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racial violence

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More Than Words: Hate Crime Laws and the Atlanta Attack

photograph of "Stop Asian Hate' sign being held

There’s an important conversation happening about how we should understand Robert Aaron Long’s murder of eight individuals, including six Asian women (Daoyou Feng, Hyun Jung Grant, Suncha Kim, Soon Chung Park, Xiaojie Tan, Yong Ae Yue) last week. Were Long’s actions thoughtless or deliberate? Is the attack a random outburst at an unrelated target, or “a new chapter in an old story”? Is the attack better explained as a byproduct of anti-Asian American sentiment left to fester, or merely the result of a young, white man having “a really bad day”? Behind these competing versions lies a crucial distinction: in judging the act, should we take on the point of view of the attacker or his victims?

In the wake of the tragedy, President Biden urged lawmakers to endorse the COVID-19 Hate Crimes Act aimed at addressing the rise in violence directed at Asian Americans. The bill intends to improve hate crime reporting, expand resources for victims, and encourage prosecution of bias-based violence. As Biden has emphasized, “every person in our nation deserves to live their lives with safety, dignity, and respect.” By publicly condemning the Atlanta attack as a hate crime, the president hopes to address the climate of fear, distrust, and unrest that’s set in.

Unfortunately, hate crime legislation has proven more powerful as a public statement than a prosecutorial tool. The enhanced punishment attached to those criminal offenses motivated by the offender’s biases against things like race, religion, and gender are rarely sought. Part of the problem stems from the legal difficulty in demonstrating motive. This requires going beyond mere intent — assessing the degree to which one meant to cause harm — and instead considering the reasons why the person acted as they did. We’re encouraged to judge the degree to which prejudice might have precipitated violence. Establishing motive, then, requires us to speculate as to the inner workings of another’s mind. Without a confession, we’re left to try to string bits of information together into a compelling narrative of hate. It’s a flimsy thing to withstand scrutiny beyond a reasonable doubt.

This trouble with motive is currently on clear display: Long has insisted that race and gender had nothing to do with the attack, and the police seem willing to take him at his word. On Thursday, FBI director Christopher Wray deferred to the assessment by local police saying that “it does not appear that the motive was racially motivated.” Instead, Long’s actions have been explained as the consequence of sex addiction in conflict with religious conviction; Long’s goal has been described as the elimination of temptation.

How this explanation insulates Long’s actions from claims of bias-inspired violence is not clear. As Grace Pai of Asian Americans Advancing Justice suggested, “To think that someone targeted three Asian-owned businesses that were staffed by Asian American women […] and didn’t have race or gender in mind is just absurd.” The theory fails to appreciate the way Long’s narrative fetishizes Asian American women and reduces them to sexual objects. Rather than avoiding the appearance of bias, the current story seems to possess all the hallmarks. Sure, it might prove a bit more difficult to establish in a court of law, but as Senator Raphael Warnock argued, “we all know hate when we see it.”

So what makes politicians run toward, and law enforcement run from, the hate crime designation? In addition to the difficulty in prosecution, hate crime laws have a shaky record as a deterrent, made worse by the fact that they are rarely reported, investigated, or prosecuted. Despite all but three states now having hate crime laws on the books, rates of bias-inspired violence and harassment over the past several years have remained relatively high. (Many attribute this trend to the xenophobic and racist rhetoric that came out of the previous White House administration.)

But perhaps the value of hate crime legislation can’t be adequately captured by focusing on deterrence. Maybe it’s about communication. Perhaps the power of these laws is about coming together as a community to say that we condemn violence aimed at difference in a show of solidarity. We want it known that these particular individuals — these particular acts — don’t speak for us. Words matter, as the controversy regarding the sheriff’s office explanation of the attacker’s state of mind makes clear. Making the public statement, then, is a crucial step even if political and legal factors mean the formal charge is not pursued. It’s a performance directed at all of us, not at the perpetrator. The goal is restoration and reconciliation. Failing to call out bias-inspired violence when we see it provides cover and allows roots to take hold and to continue to grow unchecked.

