One March day, a white man kills eight people, six of whom are Asian women. The man claims he has a “sex addiction” and was acting to remove his “temptation.” He drives for miles between three spas, carefully choosing his victims.
One day later, our president responds: “I am making no connection at this moment to the motive of the killer.” Two days later, FBI Director Christopher Wray claims the attack “does not appear... racially motivated.”
This is in spite of the outcry from the Asian Americans and Pacific Islanders (AAPI) community and beyond. They argue that only blindness could obscure the clear motivations of the killer, placing his attack in a long history of violence against the AAPI community. Many demand that the shooter be charged with a state or federal hate crime, yet no commitments to do so have emerged.
What, you might ask, is going on here?
Defining Hate in the Law
The troubling divide in hate crime definition between members of the public and those in charge of executing its laws likely stems in part from the difficulty of proving motive in court. Currently, federal and (most) state prosecutors must prove that the attacker selected his victims “because of” their race, gender, or other protected status in order to secure a hate crime conviction. As explained by the Sixth Circuit in United States v. Miller, “because of” implies a “but-for” causation standard, meaning that a court will only convict if it is shown beyond a reasonable doubt that a perpetrator would not have acted unless the victim was of a particular race, religion, gender, or national origin.
Many might read this and think, “Of course the Atlanta shooter satisfies this standard.” You might be right. The attacker’s statements about “sex addiction,” coupled with proof that he targeted women, would be enough for at least one expert to say this case satisfies Georgia’s hate crimes statute. Representative Judy Chu argues that the attacker’s targeting of businesses he knew were staffed by Asian women eliminates any doubt as to whether race was a necessary condition of the attack.
But historically, the difficulty of proving motive has prevented prosecutors from bringing hate crimes charges in large numbers. In the ten years following the first wave of hate crimes legislation in the early 1980s, states produced a total of two criminal convictions. Of 2000 cases referred to federal investigators from 2009 to 2019, only 15% were prosecuted.
Moreover, whether or not we see a conviction, law enforcement’s failure to unequivocally denounce the attacker’s motive takes a toll on the public. In the words of Loyola law professor Justin Levitt, “[t]hese can be the kinds of cases that leave a community more distraught if they do not get what they feel is the right intuitive answer."
Indeed. Where the law discourages a firm and immediate response to injustice, it threatens the safety and dignity of those who feel its painful effects.
Looking to the Future
Going forward, both Congress and state legislatures should reconsider how they define hate crimes. One option is to require conviction where the victim’s protected status is a “significant motivating factor” rather than a but-for cause, as the federal government advocated for in the Miller case. This reform might spark First Amendment litigation, claiming that such a standard punishes beliefs rather than conduct, but Supreme Court precedent provides support for the use of speech as evidence of motive.
In the short-term, Congress should pass two recently re-introduced bills: the COVID-19 Hate Crimes Act and the No Hate Act. The former would commit at least one DOJ official to reviewing “COVID-19 hate crimes” and provide guidance to states and localities on creating a multilingual, online hate crime reporting apparatus. The latter would issue hate crime reporting grants to states and expand sentences for hate crimes to include educational programs and community service. Both of these initiatives failed last year, but Majority Leader Chuck Schumer is likely to take them up in the Senate within a month. Sen. Blumenthal (D - Conn.) and Rep. Chu (D - Calif.) are optimistic the bills will garner the bipartisan support necessary to prevent or defeat a filibuster.
These simple reforms are, in some sense, the least we could do. In the wake of attacks giving full voice to the racism and sexism embodied in our nation’s DNA, acknowledging the problem is not enough. Action, rather, is the true measure of our character.
The views expressed above are solely the author's and are not endorsed by the Virginia Policy Review, The Frank Batten School of Leadership and Public Policy, or the University of Virginia. Although this organization has members who are University of Virginia students and may have University employees associated or engaged in its activities and affairs, the organization is not a part of or an agency of the University. It is a separate and independent organization which is responsible for and manages its own activities and affairs. The University does not direct, supervise or control the organization and is not responsible for the organization’s contracts, acts, or omissions.