1569-S

AN ACT Relating to malicious harassment; amending RCW 9A.36.080 and 13.40.0357; adding new sections to chapter 9A.36 RCW; adding a new section to chapter 36.28A RCW; adding a new section to chapter 43.101 RCW; creating a new section; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. A new section is added to chapter 9A.36 RCW to read as follows:

The legislature finds that crimes and threats against persons because of their race, color, religion, ancestry, national origin, sexual orientation, or mental, physical, or sensory handicaps are serious and increasing. The legislature also finds that crimes and threats are often directed against interracial couples and their children or couples of mixed religions, colors, ancestries, or national origins because of bias and bigotry against the race, color, religion, ancestry, or national origin of one person in the couple or family. The legislature finds that the state interest in preventing crimes and threats motivated by bigotry and bias goes beyond the state interest in preventing other felonies or misdemeanors such as criminal trespass, malicious mischief, assault, or other crimes that are not motivated by hatred, bigotry, and bias, and that prosecution of those other crimes inadequately protects citizens from crimes and threats motivated by bigotry and bias. Therefore, the legislature finds that protection of those citizens from threats of harm due to bias and bigotry is a compelling state interest.

The legislature also finds that in many cases, certain discrete words or symbols are used to threaten the victims. Those discrete words or symbols have historically or traditionally been used to connote hatred or threats towards members of the class of which the victim or a member of the victim's family or household is a member. In particular, the legislature finds that cross burnings historically and traditionally have been used to threaten, terrorize, intimidate, and harass African Americans and their families. Cross burnings often preceded lynchings, murders, burning of homes, and other acts of terror. Further, Nazi swastikas historically and traditionally have been used to threaten, terrorize, intimidate, and harass Jewish people and their families. Swastikas symbolize the massive destruction of the Jewish population, commonly known as the holocaust. Therefore, the legislature finds that any person who burns or attempts to burn a cross or displays a swastika on the property of the victim or burns a cross or displays a swastika as part of a series of acts directed towards a particular person, the person's family or household members, or a particular group, knows or reasonably should know that the cross burning or swastika may create a reasonable fear of harm in the mind of the person, the person's family and household members, or the group.

Sec. 2. RCW 9A.36.080 and 1989 c 95 s 1 are each amended to read as follows:

(1) A person is guilty of malicious harassment if he or she maliciously and ((~~with the intent to intimidate or harass another person because of, or in a way that is reasonably related to, associated with, or directed toward, that person's~~)) intentionally commits one of the following acts because of his or her perception of the victim's race, color, religion, ancestry, national origin, sexual orientation, or mental, physical, or sensory handicap:

(a) Causes physical injury to the victim or another person; ((or))

(b) ((By words or conduct places another person in reasonable fear of harm to his person or property or harm to the person or property of a third person. Such words or conduct include, but are not limited to, (i) cross burning, (ii) painting, drawing, or depicting symbols or words on the property of the victim when the symbols or words historically or traditionally connote hatred or threats toward the victim, or (iii) written or oral communication designed to intimidate or harass because of, or in a way that is reasonably related to, associated with, or directed toward, that person's race, color, religion, ancestry, national origin, or mental, physical, or sensory handicap. However, it does not constitute malicious harassment for a person to speak or act in a critical, insulting, or deprecatory way unless the context or circumstances surrounding the words or conduct places another person in reasonable fear of harm to his or her person or property or harm to the person or property of a third person; or

~~(c)~~)) Causes physical damage to or destruction of the property of the victim or another person; or

(c) Threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property. The fear must be a fear that a reasonable person would have under all the circumstances. For purposes of this section, a "reasonable person" is a reasonable person who is a member of the victim's race, color, religion, ancestry, national origin, or sexual orientation, or who has the same mental, physical, or sensory handicap as the victim. Words alone do not constitute malicious harassment unless the context or circumstances surrounding the words indicate the words are a threat. Threatening words do not constitute malicious harassment if it is apparent to the victim that the person does not have the ability to carry out the threat.

(2) ((~~The following constitute per se violations of this section:~~

~~(a) Cross burning; or~~

~~(b) Defacement of the property of the victim or a third person with symbols or words when the symbols or words historically or traditionally connote hatred or threats toward the victim.~~

~~(3)~~)) In any prosecution for malicious harassment, unless evidence exists which explains to the trier of fact's satisfaction that the person did not intend to threaten the victim or victims, the trier of fact may infer that the person intended to threaten a specific victim or group of victims because of the person's perception of the victim or victims' race, color, religion, ancestry, national origin, sexual orientation, or mental, physical, or sensory handicap if the person commits one of the following acts:

(a) Burns a cross on property of a victim who is or who the actor perceives to be of African American heritage; or

(b) Defaces property of a victim who is or who the actor perceives to be of Jewish heritage by defacing the property with a swastika.

