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House lawmakers Tuesday gave final approval to legislation that would broaden the legal definition of a hate crime.

Attorney General Charity Clark says has prevented courts and prosecutors from pursuing hate crime charges in instances that warrant the enhanced penalties. Since the law requires members of a protected class to be direct victims of a crime in order for hate crime penalties to apply, she says, it’s prevented prosecutors from seeking justice when offenders deface public property with racist graffiti.

“This bill would expand the applicability of Vermont’s existing hate crimes enhancement to allow prosecutors to bring a hate crimes enhancement for crimes where the actual victim of the crime might be a public entity, like a pubic building that is defaced with Nazi symbols or a school that has a pride flag destroyed,� Clark said in an email Tuesday.

Williston Rep. Angela Arsenault said the , approved in a voice vote on the House floor Tuesday, would allow courts to consider the motive of the alleged perpetrator when determining whether to file hate crime enhancements.

Hate crimes don’t exist as standalone offenses in Vermont; prosecutors can only add hate crime enhancements to underlying criminal charges.

“We’re shifting the way we think about victims in these cases where we do see hate-motivated conduct and allowing the reality of the situation to be reflected in our statutes,� Arsenault said. “I think it’s a way of saying as a society, as a culture, that certain conduct is not acceptable. It’s never acceptable. And hate-motivated crimes are never acceptable.�

Marshall Pahl, with the Vermont Office of the Defender General, warned the House Committee on Judiciary last month that the new language could run afoul of First Amendment protections in the U.S. Constitution.

“Hateful speech, hateful thoughts, hateful expressions are protected by the First Amendment,� Pahl said. “The First Amendment protects Americans� right to be racist, to be sexist, to have all kinds of really objectionable, horrible opinions, and to express those opinions.�

While the U.S. Supreme Court has been supportive of hate crime statutes that connect enhanced penalties to the discriminatory or biased selection of a victim, Pahl said the court has been less accepting of laws that criminalize the “intent, thoughts or biases� that might have compelled the conduct.

The legislation approved by the House, Pahl said, “from our perspective crosses a line into punishing people for their discriminatory thoughts, intents, biases, whether or not those thoughts, intentions and biases had a connection to their actual selection of a victim or not.�

Rod Smolla, a constitutional scholar and president of the Vermont Law and Graduate School, told lawmakers that he believes the bill is on safe legal ground.

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