By Logan C. Stone
The Department of Justice instituted prosecution of federal hate crimes with the enactment of the Civil Rights Act of 1968. Although crime laws vary across jurisdictions, most states have passed crime statutes allowing for enhanced penalties for crimes motivated by bias or prejudice.
Until June 2020, Georgia was one of only four states without any such "hate crime" statute. However, in the wake of the controversial deaths of Georgia citizens Ahmaud Arbery and Rayshard Brooks, the Georgia legislature in a bipartisan push, drafted House Bill 426 (the "Bill"). The Bill was approved 127-38 by the Georgia House and 47-6 by the Georgia Senate. On June 26, 2020, Governor Kemp signed the Bill into law, and it became effective July 1, 2020. The Bill leaves only the states of Arkansas, South Carolina, and Wyoming without an enacted hate crimes statute.
The Bill is not Georgia's first attempt at providing increased sentencing guidelines for bias-motivated crimes. In 2004, the Supreme Court of Georgia in Botts v. State unanimously struck down a four-year-old statute reasoning that the statute was unconstitutionally vague such that a sports fan could be prosecuted for uttering threats at a victim wearing an opposing team's garb. See Botts v. State, 604 S.E.2d 512 (2004).
The Bill enumerates enhanced criminal sentencing guidelines for anyone who intentionally selects victim(s) because of the victim's actual or perceived race, color, gender, sexual orientation, religion, national origin, mental disability, or physical disability. Moreover, a person found guilty of committing a misdemeanor motivated by one of these criteria would face an additional six to twelve months of incarceration and a fine up to $5,000.00. See generally O.C.G.A. § 17-10-17(b)-(c). However, if the hate crime is a felony, the defendant would face imprisonment of at least two years.
Lastly, the Bill requires law enforcement officers to complete a "Bias Crime Report" when investigating any alleged hate crimes – regardless of whether an arrest is made. The report shall include: (1) Names of the parties; (2) Relationship of the parties; (3) Sex and gender of the parties; (4) Race of the parties; (5) Religion of the parties; (6) Birthdates of the parties; (7) Time, place, and date of the incident; (8) Whether there is evidence to indicate that the incident occurred because of a person's actual or perceived attributes; (9) Type and extent of the alleged violation; (10) Existence of any objects or symbols associated with the terrorizing of persons based upon actual or perceived race, religion, or sex; (11) Number and types of weapons involved, if any; (12) Existence of any prior difficulties between the parties; (13) Type of police action taken in disposition of case; (14) Whether the victim was apprised of available remedies and services; and (15) Any other information the officer deems pertinent. See generally O.C.G.A. § 17-4-20.2.
Although the Bill is included in Georgia's criminal procedure code section, employers should consider the potential effect of the Bill on their businesses. Moreover, while the Bill does not explicitly address workplace discrimination or harassment, employers should contemplate revising or updating their anti-discrimination or anti-harassment policies and procedures to safeguard against potential liability. Given the broad applicability of the Bill, it is feasible that a civil suit could implicate criminal charges. However, a carefully drafted policy manual could minimize exposure.
For additional information on federal hate crime laws, please visit: https://www.justice.gov/hatecrimes/laws-and-policies.
Logan C. Stone is an associate attorney with Flint, Connolly & Walker, LLP currently representing clients on various civil matters and associated litigation. The attorneys at Flint, Connolly & Walker, LLP have the experience and knowledge to protect your interests whether in an adverse or transactional setting.