AN ACT Relating to malicious harassment;
amending RCW 9A.36.080; adding new sections to chapter 9A.36 RCW; adding a new
section to chapter 36.28A RCW; adding a new section to chapter 43.101 RCW;
creating a new section; and prescribing penalties.
BE
IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1. A
new section is added to chapter 9A.36 RCW to read as follows:
The legislature finds that crimes and threats
against persons because of their race, color, religion, ancestry, national
origin, gender, sexual orientation, or mental, physical, or sensory handicaps
are serious and increasing. The legislature also finds that crimes and threats
are often directed against interracial couples and their children or couples of
mixed religions, colors, ancestries, or national origins because of bias and
bigotry against the race, color, religion, ancestry, or national origin of one
person in the couple or family. The legislature finds that the state interest
in preventing crimes and threats motivated by bigotry and bias goes beyond the
state interest in preventing other felonies or misdemeanors such as criminal
trespass, malicious mischief, assault, or other crimes that are not motivated
by hatred, bigotry, and bias, and that prosecution of those other crimes
inadequately protects citizens from crimes and threats motivated by bigotry and
bias. Therefore, the legislature finds that protection of those citizens from
threats of harm due to bias and bigotry is a compelling state interest.
The legislature also finds that in many cases,
certain discrete words or symbols are used to threaten the victims. Those
discrete words or symbols have historically or traditionally been used to
connote hatred or threats towards members of the class of which the victim or a
member of the victim's family or household is a member. In particular, the
legislature finds that cross burnings historically and traditionally have been
used to threaten, terrorize, intimidate, and harass African Americans and their
families. Cross burnings often preceded lynchings, murders, burning of homes,
and other acts of terror. Further, Nazi swastikas historically and traditionally
have been used to threaten, terrorize, intimidate, and harass Jewish people and
their families. Swastikas symbolize the massive destruction of the Jewish
population, commonly known as the holocaust. Therefore, the legislature finds
that any person who burns or attempts to burn a cross or displays a swastika on
the property of the victim or burns a cross or displays a swastika as part of a
series of acts directed towards a particular person, the person's family or
household members, or a particular group, knows or reasonably should know that
the cross burning or swastika may create a reasonable fear of harm in the mind
of the person, the person's family and household members, or the group.
The legislature also finds that a hate crime
committed against a victim because of the victim's gender may be identified in
the same manner that a hate crime committed against a victim of another
protected group is identified. Affirmative indications of hatred towards
gender as a class is the predominant factor to consider. Other factors to
consider include the perpetrator's use of language, slurs, or symbols
expressing hatred towards the victim's gender as a class; the severity of the
attack including mutilation of the victim's sexual organs; a history of similar
attacks against victims of the same gender by the perpetrator or a history of
similar incidents in the same area; a lack of provocation; an absence of any
other apparent motivation; and common sense.
Sec. 2.
RCW 9A.36.080 and 1989 c 95 s 1 are each amended to read as follows:
(1) A person is guilty of malicious harassment
if he or she maliciously and ((with the intent to intimidate or
harass another person because of, or in a way that is reasonably related to,
associated with, or directed toward, that person's)) intentionally
commits one of the following acts because of his or her perception of the
victim's race, color, religion, ancestry, national origin, gender,
sexual orientation, or mental, physical, or sensory handicap:
(a) Causes physical injury to the victim or
another person; ((or))
(b) ((By words or conduct places another
person in reasonable fear of harm to his person or property or harm to the
person or property of a third person. Such words or conduct include, but are
not limited to, (i) cross burning, (ii) painting, drawing, or depicting symbols
or words on the property of the victim when the symbols or words historically
or traditionally connote hatred or threats toward the victim, or (iii) written
or oral communication designed to intimidate or harass because of, or in a way
that is reasonably related to, associated with, or directed toward, that
person's race, color, religion, ancestry, national origin, or mental, physical,
or sensory handicap. However, it does not constitute malicious harassment for
a person to speak or act in a critical, insulting, or deprecatory way unless
the context or circumstances surrounding the words or conduct places another
person in reasonable fear of harm to his or her person or property or harm to
the person or property of a third person; or
(c)))
Causes physical damage to or destruction of the property of the victim or
another person; or
(c) Threatens a specific person or group of
persons and places that person, or members of the specific group of persons, in
reasonable fear of harm to person or property. The fear must be a fear that a
reasonable person would have under all the circumstances. For purposes of this
section, a "reasonable person" is a reasonable person who is a member
of the victim's race, color, religion, ancestry, national origin, gender, or
sexual orientation, or who has the same mental, physical, or sensory handicap
as the victim. Words alone do not constitute malicious harassment unless the
context or circumstances surrounding the words indicate the words are a
threat. Threatening words do not constitute malicious harassment if it is
apparent to the victim that the person does not have the ability to carry out
the threat.
