S3706

An Act concerning bias intimidation, and amending P.L.2001, c.443.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. (New section) The Legislature finds and declares that:

a. Bias intimidation and bias crimes are particularly offensive to society not only because they are criminal acts, but specifically because they are criminal acts motivated by discrimination and hatred on the basis of the victim’s race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.

b. Perpetrators of bias crimes often manifest their motivations through the use of certain symbols that have a “long and pernicious history as a signal of impending violence” or as a “symbol of hate,” as recognized by the U.S. Supreme Court in Virginia v. Black, 538 U.S. 343 (2003).

c. In the context of bias crimes, it is well documented that displaying a noose is intended to convey an unmistakable message of intimidation, fear, and racial hatred, by evoking the history of the vigilante murder of African Americans, which was commonly carried out through lynchings or hangings.

d. Relatedly, it is also well documented that displays of Confederate symbols are intended to convey an unmistakable refusal to acknowledge the defeat of the Confederacy following the Civil War, and to evoke the racist foundation of the Confederacy in the chattel slavery of African Americans and the desire to return to the era of legalized slavery and racial segregation.

e. Additionally, it is well documented that displays of Nazi symbols are intended to convey an unmistakable message of intimidation, fear, and genocidal hatred, by evoking the history of Nazi Germany and its racist foundation of fascism and anti-Semitism, as demonstrated by the Holocaust.

f. The Legislature therefore determines that the use of such symbols of hate in connection with the commission of bias intimidation shall be an aggravating factor deserving of enhanced punishment under State law.

2. Section 1 of P.L.2001, c.443 (C.2C:16-1) is amended to read as follows:

2C:16-1. Bias Intimidation.

a. Bias Intimidation. A person is guilty of the crime of bias intimidation if he commits, attempts to commit, conspires with another to commit, or threatens the immediate commission of an offense specified in chapters 11 through 18 of Title 2C of the New Jersey Statutes; N.J.S.2C:28-4; N.J.S.2C:33-4; N.J.S.2C:39-3; N.J.S.2C:39-4; or N.J.S.2C:39-5,

(1) with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or

(2) knowing that the conduct constituting the offense would cause an individual or group of individuals to be intimidated because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or

(3) under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim’s property was selected to be the target of the offense because of the victim’s race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.

b. (1) Permissive inference concerning selection of targeted person or property. Proof that the target of the underlying offense was selected by the defendant, or by another acting in concert with the defendant, because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity shall give rise to a permissive inference by the trier of fact that the defendant acted with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.

(2) Permissive inference concerning use of certain symbols. Proof that the defendant, in the course of committing the underlying offense, possessed, used, or displayed an image or physical or visual representation of a noose; any symbol, insignia, emblem, banner, slogan, or flag of the National Socialist German Workers’ Party or its purported successor; or any symbol, insignia, emblem, banner, slogan, or flag of the Confederate States of America, shall give rise to a permissive inference by the trier of fact that the defendant knew or should have known that the defendant’s conduct would cause an individual or group of individuals to be intimidated because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.

c. Grading. Bias intimidation is a crime of the fourth degree if the underlying offense referred to in subsection a. is a disorderly persons offense or petty disorderly persons offense. Otherwise, bias intimidation is a crime one degree higher than the most serious underlying crime referred to in subsection a., except that where the underlying crime is a crime of the first degree, bias intimidation is a first-degree crime and the defendant upon conviction thereof may, notwithstanding the provisions of paragraph (1) of subsection a. of N.J.S.2C:43-6, be sentenced to an ordinary term of imprisonment between 15 years and 30 years, with a presumptive term of 20 years.

d. Gender exemption in sexual offense prosecutions. It shall not be a violation of subsection a. if the underlying criminal offense is a violation of chapter 14 of Title 2C of the New Jersey Statutes and the circumstance specified in paragraph (1), (2) or (3) of subsection a. of this section is based solely upon the gender of the victim.

