A hate crime is usually defined by state law as one that involves threats, harassment, or physical harm and is motivated by prejudice against someone’s race, color, religion, national origin, ethnicity, sexual orientation, or physical or mental disability.

Laws vary by state. Some states define a hate crime as any crime based on a belief regarding the victim’s race, religion, color, disability, sexual orientation, national origin, or ancestry. Some states exclude crimes based on a belief regarding the victim’s sexual orientation. Others limit their definition to certain crimes such as harassment, assault, and damage to property. In all states, the victim’s actual status is irrelevant. In other words, if someone attacks a victim he believes is gay, the attack is a hate crime whether or not the victim is actually gay. If hate crimes are provided for by statute, the definitions of hate crimes and penalties imposed vary. But states that have hate crime statutes provide harsher penalties for such offenses.

New Jersey prosecutors are considering seeking harsher penalties against Rutgers University students Dharun Ravi and Molly Wei, accusing them of invading Tyler Clementi’s privacy by secretly filming his sexual encounter with another man and posting the footage on the Internet. Clementi threw himself from the George Washington Bridge on Sept. 22. A day earlier, he had posted a message online saying how upset he was over the spying.

The case raises clear issues about cyberbullying and invasion of privacy. Ravi and Wei could face five years in prison if convicted. But prosecutors have let it be known that they are considering additional penalties based on New Jersey’s hate crime statutes. Those statutes come into play at the time of sentencing in New Jersey, rather than as a separate cause of action.

Lawyers for the two Rutgers University freshmen contend that hate crime charges are not justified and that many unfair assumptions have been made about their clients.

If Ravi and Wei are tried and convicted of invasion of privacy, should their sentences be extended based on New Jersey hate crime statutes? Regardless of the outcome, this is a legal and moral question that at least needs to be considered.