What's the difference between a bias incident and a hate crime?

The symbols of racism and intolerance that have rocked Columbia over the past several weeks have brought to light an ambiguous gray area in the legal definitions of racially charged episodes.

According to the New York State Hate Crimes Act of 2000, a hate crime is described as an offense wherein the victim is selected or the crime is committed because of the victim’s race, color, national origin, ancestry, gender, religion, religious practice, age, disability, or sexual orientation. But according to legal scholars, it is sometimes difficult to define what exactly differentiates a hate crime from a bias incident.

“It really comes down to intent and results,” said James Tierney, director of the National State Attorneys General Program at Columbia Law School.

Hate crimes, said Michael Dorf, Isidor and Seville Sulzbacher Professor of Law, are bias-motivated threats that target a certain people or group, whereas bias incidents may be abstract statements that are found offensive, but are legally permissible.

“There are manifestations of prejudice that are not criminalized either because legislation has chosen not to criminalize them or because they’re protected under their First Amendment rights,” Dorf said.

Still, legal scholars find the line between hate crime and bias incident blurry. For example, there is some disagreement among faculty members about how to label the incident last week when an African American professor found a noose on her office door at the Teachers College.

“Whoever did that could be held guilty of a hate crime provided that the jury found that it was done with the intention to threaten or intimidate,” Dorf said, explaining that the historical significance of the noose would be enough evidence of racially biased motive.

But law professor Jack Greenberg of Columbia Law School disagrees.

“I would call it a ‘hate incident,’ but it’s not against the law,” Greenberg said. “If somebody said ‘let’s string her up,’ that would be a crime, but nobody said that.” An offense constitutes a hate crime, Greenberg says, when it instigates violence.

The New York Police Department, for its part, has officially labeled the incident a hate crime. Legally, the designation of an incident as a hate crime cannot stand on its own. Rather, the charge is for a different criminal act with the hate crime designation tacked on. For example, in the instance of the noose incident, the charge is “aggravated harassment as a hate crime,” which carries a harsher potential punishment than simply “aggravated harassment.”

The lack of consensus in the Columbia community on the classification of the recent events indicates that the community has yet to completely settle on a common definition for hate crimes and bias incidents.

“You really have to have your facts up front and you have to be sure of it,” Tierney said. “These are difficult cases.”

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