Assault is ordinarily a misdemeanor in Virginia. But the legislature in the Commonwealth has recognized that assaults motivated by bias are more offensive and therefore they have imposed stiffer penalties for such offenses. According to the Department of Justice, there were over 7,000 bias incidents in the United States in 2019. A person accused of a hate crime can have his reputation destroyed, so if you have been charged with any assault , please contact our Fairfax criminal defense attorneys today.
Defining a Hate Crime
Virginia Code § 18.2-57 identifies assault and battery as a Class 1 misdemeanor offense. It also defines when an assault will be treated as a hate crime: when the defendant intentionally targets a victim because of his or her race, color, gender, gender identity, disability, religion, sexual orientation, or national origin.
The statute requires that the victim “intentionally” select the victim based on their protected characteristic. However, if the defendant attacks a person who turns out to be gay, for example, —and the defendant had no idea of that fact—then it is not a hate crime. Likewise, if a person indiscriminately starts pounding on people in a bar fight, and some of the people struck are amongst the protected classes, then the defendant has not intentionally targeted them for their protected identity.
Relevant Evidence for Determining Motive
A hate crime hinges on motivation. Without proof that the defendant was motivated by bias, he or she can only be convicted with ordinary assault and battery.
What kind of evidence can the prosecutor use? Each case is different, but typical evidence usually involves the following:
● The defendant uses epithets or slurs during the attack
● The defendant belongs to a group that expresses hatred toward certain groups
● The defendant has written social media posts expressing hatred of certain groups
The use of evidence is tricky, especially when the defendant’s biased statements precede the attack—sometimes by several years. For example, a person could have posted hateful tweets while in high school. The assault then happens years down the road. Do the tweets suggest animus that motivates a much-later attack?
Prosecutors sometimes are quite aggressive trying to connect random or infrequent statements from years before to violent attacks. You need a seasoned criminal defense lawyer to carefully review all the evidence to check for gaps or holes.
Penalties for Bias-Motivated Assault
Assault or assault and battery is a Class 1 misdemeanor, which under Virginia law carries maximum penalties of up to 12 months in jail and/or a fine up to $2,500. But if the defendant’s conduct was motivated by bias, then the penalty shall include a term of confinement of at least six months in jail.
If the victim suffers bodily injury, then the defendant can be charged with a Class 6 felony. Class 6 felonies carry maximum penalties of up to 5 years in prison and $2,500 fine and the penalty for this offense must include six months incarceration.
Contact a Northern Virginia Criminal Defense Attorney
The lawyers at Whitestone Young, P.C. have tackled some of the most difficult criminal cases around. We approach every case in a non-judgmental manner, striving to obtain the best result possible for our clients. Don’t let a simple mistake cost you time and money. Call us to schedule your confidential consultation.