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.
The Effect on the Term of the Sentence
Under the third part of Article 53-1, where an aggravating circumstance provided for by the first or the second part exists at the time of the commission of the crime, upon the imposition of imprisonment the term of the sentence to be served must exceed by at least 1 year the minimum term of the sentence provided for by the relevant article or part of an article of the Code for the crime committed.
In the case of the circumstance connected with the involvement of minors the rule is stricter: the term must again exceed the minimum term by at least 1 year, and where the minor is a person under the age of fourteen, the term of the sentence must not be less than two-thirds of the maximum term of the relevant sentence. This means that for the defense the correct classification of each aggravating circumstance directly affects the term to be served.
Limits of Application and the Defense Strategy
The fourth part of Article 53-1 regulates the limits of the application of these rules: where an article or part of an article of the special part of the Code refers to a circumstance provided for by the first or the second part of this article as a qualifying sign of the crime, and likewise where separate grounds provided for by other norms of the Code exist, the rules on the increase of the term are not applied at sentencing. This detail of the classification often remains unnoticed, although its accuracy affects the sentence.
The defense strategy in such cases therefore operates on three levels: first, examining the sources on the basis of which the motive is established, since the prosecution must prove the motive of intolerance and the defense does not have to disprove it in advance; second, separating the aggravating circumstances from one another so that one and the same fact is not counted twice; third, verifying the applicability of the rule on the increase of the term, including the cases where the sign is already qualifying or other statutory grounds exist.
Frequently Asked Questions
Is a hate crime a separate crime in Georgia?
No. Under Article 53-1 of the Criminal Code, a crime committed with an intolerance motive is an aggravating circumstance of liability for all corresponding crimes, not a separate offence.
Which grounds make a crime hate-motivated?
They include 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 and another discriminatory sign.
How does this circumstance affect the sentence?
Upon the imposition of imprisonment the term to be served must exceed by at least 1 year the minimum term provided for the crime. In cases involving minors under fourteen, the rule is stricter — the term must not be less than two-thirds of the maximum term.
Who must establish the motive of intolerance?
The aggravating circumstance must be established by the materials of the case — its existence must rest on evidence, and the defense is entitled to challenge every evidentiary source of the motive.
Is the rule on increasing the term always applied?
No. Where the special part of the Code already treats the circumstance as a qualifying sign of the crime, or where separate grounds provided for by other norms of the Code exist, the rule on increasing the term is not applied at sentencing.
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