SENATE BILL REPORT

SB 5480

BYSenators Pullen, Fleming, Talmadge, Smitherman, McCaslin, Nelson, Niemi, Madsen, Rinehart and Lee

Clarifying the crime of malicious harassment.

Senate Committee on Law & Justice

Senate Hearing Date(s):January 12, 1989; January 30, 1989

Majority Report:  Do pass.

      Signed by Senators Pullen, Chairman; McCaslin, Vice Chairman; Hayner, Madsen, Nelson, Rasmussen, Rinehart, Talmadge, Thorsness.

Senate Staff:Ben Barnes (786-7465)

                  March 8, 1989

AS PASSED SENATE, MARCH 7, 1989

BACKGROUND:

In the past several years, there has been a steady increase in the number of incidents involving racial or religious harassment of Washington citizens.  A recent report issued by the Northwest Coalition Against Malicious Harassment documents at least 42 reported cases of violence or destruction of property within the past 12 months which are directly attributable to racial or religious bias.

RCW 9A.36.080 provides that a person is guilty of malicious harassment if he or she maliciously and with the intent to intimidate or harass another person on the basis of race, color, religion, ancestry, national origin, or handicap, causes injury to another's person or property.  Malicious harassment is a class C felony, punishable by up to $10,000 and/or five years in prison.  In addition to the criminal penalty, a person may also be liable in a civil action for actual damages to the victim and punitive damages of up to $10,000.

The following examples, consistent with the examples cited in the original floor debate in the Senate on March 20, 1981, illustrate some typical words or conduct which the Legislature intended to cover by the malicious harassment statute.  These examples are by no means inclusive, and many other situations involving malicious harassment could be cited.  The examples are for clarification purposes only and to help establish legislative intent.  The Legislature does not condone the highly prejudicial and inflammatory words used in these examples, but the words will help to clarify the thrust and intent of the law.

      1)A swastika is painted on the home of a Jewish family.  This act constitutes a per se violation of the law because the property of the Jewish family was defaced with a swastika, and in addition to the defacement, a swastika is a symbol that traditionally connotes hatred or threats towards Jews.

2)A person drives past a family of Chinese ancestry and yells out the window of the car, "All Chinese better go back to China, or else they'll wish they had!{  These words constitute a violation of the law because the perpetrator has maliciously harassed the victim in a way that is related to the victim's race and by oral communication has directed an implied threat to the victim and thereby has placed the victim in fear of harm to his person or property.

3)A cross is burned on the lawn of a Black family.  This act constitutes a per se violation of the law.  The Legislature intends that the burning of a cross be a per se violation of the law because, by tradition, the burning of a cross is a racially motivated action that is highly intimidating and represents a threat to the safety of the person or property of the victim.  Moreover, it would make no difference if the family were of another race.

4)A Black person is walking along the street, and a person yells from the other side of the street, "I wish all Blacks would go back to Africa."  These words, in and of themselves, do not constitute a violation of the law because the person was expressing a personal, though highly prejudicial point of view, and is not threatening harm to the Black person.

Several months ago, a youth who confessed to burning a cross on the lawn of an interracial family in Kitsap County was acquitted under the malicious harassment statute.  The defense argued and the jurors apparently concluded that the statute applied only where the harassment was solely due to race.  The jurors also interpreted the statute as applying only to organized hate groups and not to individuals.

In light of the present confusion regarding the proper interpretation and implementation of the malicious harassment statute, it is suggested that the current law be amended to clarify the Legislature's intent and purpose.

SUMMARY:

Clarifying language is added to the definition of malicious harassment.

Cross burning and defacement of property with symbols or words which traditionally or historically connote racial or religious hatred constitute per se violations of the malicious harassment statute.

The Administrator for the Courts is required to develop a malicious harassment educational training program for superior court and court of appeals judges and justices of the Supreme Court by July 1, 1989.

Appropriation:    none

Revenue:    none

Fiscal Note:      available

Senate Committee - Testified: Val Torrens, citizen (pro); Robert Stern, Puget Sound Task Force on Human Rights (pro); Bill Wassmuth, Northwest Coalition against Malicious Harassment (pro); Deni Yamauchi, Center for Democratic Renewal (pro); Mike Redman, Washington Association of Prosecuting Attorneys; Donald Fast, citizen (pro)