What Constitutes A Hate Crime in California? What Doesn't? Here Are The Basics

Since the beginning of the pandemic, the rise in hate crimes and incidents targeting the Asian American community has made national headlines and sparked widespread discourse.

Last month, the Center for the Study Of Hate & Extremism at Cal State San Bernardino reported a 145% increase in hate crimes targeting Asian Americans across America's 18 largest cities between 2019 and 2020, in a study that analyzed police data.

In the past month, Americans have rallied and protested after the March 16 Atlanta spa shootings left six women of Asian descent and two others dead. Federal investigators say they have not found enough evidence to charge the shooter with a hate crime, which has sparked discussions about what exactly hate crimes entail, and why prosecuting offenders on hate crime charges is challenging.

Our newsroom's public affairs show AirTalk, which airs on 89.3 KPCC, recently talked with Jerry Kang, distinguished professor of law and Asian American Studies at UCLA, to explain what constitutes a hate crime in California.

We've also included some additional information and resources.

What Is A Hate Crime?

The FBI defines a hate crime as "a traditional offense like murder, arson, or vandalism with an added element of bias." Federal statutes would prosecute a hate crime based on different protected categories, namely race, religion, disability, sexual orientation, ethnicity, gender or gender identity.

Despite the federal legislation, states are left to create their own statutes, and these protected categories differ in each state. In the 47 states that have enacted hate crime laws, 17 do not require data collection on hate crimes, according to the Department of Justice.

California's own statutes recognize hate crimes as offenses "where a victim is singled out because of their actual or perceived disability, gender, nationality, race or ethnicity, religion, sexual orientation, or association with a person or group with one or more of these actual or perceived characteristics."

These offenses can serve as a stand-alone crime, as an aggravating factor or as a sentence enhancement under the state's penal codes.

According to UCLA's Kang, hate crimes prosecuted at the state level generally have three elements:

• A "criminal act" was committed
• There is a causation between the crime committed "in whole or in part" and...
• The victim's "actual or perceived characteristics"

Some examples are offered in an LAPD circular on hate crimes:

• Acts which result in injury, even if the injury is slight
• Threats of violence that looks like they can be carried out
• Acts which result in property damage
• Any criminal act or attempted criminal act, including property damage, directed against individuals, public or private agencies

People hold signs during the "We Are Not Silent" rally against anti-Asian hate in response to recent anti-Asian crime in Seattle, Washington on March 13, 2021.

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Jason Redmond

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AFP via Getty Images

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What's Not Considered A Hate Crime?

A lot of hate rhetoric is protected as free speech under the First Amendment. Therefore, it's difficult to make words criminally accountable unless it includes a direct threat.

However, Kang says if an attempted physical altercation includes such hate speech, even if the speech did not provoke the fight, such speech can be relevant in enhancing a criminal offense to a hate crime.

"Unfortunately, we have to distinguish between words on the one hand, and actual sort of physical behaviors on the other, at least in the criminal context," Kang says. "We should not assume criminal law fixes everything."

But Kang warns that words have an unconscious and explicit impact on the "milder states of mind." In other words, the widespread stereotypical jokes and jabs launched against a racial group can influence how someone might react toward that group.

"There are a bunch of stereotypes associated with the Asian American body that marks us as forever foreign, fungible, looking alike, submissive, unfair competitors," Kang told KPCC, "that come from centuries of treatment (and) that actually make it a little bit more likely that we are scapegoated."

This is exemplified by phrases like "you don't belong here" that were woven into racist letters that reached multiple Asian businesses across California last month. (The same phrase was used by a man who physically attacked a 65-year-old Filipino American woman in New York recently -- and who has been charged with a hate crime.)

In order for a perpetrator to psychologically prepare for a hate attack, Kang says there must be a cognitive engagement in racial blaming and racial dehumanization.

Those incidents that do not rise to the level of a hate crime are typically labeled a "hate incident." The federal Department of Justice defines a bias or hate incident as "acts of prejudice that are not crimes and do not involve violence, threats, or property damage."

The LAPD's circular on hate crimes and incidents denotes that "the difference between a hate incident and a hate crime is that a hate incident is not a criminal act." It lists these examples as hate incidents:

• Offensive materials such as hate flyers placed in mailboxes or thrown on lawns
• Hate materials, not resulting in property damage, such as demeaning caricatures depicting a racial, ethnic or a religious group
• Hate graffiti in public places not directed against a specific target such as an epithet on a vacant building

Hate incidents are tracked by some law enforcement and several NGOs.

How Do I Report A Hate Crime Or Incident?

If you believe you have been the victim of a hate crime, Kang recommends calling your local police department and using official channels to report crimes.

The Department of Justice calls on victims and eyewitnesses of hate crimes to report to local police and submit a tip to the FBI.

Currently, state lawmakers are aiming to resurrect past bills that expand state hate crime legislation. California Reps. David Chiu and Al Muratsuchi introduced a bill that would establish a statewide, toll-free hotline for reporting hate crimes.

For other incidents of hate, Kang suggests reporting them to community and advocacy organizations such as Asian Americans Advancing Justice.

"This might be especially useful if you think that the incident did not rise to the level of a crime but still should be recorded as an incident of hate," he said.

There is also an online hate tracker called Stop AAPI Hate, put together last year by the Asian Pacific Planning and Policy Council (A3PCON), Chinese for Affirmative Action and the Asian American Studies Department of San Francisco State University that encourages the reporting of hate incidents.

"I think part of our challenge," Kang said, "is to see where in our culture are we looking the other way when we tend to scapegoat certain populations, and tend to think of certain populations as other and not fully human."

To listen to Jerry Kang's conversation with Larry Mantle on AirTalk, click here.