Still, the importance of signalling this moral commitment doesn’t necessarily settle the legal question of whether hate crime legislation can (and should) play the role we’ve written for it. Hate crime laws are built on our belief that bias-inspired violence inflicts greater societal harm. These crimes inflict distinct emotional harms on their victims, and send a specific message to particular members of the community. Enhanced legal consequences are justified, then, on the basis of this difference in severity and scope. Punishment must fit the crime.

Some critics, however, worry that hate crime laws reduce individuality to membership of a protected group. In a way, it’s guilty of a harm similar to that perpetrated by the attacker: it renders victims anonymous. It robs a person of her uniqueness, strips her of her boundless self, and collapses her to a single, representative label. Because of this, hate crime laws seem at once both necessary for securing justice for the victim — they directly address the underlying explanation of the violence — and diametrically opposed to that goal — the individual victim comes to be defined first and foremost by her group identity.

The resolution to these competing viewpoints is not obvious. On the one hand, our intuitions suggest that people’s intentions impact the moral situation. Specifically targeting individuals on the basis of their gender or ethnicity is clearly a different category of moral wrong. But the consequences that come from the legal application of those moral convictions have serious repercussions. Ultimately, the lasting debate surrounding hate crime legislation speaks to the slipperiness in pinning down what precisely justice demands.

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Call It What It Is: On Our Legal Language for Racialized Violence

photograph of Lady Justice figurine with shadow cast on wall behind her

This week, as seems to be the case every week in the U.S., we have seen Black people threatened with harm and killed for no other reason than their race.

I use “see” purposefully. The increased use of cameras to document the context surrounding the harassment, assault, and murder of Black people has raised awareness in recent years beyond the communities that have been experiencing this violence continuously. The incredible and outsized use of force and aggression towards non-white people is laid bare by the traumatic videos capturing these violent acts.

White supremacist violence from the past week includes the murder of George Floyd, an unarmed man, by four Minnesota police officers and the racist, false police report of Amy Cooper against Christian Cooper, a bird watcher in Central Park.

While both the police officers and Amy Cooper are no longer employed and may face further consequences, their actions form part of a much broader system of oppression and violence — a system we seem to lack sufficient moral language, or the proper legal framework, to fully capture.

Amy Cooper can face misdemeanor charges for making a false report under New York law. The penalty for such misdemeanors in the state is up to one year in jail, and a fine up to $1,000. The reasoning behind such statutes is that by making a false report you have done harm to the criminal justice system itself. The aspects of the law include a mens rea element (a state-of-mind aspect), requiring that you knew the report to be false, and an actus reas element (the behavior of the violation), which is actually reporting the crime to the relevant authorities. Cooper meets both of these elements pretty straightforwardly.

However, as this statute targets the harm done to the justice system and peace officers, it is easy to see that there is more to the moral and legal context of her behavior than simply tying up police resources.1 As is clear in the video Christian Cooper recorded, Amy Cooper focused on Christian Cooper’s race both in her threats to him personally off the call, and by heightening her vocalization of distress while describing him as “African American” to the operator. She thus put Cooper at significant risk, harnessing her power as a white woman and targeting him as a Black man, by directing police attention on him. The shared understanding of the danger that Christian Cooper experiences in the world is necessary for her threats to land and her harassment to be effective. As Christian Cooper said when explaining his filming of her harassment, “We live in an age of Ahmaud Arbery, where Black men are gunned down because of assumptions people make about Black men, Black people, and I’m just not going to participate in that.”

In order to capture the racist motivations behind Amy Cooper’s behavior, we could look to the legal category of hate crimes. These crimes involve specifically targeting members of specific groups. Those specific identities protected by hate crime legislation include race, gender, religion, age, disability, sexual orientation, as well as others. “Reckless endangerment,” for example, is one of the crimes that can be classified as a hate crime when targeting an individual based on their race. To include Amy Cooper’s behavior under this category would be expanding the current understanding of reckless endangerment, but it could be a route to adequately identifying the power being wielded and the threat being made.

