by Ashley Archibald
The first time Brianna Auffray’s client went to the police about a potential arson, they took down a report, but they did not classify it as a hate crime — despite a derogatory note left near the damage. The second time a fire was set at the same family’s home, law enforcement acknowledged that there appeared to be a pattern of arson but still didn’t change the classification. The message from the police was “who’s to know what their motives were?” said Auffray, who is the legal and policy manager for the Council on American Islamic Relations Washington (CAIR-WA).
The third time a fire was set, with an explicitly discriminatory message written next to the damage, police deemed it a hate incident. But to Auffray’s knowledge, there was still little communication with neighbors and no one was charged in connection to the crime.
“This family is living in extreme fear because, from their perspective, they’re very obviously being targeted over and over again. To their opinion and mine, they were very explicit, targeted based on [being] a protected class and there’s been nothing done,” Auffray said, noting that the family are both Muslim and immigrants.
“They ended up feeling like they needed to move, and that’s what happened,” Auffray added.
Nationally, reported hate crimes and incidents actually ticked down last year in 18 large cities, but not in Seattle. Locally, reports jumped from 484 to 791 between 2019 and 2020, with most incidents targeting Black people.
And yet, hate crimes and incidents go vastly underreported in general. That, advocates say, is partially because there are so many barriers to reporting and a satisfactory outcome is so rare.
Nationally, the gap between hate crime or incident reporting to law enforcement is stark. According to a 2019 analysis, law enforcement agencies reported 8,770 hate incidents to the Federal Bureau of Investigation (FBI) between 2004 and 2012. However, a national survey of victims conducted each year found 269,000 victimizations when people were asked to report themselves.
Some portion of that is likely what the FBI considers a crime. Seattle, for example, collects data on non-criminal incidents as well as hate or bias crimes, things that can be scary and traumatizing for the victim but doesn’t rise to the level of a crime. In 2019, the Seattle Police Department (SPD) recorded 484 crimes or incidents. That same year, the FBI statistics from the city show only 292 crimes.
But law enforcement officials and a community-led coalition believe that underreporting is common in Seattle and King County as well.
Reporting a hate crime isn’t always easy and can be frustrating. Michael Itti leads the Chinese Information & Service Center (CISC), an organization that supports immigrants and provides culturally relevant linguistic and other services. CISC joined the Coalition Against Hate & Bias in 2020, a community-led initiative meant to address incidents perpetrated against communities in King County.
“Sometimes they don’t feel that calling the police is going to result in anything, so they’re more likely to call or contact us,” Itti said. “We’re here as a trusted community-based org to take those reports and work with King County [Office of Equity and Justice] to respond to areas or patterns that we see of concern.”
In one case, CISC staff member Em Rose worked with a woman who had been physically assaulted and subject to racial slurs in Bellevue. CISC and other members of the coalition and community-based organizations helped her get a pro bono attorney to assist with the case, mental health services, and housing assistance — the perpetrator lived near the victim’s home.
But the language barrier posed a big issue — the victim did not speak English, and needed interpretation help to begin the process of reporting the crime and ultimately taking it to court.
“Because of the complexity of the case and also of this survivor’s needs, we really needed that kind of communal support because it’s a lot. There are a lot of pieces in order to support someone going through something pretty traumatic,” Rose said.
In her case, reporting was only the first step. It took the coalition’s resources to help stabilize and navigate the situation.
CISC provides contact information on its website that allows people to anonymously report hate crimes or incidents to staff in six different languages including Cantonese, Mandarin, Russian, Spanish, Vietnamese, and English.
SPD, meanwhile, provides instructions on how to report a hate crime in 10 different languages, but encourages victims to call 9-1-1, a non-emergency line if the incident has already occurred and there are no injuries, or go to one of six SPD precincts. It also has a “Safe Place” program established in 2015 where businesses register and agree to provide shelter to a victim while they call about a hate crime.
The department is actively trying to hire more bilingual and multilingual officers, said SPD Chief Adrian Diaz at a July 14 press conference on hate crime responses.