This subsection only applies to the creation of a reasonable inference for evidentiary purposes. This subsection does not restrict the state's ability to prosecute a person under subsection (1) of this section when the facts of a particular case do not fall within (a) or (b) of this subsection.

(3) It is not a defense that the accused was mistaken that the victim was a member of a certain race, color, religion, ancestry, national origin, or sexual orientation, or had a mental, physical, or sensory handicap.

(4) Evidence of expressions or associations of the accused may not be introduced as substantive evidence at trial unless the evidence specifically relates to the crime charged. Nothing in this chapter shall affect the rules of evidence governing impeachment of a witness.

(5) Every person who commits another crime during the commission of a crime under this section may be punished and prosecuted for the other crime separately.

(6) "Sexual orientation" for the purposes of this section means heterosexuality, homosexuality, or bisexuality.

(7) Malicious harassment is a class C felony.

(((4) In addition to the criminal penalty provided in subsection (3) of this section, there is hereby created a civil cause of action for malicious harassment. A person may be liable to the victim of malicious harassment for actual damages and punitive damages of up to ten thousand dollars.

~~(5)~~)) (8) The penalties provided in this section for malicious harassment do not preclude the victims from seeking any other remedies otherwise available under law.

(9) Nothing in this section confers or expands any civil rights or protections to any group or class identified under this section, beyond those rights or protections that exist under the federal or state Constitution or the civil laws of the state of Washington.

NEW SECTION. Sec. 3. A new section is added to chapter 9A.36 RCW to read as follows:

In addition to the criminal penalty provided in RCW 9A.36.080 for committing a crime of malicious harassment, the victim may bring a civil cause of action for malicious harassment against the harasser. A person may be liable to the victim of malicious harassment for actual damages, punitive damages of up to ten thousand dollars, and reasonable attorneys' fees and costs incurred in bringing the action.

Sec. 4. RCW 13.40.0357 and 1989 c 407 s 7 are each amended to read as follows:

SCHEDULE A

DESCRIPTION AND OFFENSE CATEGORY

JUVENILE

JUVENILE DISPOSITION

DISPOSITION CATEGORY FOR ATTEMPT,

OFFENSE BAILJUMP, CONSPIRACY,

CATEGORY DESCRIPTION (RCW CITATION) OR SOLICITATION

.................................................................

Arson and Malicious Mischief

A Arson 1 (9A.48.020) B+

B Arson 2 (9A.48.030) C

C Reckless Burning 1 (9A.48.040) D

D Reckless Burning 2 (9A.48.050) E

B Malicious Mischief 1 (9A.48.070) C

C Malicious Mischief 2 (9A.48.080) D

D Malicious Mischief 3 (<$50 is

E class) (9A.48.090) E

E Tampering with Fire Alarm

Apparatus (9.40.100) E

A Possession of Incendiary Device

(9.40.120) B+

Assault and Other Crimes

Involving Physical Harm

A Assault 1 (9A.36.011) B+

B+ Assault 2 (9A.36.021) C+

C+ Assault 3 (9A.36.031) D+

D+ Assault 4 (9A.36.041) E

D+ Reckless Endangerment

(9A.36.050) E

C+ Promoting Suicide Attempt

(9A.36.060) D+

D+ Coercion (9A.36.070) E

C+ Custodial Assault (9A.36.100) D+

C Malicious Harassment (9A.36.080) D+

Burglary and Trespass

B+ Burglary 1 (9A.52.020) C+

B Burglary 2 (9A.52.030) C

D Burglary Tools (Possession of)

(9A.52.060) E

D Criminal Trespass 1 (9A.52.070) E

E Criminal Trespass 2 (9A.52.080) E

D Vehicle Prowling (9A.52.100) E

Drugs

E Possession/Consumption of Alcohol

(66.44.270) E

C Illegally Obtaining Legend Drug

(69.41.020) D

C+ Sale, Delivery, Possession of Legend

Drug with Intent to Sell

(69.41.030) D+

E Possession of Legend Drug

(69.41.030) E

B+ Violation of Uniform Controlled

Substances Act - Narcotic Sale

(69.50.401(a)(1)(i)) B+

C Violation of Uniform Controlled

Substances Act - Nonnarcotic Sale

(69.50.401(a)(1)(ii)) C

E Possession of Marihuana <40 grams

(69.50.401(e)) E

C Fraudulently Obtaining Controlled

Substance (69.50.403) C

C+ Sale of Controlled Substance

for Profit (69.50.410) C+

E ((~~Glue Sniffing (9.47A.050)~~))

