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hate crimes, criminal liability


The primary objection of traditional criminal law theory to hate crimes is use of the actor's motive in defining the offense or the penalty enhancement. Motive, it is said, ought not be, and generally is not held to be, relevant to criminal liability. Hate crimes violate this rule by taking account of the actor's motive - his or her anti-race, anti-religion, anti-sexual preference, or other anti-group motive. I will argue that motive ought to be and commonly is, notwithstanding the claims to the contrary, an element in determining liability or grade of offense. What is objectionable, and what generally has been prohibited, is use of an actor's character or general set of values as an element of liability or grading; but motive is not character. By keeping the law's focus only upon the character attributes relevant to the conduct constituting the offense, motive in fact serves a useful role in reducing the temptation of liability inquiries to stray towards punishing general character. While reliance upon motive may be consistent with traditional criminal law theory, it does not follow that motive is necessarily the best criterion for defining the harms and evils that hate crimes seek to punish. Using an actor's bigoted motivation as a defining characteristic creates special difficulties in implementation and application, as well as dangers of infringing constitutionally protected speech or expressive conduct. One might conclude that, while traditional notions of criminal law theory would permit its use, hate motivation is best avoided as an offense or grading element, in favor of more objective factors present in such offenses. A promising alternative is the criminalization of conduct that is intended to cause (or risk) intimidation or terror of an identifiable group. That alternative avoids the possibility of First Amendment problems and is consistent with mainstream criminal law theory by punishing an actor according to the extent of the harm caused, risked, or intended.

Publication Title

Annual Survey of American Law

Publication Citation

1992/1993 Ann. Surv. Amer. L. 605 (1993)