July 24th, 2025

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Property Hate Crimes in Massachusetts: Understanding G.L. c. 265, § 39 and Your Rights

In Massachusetts, not every act of vandalism or property damage is treated the same under the criminal law. When the destruction or defacement of property is motivated by bias against a person’s identity, the offense can be charged as a hate crime under General Laws Chapter 265, Section 39. This statute elevates ordinary property damage into a more serious charge that carries significant penalties, including potential jail time, substantial fines, and restitution orders of up to three times the value of the damage.

For individuals accused of property-related hate crimes, the stakes are high. A conviction can result in a permanent criminal record, collateral consequences affecting employment, housing, professional licenses, immigration status, and even firearms rights. Understanding the precise elements of the offense, how prosecutors attempt to prove intent, and the available defenses is essential. This expanded guide explains Massachusetts property hate crime law in clear terms so that defendants and their families can make informed decisions.

When Is Property Damage Considered a Hate Crime in Massachusetts?

Under G.L. c. 265, § 39(a), damaging someone’s real or personal property becomes a hate crime when it is done with the specific intent to intimidate that person because of a protected characteristic. The statute covers both physical attacks on people and damage to property, but this article focuses on the property-damage prong.

To convict a defendant, the Commonwealth must prove two elements beyond a reasonable doubt:

The defendant damaged the real or personal property of another person; and
The defendant did so with the intent to intimidate that person because of the person’s race, color, religion, national origin, sexual orientation, gender identity, or disability.

The key distinguishing feature is the bias motivation. Ordinary vandalism or malicious destruction of property under G.L. c. 266, § 127 does not require proof of any particular motive related to identity. The hate crime statute adds the requirement that the damage was committed at least in part to intimidate based on a protected trait.

What Counts as Property Damage Under the Statute?

The statute reaches a wide range of conduct. Any intentional damage to real property (land, buildings, fixtures) or personal property (vehicles, signs, personal belongings, religious symbols, or other objects) can qualify. The monetary value of the property is not an element of the offense under § 39(a). Whether the damage involves spray-painting a slur on a garage door, breaking a window of a religious institution, keying a car, or destroying a display, the statute may apply if the bias-intent element is met.

Importantly, the property must belong to “a person.” Courts and prosecutors interpret this to mean that the property is associated with an individual or group the defendant intended to intimidate. There has been legislative discussion about clarifying situations involving rented property, where the target of the intimidation may not be the legal owner. As of the current statute, prosecutors still pursue charges when the clear intent is to intimidate the occupants or users of the property based on a protected characteristic.

What Is “Intent to Intimidate” and How Do Jurors Decide?

“Intimidate” means to make someone feel afraid, threatened, or unwelcome. Critically, the Commonwealth does not need to prove that the victim actually experienced fear or intimidation. The focus is on the defendant’s state of mind—whether the defendant intended, by damaging the property, to create that effect because of the victim’s (or perceived) protected characteristic.

Jurors are instructed to consider the totality of the circumstances, including:

Statements made by the defendant before, during, or after the incident;
Symbols, graffiti, or messages left on the property (slurs, hate symbols, religious or racial epithets);
The nature and location of the damage (e.g., targeting a house of worship, a rainbow flag, or a home associated with a particular community);
Prior similar conduct or expressed biases;
Any other circumstantial evidence that sheds light on motive.

Massachusetts Model Jury Instruction 6.207 provides detailed guidance to judges and juries on how these elements must be proven. Because intent is often inferred rather than proven by direct confession, the defense frequently focuses on challenging the interpretation of the evidence and offering alternative explanations for the conduct.

Who Is Protected Under This Law?

The statute specifically protects individuals from being targeted because of the following characteristics:

Race — including traits historically associated with race, such as hair texture or protective hairstyles.
Color
Religion
National origin
Sexual orientation — including heterosexuality, homosexuality, and bisexuality.
Gender identity — a person’s internal sense of their own gender, and the expression of that identity through appearance or behavior.
Disability — defined consistently with the concept of “handicap” under G.L. c. 151B, § 1(17). It does not include conditions primarily resulting from the current illegal use of alcohol or controlled substances.

Note that the statute does not currently list “gender” (as distinct from gender identity) or “ethnicity” as separate categories in the same way some federal definitions do, though race, national origin, and related traits often overlap with ethnicity in practice.

What If the Victim Is Not Actually a Member of the Targeted Group?

The law protects people based on actual or perceived membership in a protected category. If a defendant damages property because of a mistaken belief that the victim belongs to a particular group, the statute still applies. For example, if someone vandalizes a home believing the occupants are Jewish (or Muslim, or LGBTQ+, etc.) and leaves a message reflecting that bias, the offense can be charged even if the occupants do not identify with the targeted group. The focus remains on the defendant’s intent and the bias motivation, not on the accuracy of the defendant’s perception.

What If Bias Was Only One of Several Motives?

Prejudice does not need to be the sole or even the dominant motive. Massachusetts appellate authority and jury instructions make clear that the bias motivation need only be a contributing factor. Even if anger over a neighborhood dispute, personal animosity, or other emotions played a role, a partial bias-based motive is sufficient to satisfy the statute. This “at least in part” standard makes the intent element easier for the prosecution to prove in some cases and correspondingly more important for the defense to challenge with alternative explanations.

Penalties for a Conviction Under G.L. c. 265, § 39(a)

A person convicted of property damage as a hate crime under § 39(a) faces:

A fine of not more than $5,000;
Imprisonment in a house of correction for not more than two and one-half years; or
Both a fine and imprisonment.

In addition, the court may order restitution to the victim in an amount up to three times the value of the property damage. This treble-restitution provision can significantly increase the financial consequences of a conviction.