e. Merger. Notwithstanding the provisions of N.J.S.2C:1-8 or any other provision of law, a conviction for bias intimidation shall not merge with a conviction of any of the underlying offenses referred to in subsection a. of this section, nor shall any conviction for such underlying offense merge with a conviction for bias intimidation. The court shall impose separate sentences upon a conviction for bias intimidation and a conviction of any underlying offense.

f. Additional Penalties. (1) In addition to any fine imposed pursuant to N.J.S.2C:43-3 or any term of imprisonment imposed pursuant to N.J.S.2C:43-6, a court may order a person convicted of bias intimidation to one or more of the following:

[(1)] (a) complete a class or program on sensitivity to diverse communities, or other similar training in the area of civil rights;

[(2)] (b) complete a counseling program intended to reduce the tendency toward violent and antisocial behavior; and

[(3)] (c) make payments or other compensation to a community-based program or local agency that provides services to victims of bias intimidation.

(2) In addition to any fine imposed pursuant to N.J.S.2C:43-3, any term of imprisonment imposed pursuant to N.J.S.2C:43-6, or any additional penalty imposed pursuant to paragraph (1) of this subsection, in cases where proof of the use of a symbol has been shown pursuant to paragraph (2) of subsection b. of this section, a court shall order a person convicted of bias intimidation to the following:

(a) for a first conviction, a $20,000 fine and completion of class or program on the history of the use of such symbols in relation to bias intimidation; and

(b) for a second or subsequent conviction, notwithstanding the provisions of section 7 of P.L.1979, c.441 (C.30:4-123.51), an additional period of six months before the person may become primarily eligible for parole.

g. As used in this section “gender identity or expression” means having or being perceived as having a gender related identity or expression whether or not stereotypically associated with a person’s assigned sex at birth.

h. It shall not be a defense to a prosecution for a crime under this section that the defendant was mistaken as to the race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity of the victim.

(cf: P.L.2020, c.73, s.1)

3. Section 2 of P.L.2007, c.49 (C.43:1-3.1) is amended to read as follows:

2. a. A person who holds or has held any public office, position, or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof, who is convicted of any crime set forth in subsection b. of this section, or of a substantially similar offense under the laws of another state or the United States which would have been such a crime under the laws of this State, which crime or offense involves or touches such office, position or employment, shall forfeit all of the pension or retirement benefit earned as a member of any State or locally-administered pension fund or retirement system in which he participated at the time of the commission of the offense and which covered the office, position or employment involved in the offense. As used in this section, a crime or offense that “involves or touches such office, position or employment” means that the crime or offense was related directly to the person’s performance in, or circumstances flowing from, the specific public office or employment held by the person.

b. Subsection a. of this section applies to a conviction of any of the following crimes:

(1) Paragraph (4) of subsection a. of N.J.S.2C:13-5, criminal coercion;

(2) N.J.S.2C:20-4, theft by deception, if the amount involved exceeds $10,000;

(3) Subsection d. of N.J.S.2C:20-5, theft by extortion;

(4) N.J.S.2C:20-9, theft by failure to make required disposition of property received, if the amount involved exceeds $10,000;

(5) N.J.S.2C:21-10, commercial bribery;

(6) Section 3 of P.L.1994, c.121 (C.2C:21-25), money laundering;

(7) Section 97 of P.L.1999, c.440 (C.2C:21-34), false contract payment claims;

(8) N.J.S.2C:27-2, bribery in official matters;

(9) N.J.S.2C:27-3, threats and other improper influence in official and political matters;

(10) Section 100 of P.L.1999, c.440 (C.2C:27-9), unlawful official business transaction where interest is involved;

(11) Section 5 of P.L.2003, c.255 (C.2C:27-10), acceptance or receipt of unlawful benefit by public servant for official behavior;

(12) Section 6 of P.L.2003, c.255 (C.2C:27-11), offer of unlawful benefit to public servant for official behavior;

(13) N.J.S.2C:28-1, perjury;

(14) N.J.S.2C:28-5, tampering with witnesses;

