Crimes of hate: Sometimes justice is blind to the obvious

It often takes public outcry to prompt prosecution of assaults or harassment that are motivated by bias. So what explains the frequent failure of police in Seattle and elsewhere to identify and investigate hate crimes? Lack of training and misconceptions about the law, for starters.
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It often takes public outcry to prompt prosecution of assaults or harassment that are motivated by bias. So what explains the frequent failure of police in Seattle and elsewhere to identify and investigate hate crimes? Lack of training and misconceptions about the law, for starters.

The story after a while becomes awfully familiar: Someone in Seattle is assaulted because of who they are – gay, black, Jewish. It bears all the classic signs of a hate crime. Police show up but act as though it's an ordinary crime. When they file a report, it's not designated a hate crime and is neither investigated nor prosecuted as one.

Robert Jamieson, the Seattle Post-Intelligencer columnist, reported last month on just such a case: The incident occurred Aug. 4 in Seattle's Belltown neighborhood, when 47-year-old Michael Wrenn of Seattle, along with his friend, Aaron Hudy, were assaulted by a drunken man who asked them if they were gay before punching and kicking them. Moreover, said Wrenn and Hudy, Seattle police treated their concerns dismissively and then failed to designate the assault as a bias crime in their report. Wrote Jamieson:

[G]iven the strong words allegedly used before the attack – "What are you guys, fags?" – the beating looks even worse. Yet on the police report, the box that says "bias crime" was left blank for reasons that are a mystery. Sounds like a bias crime to me.

The incident inspired an Aug. 17 meeting between Seattle police and a trio of City Council members, Tom Rasmussen, Nick Licata, and Sally Clark. Assistant Chief Nick Metz, who oversees the city's bias-crimes unit, reassured the council members that hate crimes were a police priority, promising that officers would be reminded about the need to identify potential bias crimes as such, even when in doubt, so they can be further assessed.

In recent years, there have been a series of incidents similar to that in Belltown in which police handled fairly obvious hate crimes as run-of-the-mill incidents – though police revisited some of these cases after a public outcry, and the outcome was a bias-crime prosecution.

  • In April 2006, a black Whitman middle-schooler walking home near a McDonald's in north Ballard was assaulted by three white men who seemingly were provoked only by the victim's race; the men used racial slurs both before in a verbal assault on the youngster and as they beat him. When police arrived on the scene, they first handcuffed the victim. Eventually, two 19-year-old men, Cory Stewart and Colin Kelly, were charged and eventually convicted under the state's malicious-harassment law.
  • In October 2004, a gay Seattle businessman named Kevin Shaw was found beaten to death in his Porsche. Like many gay-bashing hate crimes, this one was notable for the extraordinary violence the perpetrator visited on his victim and the apparent lack of a motive. When a man named Michael Saga Maiava, who had met Shaw on a chat line, was arrested and charged with the killing, a bias-crime charge was never considered – even though Maiava invoked a "gay panic" defense. The perpetrator's explanation when caught clearly indicated a bias crime. This outraged many in the gay community. As Mario Paduano at Seattlest put it:
  • Simply put, everything about this case screams gay. Yet you wouldn't know it from the tepid local news coverage. Instead, perhaps out of respect for the dead, perhaps out of respect for the family, perhaps due to cold feet, perhaps out of mere spinelessness, the Seattle media is presenting this as any other murder and Shaw as any other guy. The result: a hate crime may go uninvestigated.
  • In November 2004, a trio of white males began hassling a patron of a Ballard restaurant, asking him if he were gay; the man politely assured them he wasn't. When the man left, one of the three walked up and decked him with a blow to the head, making him fall to the pavement, where he hit his head again, knocking him unconscious. The brave trio then took turns kicking their prey as he lay on the sidewalk, witnesses said. One of them kept shouting, "This is still Ballard!" But the incident was never handled by investigators as a bias crime, perhaps because the victim wasn't actually gay. The victim - who eventually recovered but suffered a number of long-term injuries as a result of the assault – eventually tired of the lack of response from police regarding his inquiries about a followup and approached the Seattle Gay News with his story, figuring that at least they would be interested in a gay-bashing assault, even if it was mistaken identity. Seattle police revisited the investigation but it had gone cold; no one was ever arrested or charged.

It's a common misconception, even within law enforcement, that the victim has to actually be who the perpetrator thinks for an assault or other offense to be a bias crime. In fact, the laws against bias crimes aren't predicated on the victim's actual status, because contrary to myth, the laws don't create "protected categories" of people. Rather, they focus on the state of mind of the perpetrator - whether a crime is motivated by an ethnic, religious, or sexual bias. That's why someone who assaults a turban-wearing Sikh for ostensibly being a Muslim terrorist is nonetheless committing a hate crime. Likewise, a gay-bashing in Ballard is still a gay-bashing, even if the victim is straight.

