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Malicious Harassment: What Makes a Hate Crime?

In Washington State, there is a condition that sets come crimes apart from others; namely the person's disposition towards the person that he or she committed the act against. If the criminal act is motivated by a person's race, color religion, ancestry, national origin, gender, sexual orientation, or any mental, physical or sensory disability, it falls into a special category. In most states, this is known as a hate crime. Washington State defines how it finds and classifies hate crimes in RCW 9A.36.078. The statute sets forth some important limitations on how hate crimes work.

What is most important is the state establishing the bounds of hate crimes. The statute reads:

"...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."

This essentially establishes both what constitutes a hate crime as "crimes and threats motivated by bigotry and bias," as well as demonstrating that the State, as an institution, places greater weight on crimes motivated by bigotry. This means that during criminal proceedings, if you have committed a crime against anyone and there is reason to believe that this crime was motivated by bigotry, you may also be facing hate crime charges.

Malicious Harassment

Malicious Harassment is a crime that you may be facing in addition to any charges you already have, if the prosecution has deemed that there is sufficient cause to believe that your actions were motivated by personal bias or bigotry. Malicious Harassment is defined in RCW 9A.36.080. The statute reads:

"(1) A person is guilty of malicious harassment if he or she maliciously and 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;

(b) 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."

This means that when the jury evaluates the whether or not a person is responsible for malicious harassment, they are going to have to put themselves into the shoes of what the statute defines as a reasonable individual, rather than their own mindset. This may be difficult to properly enact if the jurors are not members of the group that the alleged hate crime has offended.

The statute also makes note of two specific actions that can automatically be inferred by the court as an act of malicious harassment:

"(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."

These actions, due to historical context and the nature of these symbols and acts are automatically considered a hate crime without debating the nature of the defendant's biases or intent. This however does not mean that only the groups mentioned are the only groups that these crimes can be considered hate crimes for.

The statute also makes note that there is no valid defense in the defendant claiming that they were mistaken about the victim belonging to one of the protected groups. This means that excuses such as "I didn't know" may not hold up in court as a defense against a potentially bigotry-motivated crime.


Malicious Harassment is a Class C Felony. In Washington State, Class C felonies are punishable by up to five years in a state prison, or fines up to $10,000, or in some cases, both. There is no lower level offense of Malicious Harassment, so a hate crime conviction will mean a felony on your record, and will likely land you in a state prison for some time.

Defending against allegations of a hate crime is difficult, and there is very little room for negotiation. If you or a loved one is currently facing charges for a hate crime, or charges of Malicious Harassment, contact criminal defense attorney Steve Karimi today.

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If you were arrested or a loved one has been charged with a crime in Seattle or surrounding areas of Washington State, the Law Offices of Steve Karimi can help. Call 206-660-6200 24 hours a day for a free consultation.

Seattle Defense Lawyer

Named a "rising star" in criminal defense by Washington Law and Politics magazine, Mr. Karimi is a former prosecutor for King County who uses his insight into prosecution strategies to protect his clients' rights in criminal court.