Lack of Officials’ Cultural Competency Will Hamper Hate Crimes Laws

Captain Jay Baker of the Cherokee County Sheriff’s Office was roundly criticized for describing a 21-year-old shooting suspect as having “a really bad day” after he went to three Asian-owned spas and killed mostly women of Asian descent.* Baker also uncritically parroted the alleged shooter’s after-the-fact claim that the killings were not racially motivated, but were purportedly due to a “sex addiction” and desire to “eliminate” this “temptation.”

Baker’s comments demonstrated an all-too-common lack of cultural competency. While he was willing to address the suspect’s own claimed motives, Baker did not address whether the alleged shooter’s post-hoc rationale made sense. Korean-language local media reported that, according to a secondary source, a spa worker heard the alleged shooter state he intended to “kill all Asians.” In the Atlanta spa where one of the shootings took place, all of the victims were women of Korean descent in their fifties, sixties, and seventies, most of whom did not provide spa services. As the local Korean community was reading news headlines highlighting that the alleged shooter said he would “kill all Asians,” they were hearing a local police spokesperson repeat the alleged shooter’s claims that the killings were not racially motivated.

As importantly, Baker in no way acknowledged that the alleged shooter’s statements evoke well-trodden stereotypes of Asian women. Such stereotypes were even codified in the Page Act of 1875, which barred Chinese and other Asian women from entering the United States for “lewd and immoral purposes” based on the stereotype that they posed a threat for being promiscuous or prostitutes.

The following day, FBI Director Christopher Wray was ready to publicly say in an interview, “it does not appear that the motive was racially motivated.” “But I really would defer to the state and local investigation on that for now,” he added.

These statements and omissions take on greater significance against the backdrop of heightened fears of violence against the Asian American Pacific Islander (AAPI) community during the pandemic.

A lack of cultural competency undermines hate crimes investigations by making it harder to talk to victims and witnesses, properly identify relevant evidence, and build a coherent case. It also undermines the broader purpose of hate crime laws – recognizing that targeted groups are equal members of our shared community by singling out and more harshly punishing crimes motivated by bias against that group.

The Harmful Consequences Of Overlooking Hate

At its core, a hate crime is about asserting superiority or power over a particular group, inflicting harm not only on the victims of the crime, but also on the group targeted by the violence. Hate crime laws, like the Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act, are a collective recognition that society condemns hate against groups based on certain categories such as race, national origin, religion, gender, gender identity, sexual orientation, and disability. All states except for three – Arkansas, South Carolina, and Wyoming – have hate crime laws. (Some also consider Indiana and North Carolina to lack true hate crime statutes). Thirty states and Washington, D.C. further require data collection on hate crimes.

When cultural competency is lacking in a hate crimes investigation, it can exacerbate the very harm that hate crime laws are intended to address. Language and cultural barriers can lead law enforcement and prosecutors to miss or overlook evidence of a hate crime. As recently reported, ignoring or negating signs of a potential hate crime sends an unmistakable message to the targeted community – that discrimination and violence against them will be tolerated.

Such a message also makes victims and witnesses of hate crimes less likely to report incidents or cooperate with law enforcement. Studies show hate crimes are significantly underreported. A Bureau of Justice Statistics report found about 54 percent of violent hate crime victimizations were not reported in 2011-2105. And nearly a quarter of hate crime victims did not report the crime because they believed “that police would not want to be bothered or to get involved, would be inefficient or ineffective, or would cause trouble for the victim.” In 2019, only 14 percent of the 15,588 state and local law enforcement agencies that participated in the FBI’s crime statistics program reported any hate crimes.

A Message That Anti-Asian Hate Will Be Tolerated

The Atlanta shootings took place following a year where anti-Asian hate incidents and hate crimes have dramatically increased as Trump administration officials and others referred to the coronavirus as the “China virus,” “Wuhan virus,” and even “Kung flu.” Warnings by AAPI elected officials and community leaders that using these racially stigmatizing terms could lead to greater discrimination and violence against Asian Americans went mostly unheeded. A recent peer-reviewed academic study found that after these terms went viral, there was a notable increase in bias against Asian Americans and racially-charged coronavirus media coverage.

Before the Atlanta mass shootings, the increase in anti-Asian hate crimes – including unprovoked, and in some cases, deadly attacks against elderly Asian Americans – received only passing attention. A report by the Center for the Study of Hate and Extremism at California State University, San Bernardino, found that in 2020, while the overall hate crime rate dropped by 7 percent, anti-Asian hate crimes increased by 149 percent in 16 of America’s largest cities. Stop AAPI Hate, an advocacy group, received 3,795 hate incidents from March 2020 to February 2021, with women reporting more than twice as many hate incidents as men.