Crimes go unreported and uninvestigated all the time, of course, but when it happens with bias crimes, the result is especially poisonous for the larger community. Bias crimes are understood by experts to cause greater harm than ordinary crimes on three levels: the immediate victim, who typically sustains extraordinary psychological harm in addition to the extreme levels of violence that often occur in such cases; the minority community that is the larger target of the crimes, the underlying intent being to terrorize and drive them out; and the larger community, which then must wrestle with a blackened reputation and the internal animus and ethnic distrust created by the crimes.

So when police fail to respond adequately, the victim feels isolated, the target community believes it is not getting justice and can't trust authorities to provide it, and the larger community finds whatever bridges exist between ethnic communities are crumbling under the weight.

A series of incidents such as the ones described above alone might be cause for concern, but they are only anecdotal. It's more helpful, perhaps, to look at the bigger picture, to see what the numbers are in Seattle and to see how they compare to bias-crime trends nationally. When you do that, the picture that emerges is more of a mixed bag: Seattle actually does pretty well in dealing with bias crimes, though there still are problems.

A 2005 study by the Seattle LGBT Community Center looked at the 403 bias-related crime reports in the city between 2000 and 2005 and found that they occurred in every neighborhood, their numbers roughly rising and falling with general crime in those neighborhoods. Seattle had not just the largest sheer volume of bias crimes (unsurprising, since it's the largest city) but also the most enforcement, especially compared to most of the rest of Washington state. Nonetheless, the report noted that "there is a concern that the SPD data underreports the frequency of attacks that rise to the level of bias crime and malicious harassment."

Seattle is hardly alone. The underreportage of bias crimes is a widespread national problem. Some of the experts who've studied the issue say that while FBI statistics report about 8,000 bias crimes annually, the actual number might be closer to 50,000 a year. The problem is most severe in rural areas, where bias-crime prosecutions are a genuine rarity, but even in urban areas like Seattle bias crimes go unreported and uninvestigated fairly routinely.

A 2000 Department of Justice study looked at the underreporting of bias crimes and identified some of the causes:

  • Fear of negative publicity, especially the kind that can damage a community's reputation, often motivates officers and prosecutors to quietly treat obvious hate crimes as their lesser "ordinary" counterparts.
  • Confusion about the definition of hate crimes and which acts need reporting, particularly arising from the many differences among various state laws and the murky federal statutes.
  • Miscommunication between local and state reporting agencies, with the latter often reporting a bias crime simply as its parallel crime.
  • "False zeroes," or the reporting of zero crimes within a jurisdiction that in fact failed to report at all, which further skews the data regarding the actual rate at which hate crimes occur.
  • The natural reluctance of victims (especially gays and lesbians who may fear being "outed," or immigrants who might fear deportation) to report hate crimes or pursue charges, and the common failure of law-enforcement officials to either recognize or deal appropriately with this reluctance.
  • A significant lack of training in identifying and investigating hate crimes, as well as in handling victims of the crimes. The smaller the department, the less likely it is to offer such training, which generally translates into severe undertraining in rural areas.
  • A hostility to, or ignorance about, the concept of hate-crime laws, and a general over-eagerness to dismiss the bias aspects of crimes as a mostly "political" determination.

This last factor is especially potent among beat officers whose choices at the scene of a crime can determine what evidence is gathered and what direction an investigation takes. There is a certain level of resistance to bias-crime laws among law-enforcement officers, largely fed by a lack of understanding and training. Because bias-crime laws are often portrayed – falsely, and usually by opponents – in the media as creating "special rights" and "protected categories," many police officers tend to see them as unnecessary genuflecting to the gods of political correctness and are reluctant to pursue evidence of them.

"I've had that conversation with officers," says Michael Hogan, a deputy prosecutor with the King County Prosecuting Attorney's office who specializes in bias crimes. "Usually it's sincere and well-meaning, where they want to know why these crimes are needed if all they're doing is creating 'special rights.' So what I've tried to explain to them is how the laws actually work and why it's important to handle these crimes as the special crimes they are, especially because the broader community is impacted by them so much."

A follow-up study to the Department of Justice report in 2003, titled Bridging the Information Disconnect in National Bias Crime Reporting, sampled some of the respondents to the earlier study and tried to examine them more closely to determine why bias crimes were being underreported to the extent found in the first study.

What was found, according to the author, Northeastern University social scientist Jack McDevitt, is that "there was a real set of incentives to not identify bias-motivated incidents as such. Generally speaking, we went to focus groups with police officers in these communities, and they would say, 'Oh, we haven't had any bias crimes,' and then in the course of 15 or 20 minutes of discussion, they would relate two or three incidents that could have been.

