HATE IS A VIRUS: RECENT SURGE IN ANTI-ASIAN HATE CRIMES AND THE SUFFICIENCY OF THE CURRENT HATE CRIME LAWS
By: Youngjin Jang, Volume 105 Staff Member
The hateful killings of six women of Asian descent in Georgia on March 17th have left the Asian American and Pacific Islander (“AAPI”) community in fear.[1] Although discrimination against Asians has always existed throughout American history,[2] the U.S. has been witnessing a surge of harassment and violence against the AAPI community.[3] An attacker in San Francisco screamed racial slurs at an Asian American veteran who relies on a cane to walk then knocked him to the ground.[4] An unnamed worker at the Department of Housing Preservation and Development sent out letters to Vietnamese tenants in a public housing apartment in New York, addressed to “Ching Chong” in place of their actual names.[5] An attacker stomped to the ground a 65-year-old woman in broad daylight, while security guards at a nearby building who witnessed the crime did nothing to help but instead closed the door on the victim.[6]
Although hate crime laws in the U.S. are the congressional efforts to combat such heinous acts, their limitations are blatant, and especially more so when the victims are Asians.[7] Recognizing the challenges behind hate crime laws and the need for an immediate legislative action, Asian American lawmakers have been promoting the COVID-19 Hate Crimes Act (“Hate Crimes Act”), which specifically targets anti-Asian hate crimes related to COVID-19.[8] While the new legislation does not escape criticisms, it is nonetheless crucial for fostering a safer environment and supporting the AAPI community.
I. CURRENT HATE CRIME LAWS ARE INSUFFICIENT TO PROTECT THE AAPI COMMUNITY FROM HATE CRIMES
A. Statistics Show a Rise in Anti-Asian Hate Crimes in the U.S.
2020 was a tough year for everyone, but it was especially so for people of color, including the AAPI community. Data shows that between March 19, 2020 and February 28, 2021, there have been almost 3,800 reported anti-Asian hate crimes in the U.S.[9] In New York City, the number of anti-Asian hate crimes reported in March and April 2020 was as large as those reported in the previous four years combined.[10] Most of the reported incidents have been against females[11] and senior citizens,[12] who may be perceived as more vulnerable and weak. However, this only reflects a fraction of the reality, as hate crime data released by police departments do not accurately capture the entire scope of the problem.[13]
The COVID-19 virus lies at the center of this recent surge in hate crimes against Asians. Because the virus first started in Wuhan, China, people around the world have been referring to the virus as “Kung Flu” or other equivalent sinophonic slurs.[14] However, a study found that former President Trump’s tweet calling Coronavirus the “Chinese Virus” added fuel to the fire and America subsequently witnessed a jump in anti-Asian hate crimes.[15]
B. S. Hate Crime Laws Have Limitations
The first federal hate crime statute of 1968 made it a crime to “use, or threaten to use, force to willfully interfere with any person because of race, color, religion, or national origin.”[16] Then in 2009, the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act expanded the definition of hate crimes and eliminated certain jurisdictional obstacles.[17] The Department of Justice describes “hate” as “bias against people with specific characters like race, national origin, gender, sexual orientation, religion, or disability” and “crime” as not only violence like an assault or murder, but also “property damages, threats to commit the crime, or even conspiring to commit the crime.”[18] At the state-level, all states except for three—Wyoming, Arkansas, and South Carolina—have hate crime laws, though their forms vary by state.[19]
However, current federal and state hate crime laws are limited. For one, defining hate crimes can be difficult due to First Amendment concerns. Actions or speeches that one may find offensive can simply be expressions for the actor or speaker.[20] Additionally, prosecuting hate crimes can be challenging because of the difficulties of proving a biased motive required of hate crimes.[21] The Cherokee County Sheriff’s Office in charge of the Georgia Spa Shootings mitigated race as a motivation behind the killings by merely relying on the perpetrator’s confession that he wanted to “eliminate” his “sexual addiction” and “temptation.”[22]
Proving an anti-Asian motive is especially more difficult because “recognizable prototype[s]” of anti-Asian hate crimes have not been established, unlike those against Black, Jewish, or LGBTQ individuals.[23] This is partly because anti-Asian imagery and slurs are so embedded in American society and culture[24] that many Americans are not fully aware of what anti-Asian hate crimes even look like.[25] That the Cherokee County Sheriff’s Office refused to recognize “eliminat[ion]” of sexual temptation by killing Asian women as anti-Asian bias is very telling of this issue. Furthermore, inconsistencies in data collection requirements across states lead to discrepancies in support and protection available to vulnerable populations.[26] Currently, 18 out of 49 states do not require data collection on hate crimes,[27] which not only makes national hate crime data incomplete but also leaves targeted communities vulnerable as comprehensive data plays a big role in properly allocating resources to protect those communities accordingly.[28]
