2      "Transgender" refers to persons who identify with, wish to
 
 3 become, or publicly portray themselves as members of the gender
 
 4 opposite to their biological birth assignment.
 
 5         -2  Damages; civil action by person aggrieved;
 
 6 intervention; unlawful practice complaint.(a)  A person who
 
 7 denies the right provided by section    -1, or aids, incites, or
 
 8 conspires in that denial, shall be liable for the actual damages
 
 9 suffered by any person who is denied that right and, in addition,
 
10 the following:
 
11      (1)  An amount to be determined by a jury, or a court
 
12           sitting without a jury, for exemplary damages;
 
13      (2)  A civil penalty of $25,000 to be awarded to any person
 
14           who is denied the right provided for by section    -1;
 
15           and
 
16      (3)  Attorney's fees as may be determined by the court.
 
17      (b)  Whenever there is reasonable cause to believe that any
 
18 person is engaged in conduct of resistance to the full enjoyment
 
19 of any of the rights secured under this chapter, and that conduct
 
20 is intended to deny the full exercise of these rights, a person
 
21 aggrieved by the conduct may bring a civil action in the
 
22 appropriate court by filing a complaint.
 

 
 
 
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 1      (c)  Actions under this section shall be independent of any
 
 2 other remedies or procedures that may be available to any
 
 3 aggrieved person.
 
 4      (d)  Nothing in this section shall be construed to require
 
 5 any construction, alteration, repair, structural or otherwise, or
 
 6 modification of any sort whatsoever to any new or existing
 
 7 establishment, facility, building, improvement, or any other
 
 8 structure.
 
 9      (e)  The remedies available under this section shall be in
 
10 addition to any other remedies available under existing law.
 
11         -3 Civil actions for protection of rights; damages,
 
12 injunctive, and other equitable relief; violations of orders.
 
13 (a)  Any person whose exercise or enjoyment of rights are secured
 
14 by the Constitution or laws of the United States or by the
 
15 constitution or laws of this State, and whose rights have been
 
16 interfered with or attempted to be interfered with, may institute
 
17 a civil action for damages, including but not limited to, damages
 
18 under section    -2, injunctive relief, and other appropriate
 
19 equitable relief to protect the peaceable exercise or enjoyment
 
20 of the right or rights so secured.
 
21      (b)  Actions under this section shall be independent of any
 
22 other remedies or procedures that may be available to an
 

 
 
 
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 1 aggrieved person pursuant to any other provision of law.
 
 2      (c)  In addition to any damages, injunction, or other
 
 3 equitable relief awarded in an action brought pursuant to
 
 4 subsection (a), the court may award the prevailing plaintiff
 
 5 reasonable attorney's fees.
 
 6      (d)  A violation of an order under this section may be
 
 7 punished by a proceeding for contempt.  However, in any
 
 8 proceeding for contempt, if it is determined that the person
 
 9 proceeded against is guilty of the contempt charged, in addition
 
10 to any other relief, a fine not exceeding $1,000 may be imposed,
 
11 or the person may be sentenced to a term of imprisonment not to
 
12 exceed six months, or both.
 
13      (e)  Speech alone shall not be sufficient to support an
 
14 action under subsection (a), except upon a showing that the
 
15 speech itself threatens violence against the specific person; and
 
16 the person against whom the threat is directed reasonably fears
 
17 that, because of the speech, violence will be committed against
 
18 the person or the person's property and that the person
 
19 threatening violence had the apparent ability to carry out the
 
20 threat.
 
21      (g)  No order issued in any proceeding under subsection (a)
 
22 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 amended
 
 7 by adding a new section to be appropriately designated and to
 
 8 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, gender, transgender, 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
 

 
 
 
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 1           toward violent and anti-social behavior if that class,
 
 2           program, or training is authorized by the court;
 
 3      (b)  Make payments or other compensation to a community-
 
 4           based program or local agency that provides services to
 
 5           victims of hate crimes; and
 
 6      (c)  Reimburse the victim for reasonable costs of counseling
 
 7           and other reasonable expenses that the court finds are
 
 8           the direct result of the defendant's acts.
 
 9      (2)  Any payments or other compensation ordered under this
 
10 section shall be in addition to restitution payments required
 
11 under section 706-605, and shall be made only after that
 
12 restitution is paid in full."
 
13      SECTION 4.  Section 706-662, Hawaii Revised Statutes, is
 
14 amended to read as follows:
 
15      "706-662  Criteria for extended terms of imprisonment.  A
 
16 convicted defendant may be subject to an extended term of
 
17 imprisonment under section 706-661, if the convicted defendant
 
18 satisfies one or more of the following criteria:
 
19      (1)  The defendant is a persistent offender whose
 
20           imprisonment for an extended term is necessary for
 
21           protection of the public.  The court shall not make
 
22           this finding unless the defendant has previously been
 

 
 
 
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 1           convicted of two felonies committed at different times
 
 2           when the defendant was eighteen years of age or older.
 
 3      (2)  The defendant is a professional criminal whose
 
 4           imprisonment for an extended term is necessary for
 
 5           protection of the public.  The court shall not make
 
 6           this finding unless:
 
 7           (a)  The circumstances of the crime show that the
 
 8                defendant has knowingly engaged in criminal
 
 9                activity as a major source of livelihood; or
 
10           (b)  The defendant has substantial income or resources
 
11                not explained to be derived from a source other
 
12                than criminal activity.
 