Unlawful Inhalation (9.47A.020) E

B Violation of Uniform Controlled

Substances Act - Narcotic

Counterfeit Substances

(69.50.401(b)(1)(i)) B

C Violation of Uniform Controlled

Substances Act - Nonnarcotic

Counterfeit Substances

(69.50.401(b)(1) (ii), (iii), (iv)) C

C Violation of Uniform Controlled

Substances Act - Possession of a

Controlled Substance

(69.50.401(d)) C

C Violation of Uniform Controlled

Substances Act - Possession of a

Controlled Substance

(69.50.401(c)) C

Firearms and Weapons

((~~C+ Committing Crime when Armed~~

~~(9.41.025) D+~~))

E Carrying Loaded Pistol Without

Permit (9.41.050) E

E Use of Firearms by Minor (<14)

(9.41.240) E

D+ Possession of Dangerous Weapon

(9.41.250) E

D Intimidating Another Person by use

of Weapon (9.41.270) E

Homicide

A+ Murder 1 (9A.32.030) A

A+ Murder 2 (9A.32.050) B+

B+ Manslaughter 1 (9A.32.060) C+

C+ Manslaughter 2 (9A.32.070) D+

B+ Vehicular Homicide (46.61.520) C+

Kidnapping

A Kidnap 1 (9A.40.020) B+

B+ Kidnap 2 (9A.40.030) C+

C+ Unlawful Imprisonment

(9A.40.040) D+

((~~D Custodial Interference~~

~~(9A.40.050) E~~))

Obstructing Governmental Operation

E Obstructing a Public Servant

(9A.76.020) E

E Resisting Arrest (9A.76.040) E

B Introducing Contraband 1

(9A.76.140) C

C Introducing Contraband 2

(9A.76.150) D

E Introducing Contraband 3

(9A.76.160) E

B+ Intimidating a Public Servant

(9A.76.180) C+

B+ Intimidating a Witness

(9A.72.110) C+

((~~E Criminal Contempt~~

~~(9.23.010) E~~))

Public Disturbance

C+ Riot with Weapon (9A.84.010) D+

D+ Riot Without Weapon

(9A.84.010) E

E Failure to Disperse (9A.84.020) E

E Disorderly Conduct (9A.84.030) E

Sex Crimes

A Rape 1 (9A.44.040) B+

A- Rape 2 (9A.44.050) B+

C+ Rape 3 (9A.44.060) D+

A- Rape of a Child 1 (9A.44.073) B+

B Rape of a Child 2 (9A.44.076) C+

B Incest 1 (9A.64.020(1)) C

C Incest 2 (9A.64.020(2)) D

D+ ((~~Public Indecency~~)) Indecent Exposure

(Victim <14) (9A.88.010) E

E ((~~Public Indecency~~)) Indecent Exposure

(Victim 14 or over) (9A.88.010) E

B+ Promoting Prostitution 1

(9A.88.070) C+

C+ Promoting Prostitution 2

(9A.88.080) D+

E O & A (Prostitution) (9A.88.030) E

B+ Indecent Liberties (9A.44.100) C+

B+ Child Molestation 1 (9A.44.083) C+

C+ Child Molestation 2 (9A.44.086) C

Theft, Robbery, Extortion, and Forgery

B Theft 1 (9A.56.030) C

C Theft 2 (9A.56.040) D

D Theft 3 (9A.56.050) E

B Theft of Livestock (9A.56.080) C

C Forgery ((~~(9A.56.020)~~)) (9A.60.020) D

A Robbery 1 (9A.56.200) B+

B+ Robbery 2 (9A.56.210) C+

B+ Extortion 1 (9A.56.120) C+

C+ Extortion 2 (9A.56.130) D+

B Possession of Stolen Property 1

(9A.56.150) C

C Possession of Stolen Property 2

(9A.56.160) D

D Possession of Stolen Property 3

(9A.56.170) E

C Taking Motor Vehicle Without

Owner's Permission (9A.56.070) D

Motor Vehicle Related Crimes

E Driving Without a License

(46.20.021) E

C Hit and Run - Injury

(46.52.020(4)) D

D Hit and Run-Attended

(46.52.020(5)) E

E Hit and Run-Unattended

(46.52.010) E

C Vehicular Assault (46.61.522) D

C Attempting to Elude Pursuing

Police Vehicle (46.61.024) D

E Reckless Driving (46.61.500) E

D Driving While Under the Influence

(46.61.515) E

((~~B+ Negligent Homicide by Motor~~

~~Vehicle (46.61.520) C+~~))