II. COVID-19 HATE CRIMES ACT IS AN APPLAUDABLE EFFORT, DESPITE ITS SHORTCOMINGS
In response to the recent surge in hate crimes targeting the AAPI community, Senator Mazie K. Hirono and Representative Grace Meng introduced the COVID-19 Hate Crimes Act[29] with co-sponsorship from more than 60 lawmakers and endorsement by President Biden.[30] The Hate Crimes Act first defines a “COVID-19 hate crime” as “a crime of violence that is motivated by (A) the actual or perceived race, color, religion, national origin, sexual orientation, gender, gender identity, or disability of any person; and (B) the actual or perceived relationship to the spread of COVID-19 of any person because of the characteristics described in subparagraph (A).”[31] The bill requires at least one designated DOJ point person to expedite the review process of COVID-19 hate crimes reported to federal, state, and/or local law enforcement for at least a year.[32] It makes reporting of hate crimes easier for victims by establishing an online reporting system in multiple languages, allowing more victims to come forward.[33]The bill also provides guidance on how to discuss the COVID-19 pandemic without using racially discriminatory language by coordinating with the Health and Human Services Secretary and the COVID-19 Health Equity Task Force.[34]
The Hate Crimes Act is not without criticism. Anthony Michael Kreis, a law professor at Georgia State University College of Law has expressed that the benefits of adding COVID-19 hate crimes to the existing federal hate crime framework are ambiguous as the law in practice already connects discriminatory acts with current trends.[35] For example, Kries said hate crimes against the LGBTQ community by those who express anti-HIV/AIDS views can already be prosecuted with the existing law.[36] Additionally, the Hate Crimes Act not only is unable to escape from the fundamental challenge of prosecuting hate crimes—proving a biased motive—but also heightens the bar by requiring that the motive be related to the spread of COVID-19.[37] Unless the perpetrator admits that the hateful act was motivated by a bias related to COVID-19 or accompanies the act with a comment indicative of such motive, it would be difficult to qualify the crime as a COVID-19 hate crime. Lastly, while expanding the reporting system is absolutely needed, it is unclear whether the elderly of the AAPI community, who have been the biggest victims of recent hate crimes, will benefit much from an online reporting system, given their relative lack of familiarity with the Internet.[38]
Despite its shortcomings, the Hate Crimes Act is nonetheless applaudable for enabling a faster review of COVID-19 related hate crimes and making reporting such incidents easier for those with limited proficiency in English. More broadly, notwithstanding their challenges, hate crime laws are still essential in protecting the AAPI community and condemning heinous acts motivated by ugly biases. Hate crime laws often impose heightened punishments because hateful acts affect not only the victim but also put their entire community into fear.[39] If prosecuted successfully, hate crimes can also “effectively deter future bigots from acting on their worst impulses.”[40] Equally important, hate crime laws show support for the targeted population by recognizing such wrongful acts are punishable and that the victims’ communities are “welcome in the community.”[41] Furthermore, hate crime laws could benefit from more appropriate enforcement measures.
CONCLUSION
The New York Police Department’s recent addition of undercover officers in areas with higher Asian populations already seems to be effective in actually enforcing hate crime laws.[42] Thus, despite the apparent limitations of the Hate Crimes Act and hate crime laws, they are nonetheless key in discouraging hateful acts and supporting the AAPI community, especially when coupled with appropriate punishment and effective enforcement.
[1] Rachel Treisman, What We Know About the Victims of the Atlanta-Area Shootings, NPR (Mar. 24, 2021, 10:18 AM), https://www.npr.org/2021/03/18/978742409/what-we-know-about-the-victims-of-the-atlanta-area-shootings [https://perma.cc/NX5H-UGL6].
[2] Liz Mineo, The Scapegoating of Asian Americans, Harv. Gazette (Mar. 24, 2021), https://news.harvard.edu/gazette/story/2021/03/a-long-history-of-bigotry-against-asian-americans/ [https://perma.cc/EHV6-P257].
[3] Treisman, supra note 1.
[4] Ryan General, Asian American Army Veteran Beaten in Clear Hate Crime in SF, Nextshark (Mar. 24, 2021), https://nextshark.com/veteran-army-attacked-san-francisco/ [https://perma.cc/5K28-GQE9].
[5] Ryan General, NY Public Housing Inspector Sends Racist ‘Ching Chong’ Letter to Vietnamese Tenants, Nextshark (Mar. 29, 2021), https://nextshark.com/public-housing-inspector-suspended-letter-vietnamese-tenants/ [https://perma.cc/WMD5-LU8J].