13      (3)  The defendant is a dangerous person whose imprisonment
 
14           for an extended term is necessary for protection of the
 
15           public.  The court shall not make this finding unless
 
16           the defendant has been subjected to a psychiatric or
 
17           psychological evaluation that documents a significant
 
18           history of dangerousness to others resulting in
 
19           criminally violent conduct, and this history makes the
 
20           defendant a serious danger to others.  Nothing in this
 
21           section precludes the introduction of victim-related
 
22           data in order to establish dangerousness in accord with
 

 
 
 
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 1           the Hawaii rules of evidence.
 
 2      (4)  The defendant is a multiple offender whose criminal
 
 3           actions were so extensive that a sentence of
 
 4           imprisonment for an extended term is necessary for
 
 5           protection of the public.  The court shall not make
 
 6           this finding unless:
 
 7           (a)  The defendant is being sentenced for two or more
 
 8                felonies or is already under sentence of
 
 9                imprisonment for felony; or
 
10           (b)  The maximum terms of imprisonment authorized for
 
11                each of the defendant's crimes, if made to run
 
12                consecutively would equal or exceed in length the
 
13                maximum of the extended term imposed, or would
 
14                equal or exceed forty years if the extended term
 
15                imposed is for a class A felony.
 
16      (5)  The defendant is an offender against the elder,
 
17           handicapped, or minor under the age of eight whose
 
18           imprisonment for an extended term is necessary for the
 
19           protection of the public.  The court shall not make
 
20           this finding unless:
 
21           (a)  The defendant attempts or commits any of the
 
22                following crimes:  murder, manslaughter, a sexual
 

 
 
 
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 1                offense that constitutes a felony under chapter
 
 2                707, robbery, felonious assault, burglary, or
 
 3                kidnapping; and
 
 4           (b)  The defendant, in the course of committing or
 
 5                attempting to commit the crime, inflicts serious
 
 6                or substantial bodily injury upon a person who is:
 
 7                (i)  Sixty years of age or older;
 
 8               (ii)  Blind, a paraplegic, or a quadriplegic; or
 
 9              (iii)  Eight years of age or younger; and
 
10           (c)  Such disability is known or reasonably should be
 
11                known to the defendant.
 
12      (6)  The defendant is convicted of a crime under chapter
 
13           707, 708, or 711 and the court finds that an extended
 
14           term of imprisonment is necessary for the protection of
 
15           the public because the act was predominantly motivated
 
16           by the victim's race, color, religion, ancestry,
 
17           national origin, gender, transgender, sexual
 
18           orientation, age, or disability."
 
19      SECTION 5.  Chapter 846, Hawaii Revised Statutes, is amended
 
20 by adding a new part to be appropriately designated and to read
 
21 as follows:
 
22                  "PART  .  HATE CRIME REPORTING
 

 
 
 
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 1      846-    Definitions.  As used in this part, the following
 
 2 terms have the following meanings:
 
 3      "Data center" means the criminal justice data center
 
 4 established in section 846-2.
 
 5      "Hate crime" means any act predominantly motivated by
 
 6 hostility to the victim's perceived race, color, religion,
 
 7 ancestry, national origin, gender, transgender, sexual
 
 8 orientation, age, or disability.  The term shall also include,
 
 9 but not be limited to, acts that constitute violations of chapter
 
10      and section 706-  .
 
11      "Hate crime data" means information, incident reports,
 
12 records, and statistics relating to hate crimes, collected by the
 
13 data center.
 
14      "Incident report" means an account of occurrence of a hate
 
15 crime received or collected by the data center.
 
16      "Transgender" refers to persons who identify with, wish to
 
17 become, or publicly portray themselves as members of the gender
 
18 opposite to their biological birth assignment.
 
19      846-  Collection of hate crime data.  The attorney
 
20 general shall adopt rules pursuant to chapter 91 relative to the
 
21 collection of hate crime data, which shall include, but not be
 
22 limited to, the following:
 

 
 
 
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 1      (1)  Establishment of a central repository for the
 
 2           collection and analysis of hate crime data and, upon
 
 3           the establishment of the repository, the data center
 
 4           shall be responsible for collecting, analyzing,
 
 5           classifying, and reporting this data, and shall
 
 6           maintain this information in a central repository;
 
 7      (2)  Procedures necessary to ensure effective data-gathering
 
 8           and preservation and protection of confidential
 
 9           information, and the disclosure of information in
 
10           accordance with this part;
 
11      (3)  Procedures for the solicitation and acceptance of
 
12           reports regarding hate crimes which are submitted to
 
13           the data center; and
 
14      (4)  Procedures for assessing the credibility and accuracy
 
15           of reports of hate crime data from law enforcement
 
16           agencies.
 
17      846-  Hate crime data; annual reports.  The data center
 
18 shall summarize and analyze reports of hate crime data which are
 
19 received by the data center, and shall compile and transmit an
 
20 annual report of hate crime data to the governor, the attorney
 
21 general, the department of public safety, the judiciary, and the
 
22 legislature. 
 

 
 
 
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 1      846-  Availability; confidentiality.  The data center
 
 2 shall cause any hate crime data collected to be made available
 
 3 for use by any law enforcement agency and shall also be made
 
 4 available to any county and any state agency.  Dissemination of
 
 5 this information shall be subject to any confidentiality
 
 6 requirements otherwise imposed by law."
 
 7      SECTION 6.  This Act does not affect rights and duties that
 
 8 matured, penalties that were incurred, and proceedings that were
 
 9 begun, before its effective date.
 
10      SECTION 7.  Statutory material to be repealed is bracketed.
 
11 New statutory material is underscored.
 
12      SECTION 8.  This Act shall take effect upon its approval.
 
13 
 
14                           INTRODUCED BY:  _______________________