(2) ((The following constitute per se
violations of this section:
(a) Cross burning; or
(b) Defacement of the property of the victim or
a third person with symbols or words when the symbols or words historically or
traditionally connote hatred or threats toward the victim.
(3))) In
any prosecution for malicious harassment, unless evidence exists which explains
to the trier of fact's satisfaction that the person did not intend to threaten
the victim or victims, the trier of fact may infer that the person intended to
threaten a specific victim or group of victims because of the person's
perception of the victim's or victims' race, color, religion, ancestry,
national origin, gender, sexual orientation, or mental, physical, or sensory
handicap if the person commits one of the following acts:
(a) Burns a cross on property of a victim
who is or whom the actor perceives to be of African American heritage; or
(b) Defaces property of a victim who is or
whom the actor perceives to be of Jewish heritage by defacing the property with
a swastika.
This subsection only applies to the creation
of a reasonable inference for evidentiary purposes. This subsection does not
restrict the state's ability to prosecute a person under subsection (1) of this
section when the facts of a particular case do not fall within (a) or (b) of
this subsection.
(3) It is not a defense that the accused was
mistaken that the victim was a member of a certain race, color, religion,
ancestry, national origin, gender, or sexual orientation, or had a mental,
physical, or sensory handicap.
(4) Evidence of expressions or associations
of the accused may not be introduced as substantive evidence at trial unless
the evidence specifically relates to the crime charged. Nothing in this
chapter shall affect the rules of evidence governing impeachment of a witness.
(5) Every person who commits another crime
during the commission of a crime under this section may be punished and
prosecuted for the other crime separately.
(6) "Sexual orientation" for the
purposes of this section means heterosexuality, homosexuality, or bisexuality.
(7) Malicious harassment is a class C
felony.
(((4) In addition to the criminal penalty
provided in subsection (3) of this section, there is hereby created a civil
cause of action for malicious harassment. A person may be liable to the victim
of malicious harassment for actual damages and punitive damages of up to ten
thousand dollars.
(5))) (8)
The penalties provided in this section for malicious harassment do not preclude
the victims from seeking any other remedies otherwise available under law.
(9) Nothing in this section confers or
expands any civil rights or protections to any group or class identified under
this section, beyond those rights or protections that exist under the federal
or state Constitution or the civil laws of the state of Washington.
NEW SECTION. Sec. 3. A
new section is added to chapter 9A.36 RCW to read as follows:
In addition to the criminal penalty provided in
RCW 9A.36.080 for committing a crime of malicious harassment, the victim may
bring a civil cause of action for malicious harassment against the harasser. A
person may be liable to the victim of malicious harassment for actual damages,
punitive damages of up to ten thousand dollars, and reasonable attorneys' fees
and costs incurred in bringing the action.
NEW SECTION. Sec. 4. A
new section is added to chapter 36.28A RCW to read as follows:
(1) The Washington association of sheriffs and
police chiefs shall establish and maintain a central repository for the collection
and classification of information regarding violations of RCW 9A.36.080. Upon
establishing such a repository, the association shall develop a procedure to
monitor, record, and classify information relating to violations of RCW
9A.36.080 and any other crimes of bigotry or bias apparently directed against
other persons because the people committing the crimes perceived that their
victims were of a particular race, color, religion, ancestry, national origin,
gender, sexual orientation, or had a mental, physical, or sensory handicap.
(2) All local law enforcement agencies shall
report monthly to the association concerning all violations of RCW 9A.36.080
and any other crimes of bigotry or bias in such form and in such manner as
prescribed by rules adopted by the association. Agency participation in the
association's reporting programs, with regard to the specific data requirements
associated with violations of RCW 9A.36.080 and any other crimes of bigotry or
bias, shall be deemed to meet agency reporting requirements. The association
must summarize the information received and file an annual report with the
governor and the senate law and justice committee and the house of
representatives judiciary committee.
(3) The association shall disseminate the information
according to the provisions of chapters 10.97 and 10.98 RCW, and all other
confidentiality requirements imposed by federal or Washington law.
NEW SECTION. Sec. 5. A
new section is added to chapter 43.101 RCW to read as follows:
The criminal justice training commission shall
provide training for law enforcement officers in identifying, responding to,
and reporting all violations of RCW 9A.36.080 and any other crimes of bigotry
or bias.
NEW SECTION. Sec. 6. If
specific funding for the purposes of implementing section 5 of this act,
referencing this act by bill and section number, is not provided by June 30,
1993, in the omnibus appropriations act, section 5 of this act shall be null
and void.
NEW SECTION. Sec. 7. If
any provision of this act or its application to any person or circumstance is
held invalid, the remainder of the act or the application of the provision to
other persons or circumstances is not affected.