[6] Neil Vigdor, Attack on Asian Woman in Midtown Prompts Another Hate Crime Investigation, N.Y. Times (Mar. 30, 2021), https://www.nytimes.com/2021/03/30/nyregion/attack-asian-woman-midtown.html [https://perma.cc/ZNF4-S828].
[7] See infra notes 23–25 and accompanying text.
[8] Catherine Kim & Maya King, Advocates, Lawkmakers Demand End to Anti-Asian Hate Crimes After Atlanta Killings, Politico (Mar. 17, 2021, 10:02 PM), https://www.politico.com/news/2021/03/17/end-anti-asian-hate-crimes-atlanta-killings-476899 [https://perma.cc/TYV5-9EUY].
[9] Kimmy Yam, There Were 3,800 Anti-Asian Racist Incidents, Mostly Against Women, in Past Year, NBC News (Mar. 16, 2021, 5:13 PM), https://www.nbcnews.com/news/asian-america/there-were-3-800-anti-asian-racist-incidents-mostly-against-n1261257 [https://perma.cc/WX85-NKR8].
[10] Jeff Asher, Why There’s Not Much Data on Anti-Asian Violence, Lawfare (Mar. 23, 2021, 7:52 AM), https://www.lawfareblog.com/why-theres-not-much-data-anti-asian-violence [https://perma.cc/FDZ6-XZ8B].
[11] Yam, supra note 9.
[12] Unpacking the Surge in Violence Against Asian Americans, NPR (Feb. 10, 2021, 4:24 PM), https://www.npr.org/2021/02/10/966498602/unpacking-the-surge-in-violence-against-asian-americans [https://perma.cc/7PC6-DG6D].
[13] Priya Krishnakumar, Why Hate Crime Data Can’t Capture the True Scope of Anti-Asian Violence, CNN (Mar. 18, 2021, 3:18 PM), https://www.cnn.com/2021/03/18/us/hate-crime-reporting-anti-asian-violence/index.html [https://perma.cc/MB9A-WBLZ].
[14] Jessica Guynn & Aleszu Bajak, Asian Americans Report Biggest Increase In Serious Incidents of Online Hate and Harassment During COVID-19 Pandemic, USA Today (Mar. 24, 2021, 12:00 AM), https://www.usatoday.com/story/tech/2021/03/24/asian-american-hate-crimes-covid-harassment-atlanta-google-facebook-youtube/6973659002/ [https://perma.cc/73ZG-HEKK].
[15] See Shirin Sinnar, Stanford’s Shirin Sinnar on Fear in the Asian Community, the Rise of Hate Crimes, and the Georgia Killings, Stan. L. Sch. (Mar. 19, 2021), https://law.stanford.edu/2021/03/19/stanfords-shirin-sinnar-on-fear-in-the-asian-community-the-rise-of-hate-crimes-and-the-georgia-killings/ [https://perma.cc/4XU5-4C7W]; Robert Hart, Trump’s ‘Chinese Virus’ Tweet Helped Fuel Anti-Asian Hate on Twitter, Study Finds, Forbes (Mar. 19, 2021, 9:26 AM), https://www.forbes.com/sites/roberthart/2021/03/19/trumps-chinese-virus-tweet-helped-fuel-anti-asian-hate-on-twitter-study-finds/?sh=2cdf71201a7c [https://perma.cc/B44V-28F5].
[16] Hate Crime Laws, U.S. Dep’t of J., https://www.justice.gov/crt/hate-crime-laws [https://perma.cc/M8ZS-BDQ3] (last visited Mar. 27, 2021).
[17] 18 U.S.C. § 249; see also Hate Crime Laws supra note 16.
[18] Maria Morava & Saba Hamedy, 49 States and Territories Have Hate Crime Laws—But They Vary, CNN (Mar. 17, 2021, 3:53 PM), https://www.cnn.com/2021/03/17/us/what-states-have-hate-crime-laws-2021-trnd/index.html [https://perma.cc/56EM-UJYT].
[19] Law and Policies, Dep’t of J., https://www.justice.gov/hatecrimes/laws-and-policies [https://perma.cc/M82J-6LG2] (last visited Mar. 30, 2021).
[20] See Courtney Lauren Anderson, Hate Wins, 52 Loy. U. Chi. L.J. 225, 225 (2020).
[21] Spencer Bokat-Lindell, Are Hate Crime Laws Really the Answer to Anti-Asian Violence?, N.Y. Times (Mar. 23, 2021), https://www.nytimes.com/2021/03/23/opinion/asian-hate-crimes.html [https://perma.cc/H62V-5QY6].
