Kansas

A hate crime is generally defined as a crime against a person or property that is motivated by bias, prejudice, or hatred toward the actual or perceived personal characteristics of an intended victim, including: race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.

The definition of a hate crime differs from state to state, but always includes an underlying crime.1 Several states do not have separate statutes for crimes motivated by hate, but at a minimum, most states have enhanced penalties for crimes motivated by hatred based upon the above characteristics. Furthermore, if state and local authorities do not sufficiently protect victims of hate crimes, then the federal government may step in and prosecute hate crime violations.

Kansas does not have a hate crime law. However, in Kansas, a sentencing enhancement is available if the crime “was motivated entirely or in part by the race, color, religion, ethnicity, national origin or sexual orientation of the victim or the offense was motivated by the defendant’s belief or perception, entirely or in part, of the race, color, religion, ethnicity, national origin or sexual orientation of the victim whether or not the defendant’s belief or perception was correct.”2

A hate incident is based on the same behaviors and motivations as a hate crime, but does not rise to the level of a crime. For example, you may be a victim of hate speech, which, depending on the circumstances, may not constitute a crime (and may be protected under the First Amendment), but which may constitute a hate incident.

1 Examples of underlying crimes include assault, battery, destruction of property, threats, rape, murder, arson, robbery, and burglary. This list of criminal offenses is not exhaustive, however, and other criminal offenses may be punished as hate crimes.

2 K.S.A. 21-6815(c)(2)(C).

If you think you may be a victim of a hate crime or hate incident, you should immediately take the following three steps:

STEP 1: REPORT IT

For emergencies:

· If you (or others) have been injured or fear for your safety, call 911 immediately.

· If you are uncomfortable calling 911 or local law enforcement, consider calling the local United States Attorney, the local FBI Field Office, or the State Attorney General’s office to report the offense. Understand, however, that these authorities may not respond as quickly as local law enforcement responding to a 911 call.

· Obtain medical attention if necessary.

For non-emergencies:

· Call or visit your local police station or federal law enforcement office as soon as possible to report the offense.

· If you are not comfortable calling law enforcement, consider calling a trusted community or legal services organization. You can call 844-9-NO-HATE to be connected to a local organization.

Follow-up and key things to remember for both emergencies and non-emergencies:

· Ensure that a police report is filed regarding the offense and obtain a copy of the report (which should include the responding officer’s name and badge number).

· Request that the police report indicate that the offense may have been a hate crime or a hate incident.

· File the report with local law enforcement, the State Attorney General’s office, and federal law enforcement.

· For additional support and documentation, also report the offense to 844-9-NO-HATE.

STEP 2: GATHER INFORMATION

· Preserve any evidence and take photographs of the evidence. For example, do not remove graffiti, but instead, take photographs of the graffiti. Do not delete electronic correspondence (e.g., text messages, emails, and social media posts), including your own. If you decide to involve law enforcement, you should preserve all evidence as directed by law enforcement.

· Document the experience in writing as soon as possible after the offense, including any specific words used during the offense. Record all your thoughts.

· Record any information you can remember about the perpetrator, including approximate age, height, weight, gender, race, clothing, and any other distinguishing characteristics.

· Obtain contact information (names, addresses, and telephone numbers) of any other victims or witnesses to the offense.

STEP 3: GET ADDITIONAL SUPPORT

· Find support in the community, through friends and family, victims’ organizations, advocacy or community groups, religious organizations, legal groups, professional counseling, etc.

· Consider seeking legal representation.

· Remember, you can always contact 844-9-NO-HATE.

Section 21-6815 of the Kansas statutes permits a judge to depart from the presumptive sentence provided by the sentencing guidelines if the judge finds that “[t]he offense was motivated entirely or in part by the race, color, religion, ethnicity, national origin or sexual orientation of the victim or the offense was motivated by the defendant’s belief or perception, entirely or in part, of the race, color, religion, ethnicity, national origin or sexual orientation of the victim whether or not the defendant’s belief or perception was correct.”3

3 K.S.A. 21-6815(c)(2)(C).

Kansas’s hate crime law permits more severe sentencing for a defendant whose motivation for committing the offense was based entirely or in part by the victim’s actual or perceived:

· Race;

· Color;

· Religion;

· Ethnicity;

· National Origin; or

· Sexual Orientation.

Note: Sex, Gender Identity, and Physical Disability are not included categories within sentencing enhancements.

Kansas does not have a law that applies to personal attacks motivated by bias, prejudice, or hatred against a certain social group. However, Kansas’s battery statute covers these acts regardless of any hateful motive,4 and the aforementioned sentencing enhancement may result in an increased sentence if the crime was motivated by bias, prejudice, or hatred.5

Note that battery is a criminal law, and any claim under the law must be brought by a prosecutor.

4 K.S.A. 21-5413.

5 K.S.A. 21-6815(c)(2)(C).

Kansas does not have a law that applies to property damage motivated by bias, prejudice, or hatred against a certain social group. However, Kansas’s criminal damage to property statute covers these acts regardless of any hateful motive,6 and the aforementioned sentencing enhancement may result in an increased sentence if the crime was motivated by bias, prejudice, or hatred.7

Note that criminal damage to property is a criminal law, and any claim under the law must be brought by a prosecutor.

