Indiana Law Journal

Document Type


Publication Date


Publication Citation

90 Indiana Law Journal 1707 (2015)


On October 28, 2009, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (HCPA) was signed into law by President Barack Obama. Two years later, between September and November of 2011, members of a Bergholz, Ohio, Amish community allegedly carried out five attacks in which they forcibly restrained, and cut the hair and beards of, members of other Amish communities. In September of 2012, a jury rendered a verdict in United States v. Mullet and found sixteen members of the Bergholz community—including Samuel Mullet, bishop of the community—guilty of HCPA violations. These were the first convictions for religion-based hate crimes under the new statute.

Under the HCPA, a hate crime is committed when someone “willfully causes bodily injury to any person . . . because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person. . . .” At trial, the judge instructed the jury that the “because of” requirement could be proven by showing that the victim’s religion was “a significant motivating factor.” In 2014, while Mullet was awaiting decision on appeal, the Supreme Court decided Burrage v. United States and noted that, especially in the interpretation of criminal statutes, which are subject to the rule of lenity, the causation standards “because of,” “based on,” and “results from” have the ordinary meaning of requiring but-for causation.

All three judges on the appellate panel in Mullet agreed that the district court’s jury instruction that the victims’ religion must have been a “significant factor” in the motivation for the attacks was incorrect and should have comported with the Burrage holding. The judges split two to one, however, regarding the disposition of the appeal. The majority opinion, written by Judge Sutton, remanded the case to the district court and held that, because the motivation behind the attacks was at issue, a new trial—this time using the proper causation standard—is necessary. In dissent, Judge Sargus would not have remanded the case because using the incorrect causation standard was harmless error. The defense did not establish that the method of attack would have been the same if the victims had not been Amish adherents. Thus, using the incorrect causation standard was harmless error.

There are three commonly used models of causation for hate crime statutes: “racial animus,” “discriminatory selection,” and “because of.” The “because of” construction is the most ambiguous model—because the “because of” language is consistent with the analysis under either of the other models—and is the model used in the HCPA. Judge Sargus’s dissent would expand “because of” to include a new model for hate crime analysis: method of attack. This expansion serves the purposes of protecting classes from fear of attack due to their class membership and of giving heightened punishment to those who decide to perpetrate a crime based on protected characteristics. This new model of hate crime analysis ought to be adopted as a supplemental means of showing that a protected class member was attacked “because of” his or her class membership. If adopted, this supplemental analysis would recognize that, even assuming the Mullet victims were not chosen because of their religion, the attackers still made decisions based on the victims’ religion. In this Note, Part I provides an overview of facets of the Amish faith relevant to understanding the conflict between the defendants and the victims in Mullet. Part II recounts the conflicts and attacks and then looks to the litigation of the case from trial through appeal. Part III briefly recounts the HCPA’s namesakes and legislative history and presents the different models for hate crime statutes and their corresponding analyses, including Judge Sargus’s expanded interpretation of “because of.” Part IV argues that when, but for the victim’s protected class, an inherently class-based method of attack would not have been selected, the “because of” requirement of the HCPA should be deemed satisfied.