Hate crimes can be charged as crimes standing alone or can be enhancements to other charges which will increase the punishment of the base crime. They can also be charged as misdemeanors or felonies. To be charged as the base crime, a defendant has to be interfering with someone else’s civil rights in some way and intend to interfere with those civil rights. For hate crimes to be charged as an enhancement to a base crime, the underlying crime must have been motivated by the victim’s status as some sort of protected class (ie. race, gender, ethnicity, sexual orientation, elderly, disabled, nationality); the crime was committed because of the victim being perceived as belonging to one of those groups.
For charging the substantive hate crime as a base crime, a defendant can interfere by force, threat of force or vandalism. A prosecutor will charge what civil right has been infringed upon and how in the charging document. Usually with hate crimes associated with force, the right is freedom to be free from violence or bodily harm. When charging a hate crime based on threat of force, it must be shown that the defendant’s threat reasonably appears to be capable of being carried out. For example, if a defendant threatens to bomb an NAACP meeting because they do not want African-Americans meeting together, it is going to be considered a hate crime. This could be charged as criminal threats with the enhancement of it being a hate crime or in the alternative charged as a hate crime as the base crime. It cannot be charged as the base crime and an enhancement.
The person need not actually belong to one of the protected groups. It only needs to be shown that the defendant believed that victim to belong to the group and that bias must be the substantial motivating factor for a defendant to commit the crime. If there is more than one reason for a defendant to commit the crime, it has to be shown that the perceived class was the main reason the crime was committed to be charged as a hate crime. In addition, belonging to the protected group extends to advocates of these groups, not necessarily belonging within the group. For example, a person who is advocating for gay rights, but who is heterosexual, is attacked by a defendant who is anti-homosexual, the attack can still be charged as a hate crime. If bias is not the main reason for committing the crime, it does not mean another crime cannot be charged instead.
Elements, crimes and defenses vary from state to state and within the federal system. If you or someone you know is charged with any crime, as always, you should consult a local attorney, licensed to practice in your jurisdiction and preferably one practicing only criminal law. You can always look for your local criminal attorney at http://www.crimelawyers.org/ or contact your state Bar association.