As early as March 2020, the FBI warned that “hate crime incidents against Asian Americans likely will surge across the United States, due to the spread of coronavirus disease.” Yet, until President Biden took office and issued an Executive Order to combat anti-Asian hate incidents, the federal government appeared to take little public action to address the threat.

During the pandemic, members of the AAPI community were left feeling like anti-Asian discrimination was a second-tier concern for many government and law enforcement officials – if it was even a tier of concern at all. When the House Judiciary Committee held a subcommittee hearing on anti-Asian violence two days after the Atlanta shootings, it was only the second congressional hearing on this topic in more than 30 years.

It took Baker’s controversial statements about the alleged shooter in the Atlanta killings to focus the public’s attention on the problematic treatment of anti-Asian discrimination, highlighting the casual ways in which society has tolerated such discrimination.

Cultural Competency: A Prerequisite for Success

In the wake of the Atlanta shootings, members of Congress and President Biden have called for the passage of two pieces of hate crimes legislation – the COVID-19 Hate Crimes Act and the NO HATE Act. Both bills provide useful starting points in addressing the surge of anti-Asian hate crimes during the pandemic. But to be effective, policymakers must take steps to improve cultural competency at every stage of hate crimes investigations.

The NO HATE Act – led by Senator Richard Blumenthal and Representative Don Beyer, focuses on reporting and addressing hate crimes at the state and local level, where most hate crimes are investigated and prosecuted. Among other things, the 2019 version of the bill authorized DOJ to issue grants to state and local governments “to prevent, address, or otherwise respond to hate crime.” While the bill lists several possible activities for grant funding, such as “providing hate crime trainings” and “establishing a unit specialized in identifying, investigating, and reporting hate crimes,” it does not specifically include ensuring cultural competency training and expertise. Building cultural competency should be expressly identified as supported by the grant funding to help encourage state and local agencies to address this need.

The COVID-19 Hate Crimes Act, which was introduced by Senator Mazie Hirono (disclaimer: I served as Chief Counsel to Senator Hirono, but not at the time this bill was introduced) and Representative Grace Meng, requires, among other things, that a Justice Department official be responsible for facilitating the expedited review and reporting of COVID-19-related hate crimes. For this initiative to be effective, the DOJ official reviewing the potential hate crimes and state and local officials referring them need the cultural competency skills to properly identify and investigate these hate crimes and potentially speak to the public. To support the necessary cultural competency training and expertise, this bill should be paired with grant funding for state and local agencies.

The Biden administration has also taken important executive actions to address the increase in anti-Asian bias and violence. On March 31, the administration announced that it was, among other things, reestablishing the White House Initiative on Asian Americans and Pacific Islanders to coordinate across federal agencies to respond to anti-Asian bias and violence. The White House also said the Justice Department would lead an interagency initiative to combat anti-Asian violence. The Justice Department separately announced it would conduct a 30-day internal review to identify ways to improve tracking and prosecutions of hate crimes.

These executive actions should include efforts to expand cultural competency capacities in federal, state, and local hate crimes investigations. At the federal level, the Biden administration has signaled the importance of implicit bias training by rescinding the Trump administration’s ban on such training for federal employees. An emphasis on cultural competency skills should begin with those officials who help lead the newly announced interagency initiative to address anti-Asian violence.

At the state and local levels, the Justice Department should proactively partner with state and local agencies to provide cultural competency training and technical assistance through the department’s existing resources and grant programs. This can be done, for example, through its COP’s Collaborative Reform Initiative Technical Assistance Center (CRI-TAC) program, which provides technical assistance to law enforcement agencies in the form of “training, peer-to-peer consultation, analysis, coaching, and strategic planning.” Another resource is DOJ’s Community Relations Service (CRS), which, under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, works with local communities, including state and local law enforcement officials, to prevent and respond to alleged hate crimes.

Given the ways in which anti-Asian stereotypes, stigmatizing rhetoric, and caricatures have been culturally tolerated, there is much more that needs to be done to increase cultural competency in hate crimes investigations. Indeed, it is most likely a prerequisite for success.

* Some have argued these statements were taken out of context and that Baker was merely relaying to the press the suspect’s own statements. Others have pointed out how strange it was to describe an alleged shooting rampage as a “really bad day,” in contrast to descriptions used when people of color allegedly commit crimes.

Photo credit: Captain Jay Baker, of the Cherokee County Sheriff’s Office, speaks at a press conference on March 17, 2021 in Atlanta, Georgia (Megan Varner/Getty Images)

  

About the Author(s)

Christine Berger

Christine Berger is Washington, DC Fellow at Just Security. She served as Chief Counsel to Senator Mazie K. Hirono. Before that, she served as an appellate attorney in the Civil Rights Division of the Department of Justice and as an Attorney-Adviser in the Office of Legal Adviser in the State Department.