(15) N.J.S.2C:28-7, tampering with public records or information;

(16) N.J.S.2C:29-4, compounding;

(17) N.J.S.2C:30-2, official misconduct;

(18) N.J.S.2C:30-3, speculating or wagering on official action or information;

(19) Section 3 of P.L.2003, c.31 (C.2C:30-7), pattern of official misconduct;

(20) Paragraph (1) of subsection a. of section 1 of P.L.2007, c.158 (C.2C:27-12), corruption of public resources, if the amount or value of the public resource is $500,000 or more;

(21) N.J.S.2C:14-2, sexual assault;

(22) N.J.S.2C:14-3, sexual contact; [or]

(23) N.J.S.2C:14-4, lewdness;

(24) Section 1 of P.L.2001, c.443 (C.2C:16-1), bias intimidation; or

(25) Section 2 of P.L.2003, c.31 (C.2C:30-6), official deprivation of civil rights.

c. A court of this State shall enter an order of pension forfeiture pursuant to this section:

(1) Immediately upon a finding of guilt by the trier of fact or a plea of guilty entered in any court of this State unless the court, for good cause shown, orders a stay of the pension forfeiture pending a hearing on the merits at the time of sentencing; or

(2) Upon application of the county prosecutor or the Attorney General, when the pension forfeiture is based upon a conviction of an offense under the laws of another state or of the United States. An order of pension forfeiture pursuant to this paragraph shall be deemed to have taken effect on the date the person was found guilty by the trier of fact or pled guilty to the offense.

d. No court shall grant a stay of an order of pension forfeiture pending appeal of a conviction or pension forfeiture order unless the court is clearly convinced that there is a substantial likelihood of success on the merits. If the conviction be reversed or the order of pension forfeiture be overturned, his pension rights and benefits shall be restored from the date of pension forfeiture.

e. Nothing in this section shall be deemed to preclude the authority of the board of trustees of any State or locally-administered pension fund or retirement system created under the laws of this State from ordering the forfeiture of all or part of the earned service credit or pension or retirement benefit of any member of the fund or system for misconduct occurring during the member’s public service pursuant to the provisions of P.L.1995, c.408 (C.43:1-3 et seq.), including in a case where the court does not enter an order of forfeiture pursuant to this section.

(cf: P.L.2019, c.190, s.1).

4. This act shall take effect immediately.

STATEMENT

This bill amends the State bias intimidation statute, N.J.S.A.2C:16-1, to establish a presumption of knowledge that the display of a noose or a Nazi or Confederate symbol would cause bias intimidation.

Under current law, bias intimidation occurs if a person commits or attempts to commit certain specified crimes, including, but not limited to, murder, assault, or harassment, either (1) with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or (2) knowing that the conduct constituting the underlying crime would cause an individual or group of individuals to be intimidated because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.

Under current law, a jury can infer the defendant’s bias intent if there is proof shown that the defendant selected the victim because of the victim’s race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.

Under current law, bias intimidation is charged as a separate crime, and is generally charged one degree higher than that of the underlying crime. Bias intimidation is also subject to certain enhanced penalties, including certain mandatory terms of imprisonment.

Under the bill, a jury could also infer the defendant knew that their conduct in committing the underlying crime would cause an individual or group of individuals to be intimidated because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, where proof is shown that the defendant possessed, used, or displayed an image or physical or visual representation of a noose; any symbol, insignia, emblem, banner, slogan, or flag of the Nazi Party or its purported successor; or any symbol, insignia, emblem, banner, slogan, or flag of the Confederate States of America.

Under the bill, a person convicted of bias intimidation while using such symbols would, in addition to existing penalties, also be subject to a sentencing enhancement of an additional $20,000 fine and completion of a course on the history of hate symbols, and, for a second or subsequent offense, an additional six months of parole ineligibility. The bill also adds bias intimidation and official deprivation of civil rights to the list of crimes for which, if committed by a public employee, a conviction will result in pension forfeiture.