A recent news article reported that three people had been arrested on charges of robbing patrons in the parking lots of two bars in Phoenix. In each case, there were no injuries. The suspects allegedly approached the people and robbed them at gunpoint. All three (two adults and a juvenile) were charged with robbery, kidnapping and aggravated assault.

The events were not particularly newsworthy, except for the fact that both the bars cater to the LGBT community. Each of the news reports we saw contained a headline stating that the suspects denied the robberies were hate crimes. So just what is a hate crime in Arizona, and what does that designation mean in a criminal case?

Hate Crime Felonies in Arizona

Theoretically, at least, any felony in Arizona can be designated as a hate crime, provided that it was motivated by “malice” because the victim is identified (or perceived by the defendant to be identified) by race, color, religion, sexual orientation, disability, gender or national origin. A.R.S. 13-701D15 says that if the jury (or the judge in a bench trial) finds that such malice existed, it is an aggravating factor for sentencing purposes.

As an example, armed robbery is a class 2 felony. For a first time offender, the presumptive sentence is 5 years in prison. While ordinarily the maximum punishment is 10 years, a defendant could be sentenced to 12.5 years based upon the presence of an aggravating factor.

Phoenix Gay Bar Robberies – Hate Crimes or Not?

An important aspect of the hate crime issue is that although a victim’s sexual orientation may be relevant to show the motivation of a defendant, the hate crime designation hinges entirely on the defendant’s state of mind, that is, his or her motivation in committing the underlying offense. And neither hate nor malice is required, just motivation.

As a result, if it is found that the bar patrons were targeted because of their perceived sexual orientation, a hate crime was committed, even if in fact the victims were neither gay nor members of any other protected group. Conversely, if the victims were gay, but their sexual orientation was not a motivating factor in the commission of the offense, there was no hate crime.