Note that subsection (b) of the same statute addresses battery resulting in bodily injury and carries more severe felony-level penalties (up to five years in state prison, or ten years if armed with a firearm). Property-only cases typically remain under the misdemeanor-level penalties of subsection (a), but the presence of any physical injury can escalate the charge dramatically.

How Property Hate Crimes Differ from Ordinary Malicious Destruction

Many defendants charged under § 39 are also charged, or could alternatively be charged, under G.L. c. 266, § 127 (willful and malicious destruction of or injury to property). The key differences are:

Motive: Ordinary malicious destruction requires willful and malicious conduct but does not require proof of bias or intent to intimidate based on identity.
Value threshold: Under § 127, the value of the damaged property can determine whether the offense is a misdemeanor or a felony (over $1,200 in some formulations historically, though current thresholds should be verified). Section 39(a) has no value element.
Penalty structure and stigma: A hate-crime conviction carries greater social stigma and may be treated more severely in sentencing, probation conditions, and collateral consequences.

In some cases, skillful defense advocacy can result in the reduction or dismissal of the hate-crime enhancement, leaving a more manageable ordinary property-damage charge.

Potential Defenses to a Property Hate Crime Charge

Every case is fact-specific, but common defense themes include:

Lack of intent to intimidate — The damage was accidental, reckless, or motivated by non-bias reasons (dispute over parking, personal grudge unrelated to identity, youthful vandalism without bias, etc.).
Absence of bias motivation — Even if the defendant damaged the property, there is insufficient evidence that any protected characteristic played a role in the decision.
Mistaken identity or lack of connection to the property — Challenges to whether the defendant is the person who caused the damage, or whether the property is properly linked to a protected individual.
First Amendment considerations — Purely expressive conduct that does not constitute true threats or unprotected intimidation may raise constitutional issues, though the Supreme Court and Massachusetts courts have upheld carefully drawn hate-crime statutes that target conduct rather than mere speech.
Procedural and evidentiary challenges — Suppression of statements, challenges to search warrants, reliability of witness identification, chain of custody of physical evidence, or improper jury instructions.

An experienced criminal defense attorney will thoroughly investigate the facts, obtain discovery, interview witnesses, and evaluate whether the Commonwealth can meet its burden on every element.

Collateral Consequences of a Conviction

Beyond the direct penalties, a conviction under the hate crime statute can affect:

Employment and professional licensing (many employers and licensing boards view hate-crime convictions particularly seriously);
Housing opportunities and landlord screening;
Immigration status for non-citizens;
Firearm licensing and possession rights in Massachusetts;
Educational opportunities and campus discipline;
Reputation and community standing.

Because these consequences can last far longer than any sentence of incarceration or probation, early intervention by counsel is critical.

Context: Property Damage as a Common Form of Reported Hate Crime

According to recent Massachusetts hate crime reporting data, vandalism, damage, and destruction of property consistently rank among the most frequently reported bias-motivated offenses. In many annual reports, property damage accounts for a substantial percentage of all reported hate crime incidents—often more than one-third. This reflects both the relative ease of committing such acts and the symbolic power of targeting someone’s home, place of worship, vehicle, or community symbols.

While statistics provide context, every individual case must be judged on its own facts. The existence of a broader societal problem does not relieve the Commonwealth of its burden to prove the specific elements of the charged offense beyond a reasonable doubt in any particular prosecution.

Frequently Asked Questions

Is a hate crime charge always a felony?

No. Property damage under G.L. c. 265, § 39(a) is generally punishable by up to 2½ years in the house of correction (a misdemeanor-level penalty in Massachusetts terminology), although the stigma and collateral effects can be severe. Cases involving bodily injury under subsection (b) can be felonies.

Can the charge be reduced or dismissed?

Yes. Through negotiation, motions practice, or trial, it is sometimes possible to resolve the case as ordinary malicious destruction, a lesser offense, or even obtain a dismissal or pretrial diversion in appropriate circumstances. Success depends heavily on the strength of the evidence of bias intent and the quality of the defense investigation.

Do I have to speak to the police or prosecutors?

No. You have a constitutional right to remain silent and to have an attorney present. Statements made without counsel can be used to prove intent and motive. Contact a defense attorney before answering questions.

What should I do if I or a loved one has been charged?

Preserve any evidence that may help the defense (texts, videos, alibi witnesses, photographs of the scene). Do not contact alleged victims or witnesses. Contact an experienced Massachusetts criminal defense attorney immediately to protect your rights and begin building a defense strategy.

Why You Need an Experienced Criminal Defense Attorney

Hate crime allegations are emotionally charged and often attract significant attention from prosecutors, the media, and the community. The legal and factual issues—particularly the proof of specific intent to intimidate based on a protected characteristic—require careful analysis. An attorney who regularly handles criminal defense matters in Massachusetts courts understands how these cases are investigated, charged, and tried; knows the local practices of district attorneys’ offices; and can identify weaknesses in the Commonwealth’s proof of motive and intent.

Early involvement of counsel can also position the case for the most favorable possible resolution, whether through negotiation, diversion, motion practice, or trial.

Contact Criminal Defense Attorney William J. Barabino

If you or a loved one has been charged with, or is under investigation for, a property hate crime or any other criminal offense in Massachusetts, do not navigate the system alone. The Law Office of William J. Barabino provides experienced, client-focused criminal defense representation.

Before you speak with police or prosecutors, contact an experienced criminal defense attorney to protect your rights.

Call 781-393-5900 today to schedule a confidential consultation and learn more about the defenses available in your case.

Visit williambarabino.com for additional resources and information about Massachusetts criminal law.

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