"What we found when we went into it deeper was that, for many of these communities, the definition of a hate crime is something like what happened in Jasper, Texas, or Laramie, Wyo. That's what the officers see in their head when they think of a hate crime. Or someone with a shaved head. The extreme examples.

"Smaller examples are generally sort of identified as something that – you know, it's not that serious. And we found that the lack of training is one of the most significant barriers; most police officers get very little training on this in the academy and none after that. And then once they get through that, they forget about it quickly because they don't encounter it regularly. And then, when they do encounter them, they have these incredible ways to sort of minimize incidents that don't involve actual physical violence."

Deputy Prosecutor Hogan also points out that bias crimes can be difficult to prosecute anyway. They involve questions of motive, so the evidence requirements are high. And that evidence is often not available, so prosecutors might choose not to elevate a simple felony assault into a much more complex malicious-harassment case. That points again to the need to train police – and not merely a handful of them. If the cop on the scene doesn't get the necessary evidence, the case evaporates.

Law-enforcement specialists who deal in bias crimes have long recognized this need. The International Association of Chiefs of Police has for some years offered training advice on bias crimes. One of their guides, titled Responding to Hate Crimes: A Police Officer's Guide to Investigation and Prevention, lays out in fairly clear detail just how officers should approach the scene of a potential bias crime, because it does in fact require a higher and more specialized level of evidence collection.

The IACP identifies several "bias indicators": perceptions of the victim and witnesses; the perpetrator's comments, gestures, or written statements that reflect bias; differences (such as "gayness") between perpetrator and victim, whether actual or perceived; a pattern of similar incidents in the same general locale; whether the victim was engaged in activities promoting his/her group or community; whether the incident coincided with a holiday or date of particular significance; the involvement of organized hate groups or their members; and the absence of any other motive, such as economic gain.

Whether Seattle's police officers are ever exposed to this kind of information is an open question. SPD did not respond to repeated requests by Crosscut to interview department officials. SPD does follow the basic FBI advice for a department of its size in dealing with bias crimes - namely, it has a single person designated as the hate-crimes officer. That person helps educate other cops in the nuances of bias-crime law and reviews cases directed his or her way in which officers identify potential hate-crime elements. Those are the reports with the "hate crime" box checked.

After Robert Jamieson's column appeared in the P-I and the City Council members met with Seattle police, Assistant Chief Metz assured them there'd be follow-up. And according to Rasmussen, there has been: "They've been doing an excellent job of going back and talking to the officer who took the initial report, contacting the victim, and interviewing witnesses to identify the perpetrator."

Hogan has a similar assessment. "When they've made mistakes, they've been self-recognized," he says. "I've always found in dealing with SPD on these crimes that when a mistake is made, they don't hide from it but take real steps to correct it. It's my sense that the police officers really do care about these crimes, and they're sincere about tackling them."

And indeed there have been good outcomes in Seattle. A recent spate of gay-bashings on Capitol Hill were immediately recognized as bias crimes and are being investigated as such. More distantly, a trio of Russian emigrants who slashed a gay man on Capitol Hill in June 2005 were convicted a year later on bias-crime charges in what became a high-profile case.

In the case of the assault on the black middle-school student in Ballard and other incidents, the community has rallied behind the victim or victims. A gathering in Ballard attracted a diverse crowd who wanted to take a stand against bias crimes. Among them was the late Norm Maleng, who was there to reassure the public that his King County Prosecutor's Office was on the case. He told the audience that bias crimes deserve special opprobrium because of the unique damage they cause. "It's not just an ordinary crime," Maleng said. "It's a crime against the human spirit."

In its 2005 report, the LBGT Community Center made a number of recommendations, including a handful for law enforcement. One was to create a centralized means for victims of bias crimes to report them to an agency outside of SPD designed to deal with such crimes. Another was to formalize a "clear, written protocol" for officers at all levels to determine whether and how to designate bias crimes. And finally, it recommended an audit "to ensure that crimes are being recorded and investigated as crimes rather than as incidents." Given the recent case in Belltown, it's clear that such an audit ought to consider whether field officers are appropriately recording bias crimes.

None of these recommendations, however, has been enacted. In fact, Ken Molsberry, the study's co-author, says the reaction so far has been plain and simple silence. Some of that, he says, is human nature: "People don't want to think about it, they don't want to talk about it, they would rather just ignore it and hope it goes away."

A complicating factor is that training costs money. In that respect, bias-crime laws are flawed: They are essentially an unfunded mandate. Legislatures can pass all the bias-crimes laws they like, but if the average officer on the ground still thinks the victim has to be a minority for it to be a bias crime, those laws will not be enforced.

Providing local law enforcement agencies with fully funded training is something city or state leaders could provide if there were political will. But it appears there is not. When it comes to protecting the civil rights of minorities, that, too, is something of a familiar story.


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