D Vehicle Prowling (9A.52.100) E

C Taking Motor Vehicle Without

Owner's Permission (9A.56.070) D

Other

B Bomb Threat (9.61.160) C

C Escape 1¹ (9A.76.110) C

C Escape 2¹ (9A.76.120) C

D Escape 3 (9A.76.130) E

C Failure to Appear in Court

(10.19.130) D

((~~E Tampering with Fire Alarm~~

~~Apparatus (9.40.100) E~~))

E Obscene, Harassing, Etc.,

Phone Calls (9.61.230) E

A Other Offense Equivalent to an

Adult Class A Felony B+

B Other Offense Equivalent to an

Adult Class B Felony C

C Other Offense Equivalent to an

Adult Class C Felony D

D Other Offense Equivalent to an

Adult Gross Misdemeanor E

E Other Offense Equivalent to an

Adult Misdemeanor E

V Violation of Order of Restitution,

Community Supervision, or

Confinement (13.40.200)² V

¹Escape 1 and 2 and Attempted Escape 1 and 2 are classed as C offenses and the standard range is established as follows:

1st escape or attempted escape during 12-month period - 4 weeks confinement

2nd escape or attempted escape during 12-month period - 8 weeks confinement

3rd and subsequent escape or attempted escape during 12-month period - 12 weeks confinement

²If the court finds that a respondent has violated terms of an order, it may impose a penalty of up to 30 days of confinement.

SCHEDULE B

PRIOR OFFENSE INCREASE FACTOR

For use with all CURRENT OFFENSES occurring on or after July 1, 1989.

TIME SPAN

OFFENSE 0-12 13-24 25 Months

CATEGORY Months Months or More

.................................................................

A+ .9 .9 .9

A .9 .8 .6

A- .9 .8 .5

B+ .9 .7 .4

B .9 .6 .3

C+ .6 .3 .2

C .5 .2 .2

D+ .3 .2 .1

D .2 .1 .1

E .1 .1 .1

Prior history - Any offense in which a diversion agreement or counsel and release form was signed, or any offense which has been adjudicated by court to be correct prior to the commission of the current offense(s).

SCHEDULE C

CURRENT OFFENSE POINTS

For use with all CURRENT OFFENSES occurring on or after July 1, 1989.

AGE

OFFENSE 12 &

CATEGORY Under 13 14 15 16 17

..............................................................

A+ STANDARD RANGE 180-224 WEEKS

A 250 300 350 375 375 375

A- 150 150 150 200 200 200

B+ 110 110 120 130 140 150

B 45 45 50 50 57 57

C+ 44 44 49 49 55 55

C 40 40 45 45 50 50

D+ 16 18 20 22 24 26

D 14 16 18 20 22 24

E 4 4 4 6 8 10

JUVENILE SENTENCING STANDARDS

SCHEDULE D-1

This schedule may only be used for minor/first offenders. After the determination is made that a youth is a minor/first offender, the court has the discretion to select sentencing option A, B, or C.

MINOR/FIRST OFFENDER

OPTION A

STANDARD RANGE

Community

Community Service

Points Supervision Hours Fine

1-9 0-3 months and/or 0-8 and/or 0-$10

10-19 0-3 months and/or 0-8 and/or 0-$10

20-29 0-3 months and/or 0-16 and/or 0-$10

30-39 0-3 months and/or 8-24 and/or 0-$25

40-49 3-6 months and/or 16-32 and/or 0-$25

50-59 3-6 months and/or 24-40 and/or 0-$25

60-69 6-9 months and/or 32-48 and/or 0-$50

70-79 6-9 months and/or 40-55 and/or 0-$50

80-89 9-12 months and/or 48-64 and/or 10-$100

90-109 9-12 months and/or 56-72 and/or 10-$100

OPTION B

STATUTORY OPTION

0-12 Months Community Supervision

0-150 Hours Community Service

0-100 Fine

A term of community supervision with a maximum of 150 hours, $100.00 fine, and 12 months supervision.

OPTION C

MANIFEST INJUSTICE

When a term of community supervision would effectuate a manifest injustice, another disposition may be imposed. When a judge imposes a sentence of confinement exceeding 30 days, the court shall sentence the juvenile to a maximum term and the provisions of RCW ((~~13.40.030(5)~~)) 13.40.030(2), as now or hereafter amended, shall be used to determine the range.

JUVENILE SENTENCING STANDARDS

SCHEDULE D-2

This schedule may only be used for middle offenders. After the determination is made that a youth is a middle offender, the court has the discretion to select sentencing option A, B, or C.

