Virginia Hate Crimes

The term "hate crime" has been in wide circulation lately due to recent national events. The Virginia criminal code does not include the term "hate crime", but the concept is present in several areas of the code, and bears consideration by any criminal defense attorney when considering how to approach certain cases.

The most common area where Virginia criminal law addresses the issue of a "hate crime" is in the assault code under Section 18.2-57. Simple assault is a Class 1 misdemeanor carrying the possibility of up to one year in jail, but does not carry any mandatory period of incarceration. Judges can, and often do, suspend the execution of the entire sentence in assault cases. However, under Section 18.2-57(B), where a defendant chooses the victim of an assault based upon "his race, religious conviction, color or national origin", the crime is elevated to a Class 6 felony, carrying up to 5 years in prison, and a mandatory minimum term of 30 days in custody, which cannot be suspended by the judge. This is a serious difference, not just in prison time, but in the substantial loss of privilege and status that flows from felony conviction.

Other code sections prohibit specific conduct that might be considered as threatening behavior based upon ones race, religious conviction, color or national origin. Among these are Code Section 18.2-423, which makes burning a cross on the property of another or in a public place a Class 6 felony; Code Section 18.2-423.1, which makes placing a swastika on a church, synagogue, or school a Class 6 felony; and 18.2-423.2, which makes placing a noose on private property or the property of another for purposes of intimidation a Class 6 felony.

These last group of charges are very rarely seen in Virginia, largely because this sort of offensive conduct is very rarely seen. However, from time to time I will see individuals charged with assault as a hate crime, which is a serious crime indeed. There is much that can be done to defend these sorts of cases. First, the Commonwealth must prove that there was an assault at all. But even if they are able to do that, the prosecutor still must prove that the particular victim was selected based upon his membership in one of these protected classes. The mere fact that the victim's race or national origin is different than that of the defendant is not enough.

If you or someone you know has been charged with a "hate crime" in Virginia, contact our office right away. We know how to defend these charges and are eager to do so!