6 K.S.A. 21-5813.

7 K.S.A. 21-6815(c)(2)(C).

Kansas does not have a law that applies to desecration of a place of worship motivated by bias, prejudice, or hatred against a certain social group. However, Kansas’s criminal desecration statute covers these acts regardless of any hateful motive,8 and the aforementioned sentencing enhancement may result in an increased sentence if the crime was motivated by bias, prejudice, or hatred.9

Note that criminal desecration is a criminal law, and any claim under the law must be brought by a prosecutor.

8 K.S.A. 21-6205(a)(2)(D).

9 K.S.A. 21-6815(c)(2)(C).

Kansas does not have a law that applies to this type of intimidation. However, Kansas’s disorderly conduct statute may cover these acts regardless of whether the act was motivated by hatred towards a certain group,10 and the aforementioned sentencing enhancement may result in an increased sentence if the crime was motivated by bias, prejudice, or hatred.11

Note that disorderly conduct is a criminal law, and any claim under the law must be brought by a prosecutor.

10 K.S.A. 21-6203(a).

11 K.S.A. 21-6815(c)(2)(C).

You can contact the Kansas Attorney General’s Victim Services Division by Telephone: 1-877-828-9745; your local District Attorney’s Victim/Witness Program (county listing online at www.kssos.org/forms/communication/county.pdf), or the United States Attorney’s Office Victim/Witness Assistance Program in your district listing online. You can also contact the Stop Hate Hotline at 844-9-NO-HATE.

Kansas does not have a specific civil law by which people can sue for alleged hate crimes or hate incidents. However, other state laws may provide possible legal claims. For instance, tort claims, discussed below may provide relief.

There are a number of civil laws that you can use to bring a case against someone who physically or emotionally injured you, regardless of whether the act was a hate crime or hate incident. These civil causes of action are known as “torts.” A tort is a wrongful act that results in legal liability.

In Kansas, if someone intentionally injures you or your property, you may be able to sue that person for damages using any of the following tort causes of action:

· Assault – An assault is defined as “an intentional threat or attempt, coupled with apparent ability, to do bodily harm to another, resulting in immediate apprehension of bodily harm. No bodily contact is necessary.”12 An example of an assault is when someone uses a fake gun to threaten another.

· Battery – Battery is defined as “the unprivileged touching or striking of one person by another, done with the intent of bringing about either a contact or an apprehension of contact, that is harmful or offensive.”13 An example of a battery is when someone uses a real gun and shoots another. A less extreme example of a battery is when someone punches or kicks another.

· False Imprisonment – False imprisonment is defined as “any unlawful physical restraint by one of another’s liberty, whether in prison or elsewhere.”14 In other words, a person is falsely imprisoned if he is wrongfully deprived of his freedom to leave a particular place by the conduct of another. An example of false imprisonment would be if someone locked you in a room and you were unable to escape.

· Intentional Infliction of Emotional Distress (“IIED”) – IIED, also known as “Outrage,” is best defined by its elements. To bring an IIED claim, you must be able to show: (1) the conduct of the defendant was intentional or in reckless disregard of the plaintiff; (2) the conduct was extreme and outrageous; (3) there was a causal connection between the defendant’s conduct and the plaintiff’s mental distress; and (4) the plaintiff’s mental distress was extreme and severe.15

· Trespass to Land & Conversion – Trespass to land and conversion are causes of action used when another damages your real or personal property. A person commits trespass to land when he “enters the premises of another without any right, lawful authority, or express or implied invitation or license.”16 Conversion, on the other hand, applies to personal property and is defined as “unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another.”17

In addition, if you can prove that the defendant injured you or your property because of bias, prejudice, or hatred, you may be able to recover punitive damages. Punitive damages are damages awarded in addition to compensatory damages and are a form of punishment. In Kansas, you may be entitled to punitive damages if you can prove by clear and convincing evidence that the defendant acted toward you with “willful conduct,” “wanton conduct,” or “malice.”18 Malice is “a state of mind characterized by an intent to do a harmful act without a reasonable justification or excuse.”19

12 Baska v. Scherzer, 156 P.3d 617, 622 (Kan. 2007).

13 Baska v. Scherzer, 156 P.3d 617, 622 (Kan. 2007).

14 Brown v. State, 927 P.2d 938, 940 (Kan. 1996).

15 Miller v. Sloan, Listrom, Eisenbarth, Sloan & Glassman, 978 P.2d 922, 930 (Kan. 1999).

16 Armstrong v. Bromley Quarry & Asphalt, Inc., 378 P.3d 1090, 1095 (Kan. 2016).

17 Muhl v. Bohi, 152 P.3d 93, 101 (Kan. 2007).

18 K.S.A. 60-3702(c).

19 Saddlewood Downs, L.L.C. v. Holland Corp., 99 P.3d 640, 648 (Kan. Ct. App. 2004).

Contact your local bar association or 844-9-NO-HATE.

The following organizations are key providers of legal assistance for victims of hate crimes and discrimination:

1. Kansas Crime Victims Compensation Board

• Phone: (785) 296-2359
• www.ag.ks.gov/victim-services/victim-compensation

2. Your local County Attorney’s Office

• A directory of Kansas’s County Attorneys can be found at: www.kssos.org/forms/communication/county.pdf

If you would like additional information or help, please visit the Communities Against Hate resource page at www.communitiesagainsthate.org. If the information you are seeking is not on the resource page or if you need immediate help, please call 844-9-NO-HATE.