May 8, 2019 A recent report from the Anti-Defamation League confirmed what the FBI said last November. The number of hate crimes in Washington State increased dramatically in 2018. According to a national audit, anti-Semitic incidents in Washington increased 60 percent between 2017 and 2018. Hate crimes are up overall as well. According to the FBI report, race, sexual orientation, and religion were the most common motivating factors. Nationwide, harassment and assaults were both up and vandalism was down. But in Washington, all three categories increased. Membership in extremist hate groups, like neo-Nazis, is also higher today than at any time since 2003, according to the ADL. Hate Crimes in Washington “I find it very interesting that ‘hate’ is not an element of Washington State’s hate crimes law,” opined Bellvue criminal defense attorney Lennard Nahajski. Like most other jurisdictions, Washington’s hate crimes law is very broad. It applies to assault, vandalism, or terroristic threat linked to a “perception of the victim’s race, color, religion, ancestry, national origin, gender, sexual orientation or mental, physical or sensory handicap.” In other words, the law requires prejudice and not hatred. If a mugger targets women because he believes they are weak and unable to resist, hate crime charges apply. The same thing could happen to a burglar who targets Asian homes because he believes these people are rich. Vagueness like this opens the law to misuse. New York, has similar hate crimes law. Prosecutors sometimes enhance misdemeanor fraud charges to felony charges if the alleged victim was an elderly person. The reason? Prosecutors say that’s a hate crime. The defendant intentionally targeted older people because of a perception about their age. (e.g. Elderly people have money and are easy to fool). Fortunately, Washington State’s hate crimes law has some built-in limits. Washington State’s hate crimes law only applies to assault, terroristic threat, and vandalism. Additionally, in hate crimes cases, prosecutors must establish that the defendant acted maliciously and intentionally. That’s a higher-than-normal means reason. Nevertheless, the hate crimes law still comes dangerously close to violating the First Amendment’s guarantee of free speech. That’s especially true in so-called terroristic threat cases. Unless prosecutors can prove the terroristic threat was a credible one, the First Amendment almost certainly applies. Washington State’s hate crimes law also contains a civil penalty provision. So, even if a Bellvue defense attorney “beats” the criminal charges, a defendant could still face a civil lawsuit over the same conduct. The burden of proof in civil court is much lower. Therefore, an adverse result is pretty likely, especially if the defendant does not have experienced counsel.