Bill Summary – FastDemocracy

HOUSE BILL NO. 5288
     November 01, 2023, Introduced by Reps. Arbit, Grant and Puri and referred to the Committee on
       Criminal Justice.
          A bill to amend 1931 PA 328, entitled
    "The Michigan penal code,"
    by amending section 147b (MCL 750.147b), as added by 1988 PA 371.
                     THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
       Sec. 147b. (1) A person is guilty of ethnic intimidation a
 hate crime if that person maliciously , and with specific intent to
 intimidate or harass another person because of that person's race,
 color, religion, gender, or national origin, does any of the
 following:
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       (a) Causes physical contact with another person.
       (b) Damages, destroys, or defaces any real or personal
 property of another person.
       (c) Threatens, by word or act, to do an act described in
 subdivision (a) or (b), if there is reasonable cause to believe
 that an act described in subdivision (a) or (b) will occur.and
 intentionally does any of the following to an individual based in
 whole or in part on an actual or perceived characteristic of that
 individual listed under subsection (2), regardless of the existence
 of any additional motivating factors:
       (a) Uses force or violence on another individual.
       (b) Causes bodily injury to another individual.
       (c) Stalks another individual.
       (d) Damages, destroys, or defaces any real, personal, digital,
 or online property of another individual without the consent of
 that individual.
       (e) Threatens, by word or act, to do any of the actions
 described under subdivisions (a) to (d).
       (2) The actual or perceived characteristics of another
 individual referenced under subsection (1) include all of the
 following:
       (a) Race or color.
       (b) Religion.
       (c) Sex.
       (d) Sexual orientation.
       (e) Gender identity or expression.
       (f) Physical or mental disability.
       (g) Age.
       (h) Ethnicity.
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       (i) National origin.
       (j) Association or affiliation with an individual or group of
 individuals in whole or in part based on a characteristic described
 under subdivisions (a) to (i).
       (3) (2) Ethnic intimidation Except as provided in subsection
 (4), a person who violates subsection (1) is guilty of a felony
 punishable by imprisonment for not more than 2 5 years, or by a
 fine of not more than $5,000.00, or both.
       (4) If any of the following conditions apply, a person who
 violates subsection (1) is guilty of a felony punishable by
 imprisonment for not more than 10 years, or by a fine of not more
 than $10,000.00, or both:
       (a) The violation results in bodily injury.
       (b) The person has 1 or more prior convictions for violating
 subsection (1).
       (c) A victim of the violation of subsection (1) is less than
 18 years of age and the offender is at least 19 years of age.
       (d) The person commits the violation of subsection (1) in
 concert with 1 or more other individuals.
       (e) The person is in possession of a firearm during the
 commission of the violation of subsection (1).
       (5) If the prosecuting attorney intends to seek an enhanced
 sentence based upon the defendant having 1 or more prior
 convictions under subsection (4)(b), the prosecuting attorney shall
 include on the complaint and information a statement listing the
 prior conviction or convictions. The existence of the defendant's
 prior conviction or convictions must be determined by the court,
 without a jury, at sentencing or at a separate hearing for that
 purpose before sentencing. The existence of a prior conviction may
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 be established by any evidence relevant for that purpose,
 including, but not limited to, 1 or more of the following:
       (a) A copy of the judgment of conviction.
       (b) A transcript of a prior trial, plea-taking, or sentencing.
       (c) Information contained in a presentence report.
       (d) The defendant's statement.
       (6) In lieu of or in addition to the penalties described in
 subsection (3), the court may, if the defendant consents, impose an
 alternative sentence described under this subsection. In
 determining the suitability of an alternative sentence described
 under this subsection, the court shall consider the criminal
 history of the offender, the impact of the offense on the victim
 and wider community, the availability of the alternative sentence,
 and the nature of the violation. An alternative sentence may, if
 the entity chosen for community service is amenable, include an
 order requiring the offender to complete a period of community
 service intended to enhance the offender's understanding of the
 impact of the offense upon the victim and wider community.
       (7) The court may, if the defendant consents, reduce any
 penalty imposed under subsection (4) by not more than 20%, and
 impose an alternative sentence described under this subsection. In
 determining the suitability of an alternative sentence described
 under this subsection, the court shall consider the criminal
 history of the offender, the impact of the offense on the victim
 and wider community, the availability of the alternative sentence,
 and the nature of the violation. An alternative sentence may, if
 the entity chosen for community service is amenable, include an
 order requiring the offender to complete a period of community
 service intended to enhance the offender's understanding of the
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 impact of the offense upon the victim and wider community.
       (8) The court may order a sentence imposed for a violation of
 this section be served consecutively to a sentence imposed for any
 other crime including any other violation of law arising out of the
 same transaction as the violation of this section.
       (9) (3) Regardless of the existence or outcome of any criminal
 prosecution, a person an individual who suffers bodily injury to
 his or her person or damage to his or her the individual's property
 as a result of ethnic intimidation a hate crime may bring a civil
 cause of action against the person who commits the offense to
 secure an injunction, actual damages, including damages for
 emotional distress, or other appropriate relief. A plaintiff who
 prevails in a civil action brought pursuant to under this section
 may recover both of the following:
       (a) Damages in the amount of 3 times the actual damages
 described in this subsection or $2,000.00, $25,000.00, whichever is
 greater.
       (b) Reasonable attorney fees and costs.
       (10) This section does not enjoin any individual's exercise of
 the constitutional right to free speech.
       (11) As used in this section, "stalk" means stalking as that
 term is defined in section 411h. Stalk does not include either of
 the following:
       (a) Constitutionally protected free speech.
       (b) Any other constitutionally protected activity or conduct
 not described under subdivision (a) that serves a legitimate
 purpose.
       (12) Absent the concurrent commission of conduct violating
 subsection (1), the act of intentionally or unintentionally
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 referencing or referring to another individual by using pronouns
 that are perceived to be incorrect or nonpreferred by that
 individual does not constitute a hate crime.
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Statutes affected: 
House Introduced Bill: 750.147