Hate Crime as an Aggravating Circumstance
Under Article 53-1 of the Criminal Code of Georgia, the commission of a crime motivated by intolerance is an aggravating circumstance of liability for all corresponding crimes provided for by the Code. A hate-motivated offence is therefore not a separate offence: it is an aggravating circumstance applied on the basis of general provisions, and that is precisely why the establishment of the motive is decisive for the defense.
It follows from the nature of an aggravating circumstance that it can be applied only where it is established by the materials of the case. The accusation must rest on evidence that confirms precisely the motive of intolerance and not on a general assumption about it; otherwise the circumstance must be excluded from the determination of the sentence.
The Signs of an Intolerance Motive
The first part of Article 53-1 lists the grounds that create the motive of intolerance: the commission of a crime on the grounds of race, skin color, language, sex, sexual orientation, intolerance of the equality of women and men, age, religion, political or other views, disability, citizenship, national, ethnic or social affiliation, origin, property or class status, place of residence or another discriminatory sign.
This list is broad, and each of its elements is a separate subject of proof: establishing the motive does not follow merely from the fact that the victim belonged to a particular group — what must be established is that the crime rested precisely on that affiliation. From the defense perspective, this allows a different — personal, property-related or other — context of the conflict to be distinguished from the motive.
Other Aggravating Circumstances and the Involvement of Minors
The second part of Article 53-1 defines aggravating circumstances that operate independently of the intolerance motive: the commission of a crime by one member of a family against another member of the family, against a person in a helpless state, against a minor or in the presence of a minor, with particular cruelty, with the use of a weapon or with the threat of the use of a weapon, or by using an official position. These circumstances likewise apply to all corresponding crimes, and each of them must be proven separately.
A separate aggravating circumstance concerns the involvement of minors: the participation of a person of full legal age in the commission of a crime together with a minor with prior knowledge, or the involvement of a minor in the commission of a crime by a person of full legal age with prior knowledge. This circumstance is connected with a special rule on the term of the sentence, discussed below.