[22] 8 Dead in Atlanta Spa Shootings, With Fears of Anti-Asian Bias, N.Y. Times (Mar. 26, 2021, 9:19 AM), https://www.nytimes.com/live/2021/03/17/us/shooting-atlanta-acworth [https://perma.cc/S6T4-L8NG].
[23] Bokat-Lindell, supra note 21.
[24] For example, in an interview with the filmmaker Renee Tajima-Peña, she explains the hypersexualized image of Asian woman as the “lotus blossom,” a “submissive, compliant, sexualized” woman. Isaac Chotiner, The History of Anti-Asian-American Violence, The New Yorker (Mar. 25, 2021), https://www.newyorker.com/news/q-and-a/the-history-of-anti-asian-american-violence [https://perma.cc/VKU2-T68C]. Asians are also often stereotyped as “the model minority” and at the same time “the perpetual foreigner” in the U.S. Id. That Jay Leno, the former host of “The Tonight Show” is now regretting making racist jokes about Asians, some of which were made as recent as in 2019, is indicative of the American society’s failure to recognize anti-Asian sentiments. Ryan General, Jay Leno Now Regrets Decades of Telling Racist Jokes Aimed at Asians, Nextshark (Mar. 25, 2021), https://nextshark.com/jay-leno-apologizes-racist-jokes/ [https://perma.cc/S726-P7DQ].
[25] Erin B. Logan, Biden Supports the COVID-19 Hate Crime Bill: What Would it Do?, L.A. Times (Mar. 19, 2021, 1:52 PM), https://www.latimes.com/politics/story/2021-03-19/biden-supports-covid-hate-crime-bill-what-would-it-do [https://perma.cc/D839-Z7X3].
[26] Morava & Hamedy, supra note 18.
[27] Laws and Policies, supra note 19.
[28] Morava & Hamedy, supra note 18.
[29] H.R.6721, 116th Cong. (2019–20) https://www.congress.gov/bill/116th-congress/house-bill/6721/text [https://perma.cc/LMY7-67K7].
[30] See Logan, supra note 25.
[31] H.R.6721, 116th Cong. (2019–20) https://www.congress.gov/bill/116th-congress/house-bill/6721/text [https://perma.cc/LMY7-67K7].
[32] See Logan, supra note 25; Press Release, Mazie K. Hirono, Hirono and Meng Introduce Bill to Address Surge of Anti-Asian Hate Crimes During Coronavirus Pandemic (Mar. 11, 2021) (available at: https://www.hirono.senate.gov/news/press-releases/hirono-and-meng-introduce-bill-to-address-surge-of-anti-asian-hate-crimes-during-coronavirus-pandemic) [https://perma.cc/W6QF-CJW6]) [hereinafter Hirono].
[33] See Logan, supra note 25.
[34] See id.; Hirono, supra note 32.
[35] Logan, supra note 25.
[36] Id.
[37] See supra note 31 and accompanying text.
[38] A study by the Center for Research and Education on Aging and Technology Enhancement (CREATE) shows that people of 60-91 years old are generally less likely to use the Internet and are less comfortable using the Internet. Eleftheria Vaportzis, Maria Giatsi Clausen & Alan. J. Gow, Older Adults Perceptions of Technology and Barriers to Interacting with Tablet Computers: A Focus Group Study, 8 Frontiers Psych. 1, 2 (2017) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5649151/pdf/fpsyg-08-01687.pdf [https://perma.cc/Z8LU-TASX].
[39] Learn About Hate Crimes, Dep’t of J., https://www.justice.gov/hatecrimes/learn-about-hate-crimes, [https://perma.cc/GG9L-LYGZ] (last visited Mar. 30, 2021).
[40] Shan Wu, Anti-Asian Violence Must Be Charged As a Hate Crime, CNN (Feb. 25, 2021, 9:19 PM), https://www.cnn.com/2021/02/25/opinions/hate-crime-anti-asian-violence-wu/index.html [https://perma.cc/2ST5-9WQ5].
[41] Bokat-Lindell, supra note 21.
[42] See, e.g., Jaclyn Peiser, She Yelled an Anti-Asian Slur at a Man on the Street, Police Said. He Was an Undercover NYPD Officer, Wash. Post (Apr. 8, 2021, 3:06 AM) https://www.washingtonpost.com/nation/2021/04/08/asian-hate-crime-sharon-williams/ [https://perma.cc/8J2R-YESF]; Associated Press, NYPD: Man Menaced, Made Anti-Asian Remark to Undercover Cop, ABC News (Apr. 10, 2021, 1:31 PM), https://abcnews.go.com/US/wireStory/nypd-man-menaced-made-anti-asian-remark-undercover-76995247 [https://perma.cc/QZ6E-S3BT].