H-3623

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

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

NEW SECTION. Sec. 1. 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. Protection of those citizens from threats of harm due to bias and bigotry is a compelling state interest.

The legislature finds that cross burnings historically and traditionally have been used to threaten, terrorize, intimidate, and harass African Americans and their families and 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, if the act is directed towards a particular person, the person's family or household members, or a particular group, knows or reasonably should know that the act 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:

(a) He or she maliciously and with the intent to threaten, terrorize, intimidate, or harass ((~~another person~~)) the victim because of, or in a way that is reasonably related to, associated with, or directed toward, ((~~that person's~~)) the race, color, religion, ancestry, national origin, sexual orientation, or mental, physical, or sensory handicap of the victim or of one of the victim's family or household members does any of the following:

((~~(a)~~)) (i) Causes physical injury to another person; ((or

~~(b)~~)) (ii) Causes physical damage to or destruction of another person's property; or

(iii) Communicates threats, as defined in RCW 9A.04.110, directly or indirectly to the victim 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~~)) intended to cause the victim to fear that the threat will be carried out against the victim or another person. It is not a defense that the accused had no intention of actually carrying out the threat. Threatening words or conduct include, but are not limited to, ((~~(i)~~)) (A) cross burning, ((~~(ii)~~)) (B) 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~~)) persons of a particular race, color, religion, ancestry, national origin, sexual orientation, or toward persons with a particular mental, physical, or sensory handicap, or ((~~(iii)~~)) (C) written or oral communication designed to threaten, terrorize, 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)) the victim. 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 another person~~)) words or conduct that are not threats do not constitute malicious harassment; and

(b) As a result of the accused's actions under (a) (i), (ii), or (iii) of this subsection, the victim is terrorized or placed in fear that the person or property of the victim or of another person will be physically injured or destroyed or that the threat communicated under (a)(iii) of this subsection will be carried out against the victim or another person. 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, sexual orientation, or who has the same mental, physical, or sensory handicap as the victim.

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

(a) Cross burning on the victim's property; 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~~)) race, color, religion, ancestry, national origin, sexual orientation, or mental, physical, or sensory handicap of the victim or of one of the victim's family or household members.

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

(4) Malicious harassment is a class ((C)) B felony.

((~~(4)~~)) (5) In addition to the criminal penalty provided in subsection ((~~(3)~~)) (4) 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.

(6) In addition to any other court-imposed penalties, the court shall require the person found to have maliciously harassed the victim to make restitution to the victim, including the costs of any psychological counseling provided to the victim or members of the victim's family or household as a result of the malicious harassment.

((~~(5)~~)) (7) The penalties provided in this section for malicious harassment do not preclude the victims from seeking any other remedies otherwise available under law. Nothing in this section confers or expands any civil rights or protection to any group or class identified in this section, beyond those rights and protection afforded under this section and those rights and protection that currently exist under federal or Washington state constitutional law, common law, or statutory law.

NEW SECTION. Sec. 3. 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 persons because of their race, color, religion, ancestry, national origin, sexual orientation, or 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.

(4) The criminal justice training commission shall provide training for law enforcement officers, prosecutors, defense attorneys, and judges in identifying and responding to all violations of RCW 9A.36.080 and any other crimes of bigotry or bias.

NEW SECTION. Sec. 4. 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.