Is it hate crime if you have incorrectly judged your victim?

[Wee_Bairn]

Inspired by a recent pit thread. John Doe hates gays and thinks Richard Roe is one, and proceeds to give him an unprovoked beating while screaming gay epithtets at him. Richard Roe, a bit effete, is quite the ladykiller, and is not gay, bisexual or anything of the sort. Is this a hate crime? Or if you attack a black or Jew while spewing racial comments, but the person is not black or Jewish? What if the person is a small fraction black or Jewish?

[Duckster]

IANAL.

WAG. It all comes down to motive. It matters not if the victim of a hate crime truly is a member of an identified (hated) group. The perpetrator is exacting the violence against someone based on the motivation within themself and not the victim.

As long as John Doe believes Richard Roe is gay and commits a violent act against him, Doe’s motive and subsequent action make it a hate crime, regardless of whether Roe is gay or not.

[Cheesesteak]

Conceptually, the reason behind having certain crimes labeled as “hate crimes” is that the crime affects people beyond the victim.

I beat up a guy because I want his wallet. Everyone has a wallet, or money of some kind, so there is no group in particular singled out, no reason for people to fear.

I beat up a guy because I hate gays. Gay people now know that they may be singled out for a beating just for walking around. The attack has the ability to terrorize that segment of the population in ways a random attack doesn’t.

If John Doe beat someone up because he thought incorrectly that he was gay, there’s still reason for gay men to fear, so I’d say it fits the concept of a hate crime.

Legally, it could be muddier. I skimmed this PDF from the DOJ (it looks pretty interesting) and there were two different definitions for hate crime. One from the executive summary, one from the body of the paper.

For the purposes of this monograph, hate crimes, or bias-motivated crimes, are defined as offenses motivated by hatred against a victim based on his or her race, religion, sexual orientation, handicap, ethnicity, or national origin.

This states that the motivation is based on the victim’s race, religion, etc.

The Hate Crime Statistics Act of 1990 (see Chapter 1) defines hate crimes as “crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity, including where appropriate the crimes of murder, non-negligent manslaughter, forcible rape, aggravated assault, simple assault, intimidation, arson, and destruction, damage or vandalism of property.”

This second definition does not mention the victim, but just that the crime itself is prejudicial

If the law in your state uses the first definition, Doe may be able to argue that he didn’t attack the person based on their sexual orientation, since he had it wrong. If the law uses the second definition, Doe wouldn’t have that argument.