MIDDLE OFFENDER

OPTION A

STANDARD RANGE

Community

Community Service Confinement

Points Supervision Hours Fine Days Weeks

.................................................................

1-9 0-3 months and/or 0-8 and/or 0-$10 and/or 0

10-19 0-3 months and/or 0-8 and/or 0-$10 and/or 0

20-29 0-3 months and/or 0-16 and/or 0-$10 and/or 0

30-39 0-3 months and/or 8-24 and/or 0-$25 and/or 2‑4

40-49 3-6 months and/or 16-32 and/or 0-$25 and/or 2‑4

50-59 3-6 months and/or 24-40 and/or 0-$25 and/or 5‑10

60-69 6-9 months and/or 32-48 and/or 0-$50 and/or 5-10

70-79 6-9 months and/or 40-56 and/or 0-$50 and/or 10‑20

80-89 9-12 months and/or 48-64 and/or 0-$100 and/or 10‑20

90-109 9-12 months and/or 56-72 and/or 0-$100 and/or 15‑30

110-129 8-12

130-149 13-16

150-199 21-28

200-249 30-40

250-299 52-65

300-374 80-100

375+ 103-129

Middle offenders with more than 110 points do not have to be committed. They may be assigned community supervision under option B.

All A+ offenses 180-224 weeks

OPTION B

STATUTORY OPTION

0-12 Months Community Supervision

0-150 Hours Community Service

0-100 Fine

The court may impose a determinate disposition of community supervision and/or up to 30 days confinement; in which case, if confinement has been imposed, the court shall state either aggravating or mitigating factors as set forth in RCW 13.40.150, as now or hereafter amended.

OPTION C

MANIFEST INJUSTICE

If the court determines that a disposition under A or B would effectuate a manifest injustice, the court shall sentence the juvenile to a maximum term and the provisions of RCW ((~~13.40.030(5)~~)) 13.40.030(2), as now or hereafter amended, shall be used to determine range.

JUVENILE SENTENCING STANDARDS

SCHEDULE D-3

This schedule may only be used for serious offenders. After the determination is made that a youth is a serious offender, the court has the discretion to select sentencing option A or B.

SERIOUS OFFENDER

OPTION A

STANDARD RANGE

Points Institution Time

0-129 8-12 weeks

130-149 13-16 weeks

150-199 21-28 weeks

200-249 30-40 weeks

250-299 52-65 weeks

300-374 80-100 weeks

375+ 103-129 weeks

All A+

Offenses 180-224 weeks

OPTION B

MANIFEST INJUSTICE

A disposition outside the standard range shall be determined and shall be comprised of confinement or community supervision or a combination thereof. When a judge finds a manifest injustice and imposes a sentence of confinement exceeding 30 days, the court shall sentence the juvenile to a maximum term, and the provisions of RCW ((~~13.40.030(5)~~)) 13.40.030(2), as now or hereafter amended, shall be used to determine the range.

NEW SECTION. Sec. 5. A new section is added to chapter 36.28A RCW to read as follows:

(1) The Washington association of sheriffs and police chiefs shall establish and maintain a central repository for the collection and classification of information regarding violations of RCW 9A.36.080. Upon establishing such a repository, the association shall develop a procedure to monitor, record, and classify information relating to violations of RCW 9A.36.080 and any other crimes of bigotry or bias apparently directed against other persons because the people committing the crimes perceived that their victims were of a particular race, color, religion, ancestry, national origin, sexual orientation, or had a mental, physical, or sensory handicap.

(2) All local law enforcement agencies shall report monthly to the association concerning all violations of RCW 9A.36.080 and any other crimes of bigotry or bias in such form and in such manner as prescribed by rules adopted by the association. Agency participation in the association's reporting programs, with regard to the specific data requirements associated with violations of RCW 9A.36.080 and any other crimes of bigotry or bias, shall be deemed to meet agency reporting requirements. The association must summarize the information received and file an annual report with the governor and the senate law and justice committee and the house of representatives judiciary committee.

(3) The association shall disseminate the information according to the provisions of chapters 10.97 and 10.98 RCW, and all other confidentiality requirements imposed by federal or Washington law.

NEW SECTION. Sec. 6. A new section is added to chapter 43.101 RCW to read as follows:

The criminal justice training commission shall provide training for law enforcement officers in identifying, responding to, and reporting all violations of RCW 9A.36.080 and any other crimes of bigotry or bias.

NEW SECTION. Sec. 7. If specific funding for the purposes of implementing section 6 of this act, referencing this act by bill and section number, is not provided by June 30, 1993, in the omnibus appropriations act, section 6 of this act shall be null and void.

NEW SECTION. Sec. 8. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.