Indiana hate crime law does not create a separate offense called a hate crime. Under Indiana Code 35-38-1-7.1, a judge sentencing someone already convicted of an underlying crime may treat bias motivation as an aggravating factor and move the sentence upward within the range the statute already allows for that offense.1Indiana General Assembly. Indiana Code 35-38-1-7.1 – Considerations in Imposing Sentence The bias finding is discretionary, not automatic, and it does not add time on top of the statutory maximum.
How Bias Motivation Factors Into Sentencing
The relevant provision, IC 35-38-1-7.1(a)(12), lets a sentencing court consider whether a person “committed the offense with bias due to the victim’s or the group’s real or perceived characteristic, trait, belief, practice, association, or other attribute the court chooses to consider.”1Indiana General Assembly. Indiana Code 35-38-1-7.1 – Considerations in Imposing Sentence The statute points to IC 10-13-3-1 as a non-exhaustive starting point but deliberately avoids a fixed list of protected characteristics.
That open-ended language was a political compromise. Earlier drafts of the 2019 bill (Senate Enrolled Act 198) included an explicit list that named sexual orientation and gender identity; the enacted version left the list out and gave individual judges room to decide which characteristics qualify. In practice, bias based on race, religion, national origin, sexual orientation, gender identity, and disability can all support the aggravator, but nothing in the statute guarantees that any particular characteristic will be treated as qualifying in a given case.
To get the aggravator applied, the prosecution has to show the defendant targeted the victim because of a perceived or actual characteristic. That usually means statements the defendant made before, during, or after the offense, hate-related symbols, social media posts, or a pattern of targeting people who share a trait. The bias has to connect to the crime itself. General prejudice is not enough.
How Much a Bias Finding Can Add to a Sentence
Indiana uses an advisory sentencing system. Each felony level has a minimum, an advisory (midpoint), and a maximum. Aggravating circumstances, including bias motivation, let a judge move upward from the advisory toward the maximum. Mitigating circumstances move it down. The felony ranges are:2Indiana Public Defender Council. Advisory and Standard Sentencing Additions or Subtractions
- Murder: 45 to 65 years, advisory 55 years
- Level 1 felony: 20 to 40 years, advisory 30 years
- Level 2 felony: 10 to 30 years, advisory 17.5 years
- Level 3 felony: 3 to 16 years, advisory 9 years
- Level 4 felony: 2 to 12 years, advisory 6 years
- Level 5 felony: 1 to 6 years, advisory 3 years
- Level 6 felony: 6 months to 2.5 years, advisory 1 year
A Level 5 felony assault that would ordinarily draw the 3-year advisory sentence could be pushed toward the 6-year ceiling once a judge finds bias motivation. Fines of up to $10,000 apply across felony levels, and the judge can also set probation conditions or affect parole eligibility based on the aggravators found.
Two limits are worth understanding. First, the statute says a court may impose any sentence authorized by statute “regardless of the presence or absence of aggravating circumstances or mitigating circumstances.”1Indiana General Assembly. Indiana Code 35-38-1-7.1 – Considerations in Imposing Sentence A judge who finds bias is not required to raise the sentence at all; a judge who finds no bias can still impose the maximum for other reasons. Second, the bias aggravator does not stack additional years onto the statutory ceiling the way a firearm enhancement does. It gives the court a documented reason to go to the top of the existing range, nothing more.
What Indiana’s Law Does Not Do
Because the mechanism is a sentencing factor rather than a charge, several things people often assume about hate crime laws do not apply here. There is no separate criminal offense of committing a hate crime in Indiana. There is no mandatory add-on penalty triggered when bias is proven. There is no closed list of protected classes written into the statute; what qualifies as a bias characteristic depends on how the sentencing judge reads the open-ended language. And an underlying conviction is required first. Bias motivation on its own, without a crime attached to it, is not something the state can prosecute.
Federal Hate Crime Charges That Can Apply
Federal law adds a separate layer. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, 18 U.S.C. § 249, is a standalone criminal offense. Willfully causing or attempting to cause bodily injury because of a victim’s actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability carries up to 10 years in federal prison. If the victim dies, or the offense involves kidnapping, aggravated sexual abuse, or an attempt to kill, the maximum rises to life. A conspiracy to commit a hate crime that results in death or serious bodily injury carries up to 30 years.3Office of the Law Revision Counsel. 18 USC 249 – Hate Crime Acts
Federal prosecutors typically get involved when the conduct crosses state lines, affects interstate commerce, involves firearms or explosives, or raises broader civil rights concerns. The same bias-motivated act can be prosecuted by both Indiana and the federal government. Under the dual sovereignty doctrine, reaffirmed by the Supreme Court in Gamble v. United States (2019), state and federal prosecutions for the same conduct do not violate double jeopardy because each sovereign enforces its own law.4Constitution Annotated. Dual Sovereignty Doctrine So even a lenient state outcome does not foreclose a federal case.
How to Report a Bias-Motivated Crime in Indiana
Call 911 or your local police first. Indiana State Police can also be reached at 1-800-582-8440. Reporting promptly matters both for the investigation and for victim compensation eligibility, which requires a police report within 72 hours.
Indiana also runs a Hate Crimes Reporting Network, developed by the Indiana Civil Rights Commission’s Hate Crimes Task Force, that collects data from law enforcement, prosecutors, and community organizations and shares it with the FBI.5City of Columbus, Indiana. Hate / Bias Crimes You can file directly with the FBI online at tips.fbi.gov or by calling 1-800-CALL-FBI (1-800-225-5324).6United States Department of Justice. Report a Hate Crime Filing with both state and federal authorities keeps federal prosecution on the table if the case fits the criteria.
Document what you can: the offender’s statements, slurs or symbols used, the sequence of events, witness contact information, injuries, and property damage. Photographs, video, and screenshots of social media posts can all serve as evidence of bias motivation later.
Compensation and Restitution for Victims
Indiana’s Violent Crime Victims Compensation Fund covers victims of eligible violent crimes, including bias-motivated assaults. To qualify, the crime must have occurred in Indiana, the victim must have at least $100 in out-of-pocket losses, and the crime must have been reported to police within 72 hours. The application has to be filed within 180 days of the crime, and medical expenses must be incurred within 180 days, with extensions possible in some circumstances. Eligible recipients include the direct victim, a surviving spouse, dependent children, other legal dependents of a victim who was killed, and anyone injured while trying to prevent a violent crime or assist law enforcement.7IN.gov. Who Is Eligible for Victim Compensation?
When a defendant is convicted under 18 U.S.C. § 249, federal courts can order restitution for medical expenses, mental health treatment, rehabilitation costs, lost income, funeral expenses if the victim died, and costs the victim incurred participating in the investigation and prosecution, including childcare and transportation. For property crimes, the defendant must return the property or pay its value, whichever is greater at the time of the offense or sentencing.8Office of the Law Revision Counsel. 18 U.S. Code 3663A – Mandatory Restitution to Victims of Certain Crimes
A civil lawsuit against the offender is a separate option. The burden of proof is lower than in a criminal case, and damages can include pain and suffering and emotional distress that criminal restitution may not fully reach.