Law enforcement needs reports to move forward with investigations and ultimately prosecution, but they also determine whether or not something is flagged as a hate or bias incident in the first place.
And there seems to be an aversion to ascribing intention to a less direct hateful act, Auffray said.
“People aren’t always going to use explicit slurs. That doesn’t mean referring to someone as ‘trash’ or using ‘you people,’ or these substitutes, these dog whistles, isn’t the exact same thing,” Auffray said.
When a victim reports to SPD, officers have the ability to add whether or not there was an element of bias to it. An auditor’s report from 2017 found that officers marked 3,782 to 22,001 reports each year as “unknown” between 2012 and 2016. That option was removed in July 2017, according to an auditor’s report — a step that may encourage officers to review possible bias incidents more closely.
Reporting something as a hate crime or bias incident is only the first step. If a person is arrested and charged, prosecutors have to prove in court that the person committed the crime because of the victim’s protected status, such as their race, religion, sexual orientation, or sexual identity.
If the defendant made a racist comment before an assault, for instance, that can help prove that they committed the crime based on a person’s race. Mixed motives can make for weaker cases, said Yessenia Manzo, a deputy prosecutor in the King County Prosecuting Attorney’s Bias Crimes Unit.
“That can be hard to prove because we have to prove what motivated the person, whereas if it’s an Assault 4, we just have to prove that an assault happened,” Manzo said.
Prosecutors can also use a defendant’s social media history to establish a pattern of sentiment to prove intent in the courtroom .
Even if someone is found guilty of a hate crime, the consequences may not be enough, said David Bannick, also a deputy prosecutor in the Bias Crimes Unit, during the recent press conference. A person can get as little as three to nine months of jail time, but no probation. The short sentence is because a hate crime is not considered a crime against a person under statute.
“More than increased jail time, which may be a good idea, adding community custody as a punishment for a hate crime is really, really important, because a hate crime should always have been considered a crime against a person,” Bannick told reporters at the press conference.
His office pushed for legislation to close this loophole and require probation for people convicted of hate crimes, but it did not pass in the most recent state legislative session.
Legislators have been exploring possibilities to strengthen the hate crimes statutes in Washington for several years and passed some reforms in 2019. In response to that legislation, Attorney General Bob Ferguson convened the Hate Crimes Working Group, which released recommendations in July 2020 for law enforcement, prosecutors, workplaces, and even K-12 schools.
The workgroup came to the conclusion that institutions needed to do more to educate people about their rights and options in the event of a hate crime. It also counseled for changes to statutes to allow hate as an aggravating circumstance for any crime rather than as its own standalone charge, taking away what some see as the false choice between pursuing a conviction and including a hate crime charge. They also recommended probation or community release after conviction.
Those reforms ultimately did not pass, in part because opponents from the civil rights community were concerned that changes that make it easier for a prosecutor to convict or add time would ultimately be used against vulnerable communities themselves, Auffray said.
There was concern that giving prosecutors new tools to incarcerate people, even with the intention of helping marginalized communities, would lead to harm against BIPOC people because of existing biases within the criminal justice system, Auffray wrote in a follow-up email.
Legal acknowledgement that harm has been done can be helpful to some survivors, but it often isn’t enough. Words hurt, and even hateful ones are protected under the First Amendment. BIPOC communities and the community-based organizations that support survivors through the trauma of a hate crime or incident need more resources, culturally responsive services, and linguistic support, said Helen Wong, with CISC. Violence against marginalized people increased in 2020 and continues to harm in 2021, but a sense of the collective struggle and effort to dismantle systemic and institutional racism grew, too. It’s an opportunity to make systemic change, Wong said.
“We need to continue to receive the support from government and media to continue to amplify the issues so that it’s not just a time, because this is something that’s happened in the fabric of our history as a nation. It’s time to open up those discussions to make authentic dialogue and change,” Wong said.
Ashley Archibald is a freelance journalist with previous work in Real Change, the Santa Monica Daily Press, and the Union Democrat. Her work focuses on policy and economic development.
📸 Featured image is attributed to Michael Fleshman under a Creative Commons 2.0 license.
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