## Hate crimes in South Dakota **Hate crimes** are criminal offenses motivated by bias against the victim's actual or perceived membership in a protected category. State law adds an enhancement (extra penalty) on top of the underlying crime. ### South Dakota protected categories Race, ethnicity, religion, ancestry, national origin (limited). ## How hate crimes work Two main models: **Sentencing enhancement** — increases penalties for an underlying crime when motivated by bias. Most common approach. **Substantive hate-crime offense** — bias motivation creates a separate crime. Used in some states. Either way, prosecution must prove: 1. The underlying crime occurred 2. The defendant intentionally selected the victim because of (or with motivation by) protected-class membership 3. Sometimes specific intent or knowledge requirements ## Federal hate crime laws Beyond state law, federal hate crime laws apply: **Matthew Shepard / James Byrd Jr. Hate Crimes Prevention Act (2009)** — federal jurisdiction over hate crimes based on: - Race, color, religion, national origin - Gender, sexual orientation, gender identity - Disability **Civil Rights Act statutes** — additional federal hate-crime tools: - 18 U.S.C. § 245 — interference with federally protected activities - 18 U.S.C. § 247 — religious-property damage - 18 U.S.C. § 249 — Shepard-Byrd offenses - 42 U.S.C. § 3631 — fair housing crimes Federal prosecution typically reserved for cases state authorities won't or can't pursue effectively. ## Common hate-crime underlying offenses - Assault / battery - Intimidation / harassment / stalking - Vandalism / graffiti targeting - Cross-burnings - Burning religious symbols - Property destruction with bias motivation - Murder / manslaughter - Sexual assault - Threats by phone / text / online - Robbery - Cyber-bullying / online harassment ## Common defenses - **Lack of bias motivation** — bias not a substantial factor - **Underlying crime not proven** - **Wrong defendant identified** - **First Amendment issues** — hate speech alone not criminal; conduct + bias is - **Impulsive vs targeted** — random violence rather than selection-by-class - **Constitutional challenges** to specific statute ## First Amendment issues Hate crime laws survive First Amendment challenges because they target CONDUCT, not pure speech. Pure expressions of bias (offensive jokes, social-media posts, opinions) generally remain protected — though they may become evidence of motivation when paired with criminal acts. **True threats** and **incitement** are not protected and can be criminal in their own right. **Wisconsin v. Mitchell (1993)** upheld penalty-enhancement statutes; bias motivation is a constitutionally permissible sentencing factor. ## How prosecutors prove motivation - **Defendant's statements** during the crime (slurs, threats) - **Pre-crime statements** — communications, social media - **Affiliations** — extremist group membership - **Selection patterns** — only targeting members of one group - **Clothing / symbols** — patches, tattoos, gear - **Site of the crime** — synagogue, mosque, LGBTQ space - **Witness testimony** about defendant's expressed views ## Reporting hate crimes Victims and witnesses can report to: - Local law enforcement - State Attorney General - FBI (call FBI tip line for federal hate crimes) - State Civil Rights Commission - Anti-Defamation League (ADL) - Southern Poverty Law Center (SPLC) - Local civil-rights organizations ## Civil remedies for victims Beyond criminal prosecution, victims may have: - **Civil lawsuits** under 42 U.S.C. § 1983 (when state actor involved) or § 1981/1982 (private discrimination) - **State-law civil actions** for damages - **Anti-Klan Act claims** (42 U.S.C. § 1985(3)) for conspiracies - **Hate Crimes Statistics Act** civil enforcement - **Crime victim compensation funds** ## What you should do If you've been the victim of a hate crime in South Dakota: get medical care first, document everything (photos, screenshots, witness names), report to law enforcement and ask that bias motivation be specifically investigated, and contact civil-rights organizations for support. If you're charged with a hate crime: hire criminal-defense counsel IMMEDIATELY — these cases carry significant additional penalties and often draw heightened public attention. --- *This guide is general information about South Dakota and federal law as of early 2026 and is not legal advice. Hate crime law has expanded in many states recently. Talk to a licensed South Dakota attorney about your specific situation.*