By Larry W. Zukerman and Adam M. Brown | Special to the CJN | June 20, 2021
In our world of divisiveness, generally, most people can agree – crime is bad. But what about “hate crimes”? We have all heard the loaded-phrase before, but many remain unclear about what elevates a seemingly regular “crime” into a “hate crime”? Two recent incidents reported on by the Cleveland Jewish News shed some light on this question and the potentially broad reach of hate crime laws.
Recently, the CJN reported on a concerning incident where students walking to Shabbat celebrations came under attack by drive-by paintball fire from a passing vehicle. On June 4, a group of teenage students from Fuchs Mizrachi School and Green Road Synagogue were walking to a teacher’s home for oneg Shabbat celebrations and while in front of Waxman Chabad Center of Cleveland, two students were hit in the face with paintballs fired from a passing vehicle.
While it is unknown whether the assailants targeted the students because of their Jewish faith, given the location of the incident, the time of night and the students’ identifiable, traditional Orthodox dress, it is quite certainly a realistic possibility. This begs the question – was this appalling assault upon Jewish youth a “hate crime”?
Though Ohio law does not include a specific offense entitled a hate crime, in 1987, the Ohio Legislature criminalized the offense of ethnic intimidation, which constitutes a separate crime when an offender commits aggravated menacing or menacing (threats), criminal damaging, endangering, mischief or telephone harassment “by reason of the race, color, religion, or national origin of another.”
When sentencing any offender for a felony, Ohio law requires judges to consider whether the offender was motivated by prejudice based on race, ethnic background, gender, sexual orientation, or religion. Curiously, that same required consideration is not so expressly required for judges sentencing offenders for misdemeanors.
Federal law is a different story. Federal hate-crime legislation has been on the books since 1968 and the legislation has expanded overtime. Generally speaking, the federal hate crime law criminalizes “causing bodily injury to any person … through the use of … a dangerous weapon, or an explosive … because of the … race, color, religion, or national origin of any person.” Additionally, it is a federal hate crime for someone to “use, or threaten to use force to willfully interfere with any person because of race, color, religion, or national origin and because the person is participating in a federally protected activity, such as public education.”
What exactly constitutes “willful interference” under the federal hate crime law is subject to broad interpretation, as evidenced by a second incident: a teen high school football player in Canton was allegedly forced by his coaches to eat a pepperoni pizza for missing practice. The teen, a Hebrew Israelite, claimed that eating pork was against his religion as it is not kosher. The student’s attorney requested federal authorities to open a hate crime investigation. Thus, the federal hate crime law’s broad language creates the potential for it to protect even members of religious groups with hateful ideologies.
One of the biggest challenges in any prosecution involving alleged acts of hate is that the government typically must prove that the crime was motivated by prejudice against “race, color, national origin, religion, or gender.” Whether the drive-by paintball assailants or the force-feeding coaches acted with the required hateful motives remains to be determined.
As hateful and repulsive as some beliefs are, the Constitution enshrines people with the right to believe whatever they want. That being said, when those hate-fueled beliefs escalate to violence or threats of violence against others, a new level of unacceptable criminality emerges that has no place in our society, and which must be severely punished.
Larry W. Zukerman is the managing partner of Zukerman, Lear & Murray, Co., LPA in Cleveland and Adam M. Brown is an associate attorney. For more information, visit zukerman-law.com.
