Hate Crimes in Massachusetts (G.L. c. 265, § 39): Penalties & Defenses

A hate crime in Massachusetts is an assault, a battery, or damage to property committed with the intent to intimidate someone because of their race, color, religion, national origin, sexual orientation, gender identity, or disability. The law is G.L. c. 265, § 39. It turns conduct that would otherwise be an assault and battery or vandalism charge into a more serious offense, and a battery that causes bodily injury becomes a felony.

What the Law Covers

Section 39(a) covers three kinds of conduct: an assault on a person, a battery on a person, or damage to a person’s real or personal property. What makes any of them a hate crime is the reason behind it. The Commonwealth must prove you acted with the intent to intimidate the person because of one of the characteristics the statute lists:

• race or color;
• religion;
• national origin;
• sexual orientation;
• gender identity; or
• disability, which means “handicap” as defined in G.L. c. 151B, § 1(17), but does not include a condition caused mainly by the use of alcohol or a controlled substance.

Ordinary malicious destruction of property or assault and battery does not require proof of any motive. Section 39 does.

What the Commonwealth Must Prove

Under the Massachusetts District Court model jury instructions (Instructions 6.205, 6.206, and 6.207), the Commonwealth must prove beyond a reasonable doubt that:

• you committed an assault, a battery, or damage to the real or personal property of another person; and
• you did so with the specific intent to intimidate that person because of their race, color, religion, national origin, sexual orientation, gender identity, or disability.

For the felony under § 39(b), the Commonwealth must also prove that a battery resulted in bodily injury.

The protected characteristic does not have to be the only reason. In Commonwealth v. Kelly, 470 Mass. 682 (2015), the SJC held that it is enough if you acted “because of” the person’s race, even if other motives were also present. Intent is usually proved through circumstantial evidence, such as words used, symbols or slurs left at the scene, and the target chosen.

What Is “Bodily Injury”?

Section 39 defines bodily injury as a substantial impairment of the physical condition, including a burn, a broken bone, a subdural hematoma, an injury to an internal organ, or an injury that results from repeated harm to a bodily function or organ, including the skin. Not every injury qualifies. In Commonwealth v. Sudler, 94 Mass. App. Ct. 150 (2018), the Appeals Court held that cuts to the victim’s fingers were not bodily injury under § 39(b) and reduced the conviction to the § 39(a) misdemeanor.

Penalties

• § 39(a): up to 2½ years in a house of correction, a fine of up to $5,000, or both. The court may also order restitution of up to three times the value of the property damage.
• § 39(b), battery causing bodily injury: up to 5 years in state prison, a fine of up to $10,000, or both.
• § 39(b) while armed with a firearm: up to 10 years in state prison or 2½ years in a house of correction.

A conviction also brings a $100 surcharge on any fine, and you must complete a state-approved diversity awareness program before your release or the end of your probation.

Hate Crime vs. Civil Rights Violation

A related but separate statute, G.L. c. 265, § 37, makes it a crime to use force or the threat of force to willfully injure, intimidate, interfere with, oppress, or threaten someone in the free exercise of a right secured by the state or federal constitution or laws. It carries up to 1 year and a $1,000 fine, or up to 10 years and a $10,000 fine if bodily injury results. It does not require a protected characteristic. See our post on civil rights violations.

Defenses

• No bias-based intent: the conduct may have come from a personal dispute, anger, or an accident, not intent to intimidate because of a protected characteristic.
• Underlying act not proved: if there was no assault, battery, or damage, there is no § 39 offense. Self-defense applies to the assault and battery charge.
• No bodily injury: for a § 39(b) felony, the injury must be a substantial impairment, not a minor cut or bruise.
• Identification: graffiti and property damage cases often depend on who actually did it.
• Words alone: § 39 requires an assault, battery, or property damage. Offensive speech by itself is not a § 39 offense.

Why a Lawyer Matters

A hate crime charge carries a stigma that goes beyond the underlying act, and the case almost always turns on intent. A lawyer can challenge how the Commonwealth tries to prove motive, test whether an injury meets the statute’s definition, and keep a misdemeanor from being treated as a felony. Attorney William J. Barabino has defended criminal cases for 23 years. Call 781-393-5900.

Related Charges

• Civil rights violations (G.L. c. 265, § 37): using force or threats to interfere with someone’s rights.
• Assault and battery (G.L. c. 265, § 13A): the underlying offense in many hate crime cases.
• Vandalism and malicious destruction of property: property damage without a bias motive.
• Threatening to commit a crime (G.L. c. 275, § 2): threats that do not involve physical contact or damage.
• Intimidating a witness (G.L. c. 268, § 13B): a different kind of intimidation charge.

Disclaimer

This article is for general educational information about Massachusetts criminal law. It is not legal advice for your situation, and reading it does not create an attorney-client relationship. Laws change. For advice about a specific case, speak with a licensed Massachusetts attorney.