This crime possesses both mens rea and actus reas elements; Cooper shows disregard for the foreseeable consequences of her action, and her behavior imposes a substantial risk of serious physical injury to another person. Note that the accused person is not required to intend (aim explicitly at) the resulting or potential harm in order to qualify as reckless endangerment. If, however, a case could be made that Amy Cooper was, in fact, intending for Christian Cooper to be harmed by her actions, the crime would qualify as some degree of attempted assault. Regardless, the distinction that is important here is that Amy Cooper is aware of the risk of harm she is placing Christian Cooper in by drawing police attention to him, but she is either disregarding that risk or marshaling that risk (bringing us into the realm of intentionality).

It’s not hard to imagine a potential objection claiming that Amy Cooper can’t know the danger her phone call places Christian Cooper in, and therefore can’t be held responsible for the harm that might ensue. But that would suggest at least culpable negligence, given the many recorded and shared instances of police violence towards Black people and the fact that Amy Cooper pointedly racializes the interaction.

To appeal to negligence, Amy Cooper would have to claim to not have recognized that her actions drawing police attention to Christian Cooper in Central Park would create a substantial risk of physical injury — she would be claiming to be unaware of the systemic violence that she is wielding.

To paraphrase Christian Cooper, we live in the world of Ahmaud Arbery, whose death again showed that assumptions made about Black men mean that even jogging while Black can be a serious risk. We also know that relaxing in the comfort of one’s own home can put Black people at risk of serious threat when confronted by police (#BreonnaTaylor, #BothemSean and #AtatianaJefferson). So can asking for help after being in a car crash (#JonathanFerrell and #RenishaMcBride), having a cellphone (#StephonClark), playing loud music (#JordanDavis), cashing a check (#YvonneSmallwood), or merely taking out a wallet (#AmadouDiallo).

We have also seen that the assumptions made by white people put Black people at risk of death when they sell CD’s (#AltonSterling), sleep (#AiyanaJones), walk from the corner store (#MikeBrown), play cops and robbers (#TamirRice), go to church (#Charleston9), or walk home with Skittles (#TrayvonMartin).

It is dangerous for a Black person to be at his own bachelor party (#SeanBell), to party on New Year’s (#OscarGrant), to decorate for a party (#ClaudeReese) or simply leave one to get away (#JordanEdwards), to lawfully carry a weapon (#PhilandoCastile), to shop at Walmart (#JohnCrawford), and to be a 10yr old walking with his grandfather (#CliffordGlover).

When police confront Black people, they are at serious risk to their life when they have a car break down on a public road or have a disabled vehicle (#CoreyJones and #TerrenceCrutcher), get a normal traffic ticket  (#SandraBland), or if they read a book in their own car (#KeithScott).

Police officers use excessive and lethal force when confronted with Black men that run (#WalterScott), ask a cop a question (#RandyEvans), or are in custody (#FreddieGray) or breathe (#EricGarner).

The list goes on. And it should feel overwhelming. The extent of the violence, and the context of the activities that put these individuals at risk, make any claim Amy Cooper has to being unaware of the danger she was placing Christian Cooper in dismissable.

In response to public outcry, Amy Cooper claims to have been scared, not motivated by race and not to have intended any harm come to Christian Cooper. However, both in our moral and legal evaluations of actions, whether or not someone intended the harm or potential harm is not the only standard we have.

Consider the following set of examples. Imagine I have friends over for a bonfire and am excited to use a new purchase “Rainbow Fire.” These packets, when added to a fire, make the flames appear in multiple colors — very exciting. However, because the packets involve chemicals in order to achieve the colorful result, they end up causing harm to those in close proximity to the fire. In effect, my adding the packets to the fire have caused harm to come to my friends. Our moral (and, roughly, legal) evaluation of my behavior is more nuanced than a simple judgment as to whether I intended to cause them harm or not.

Even if I wasn’t harming intentionally, I still was engaging in behavior that DID cause harm. It was a risk I should have been aware of. Packets that make fires colorful, after all, are pretty likely to be full of chemicals, and if I didn’t check the packets, I neglected dangers I should have attended to, and my friends have every right to be upset that I failed to take precautions and appreciate risks.

A step up from this kind of negligence is being aware of risks, but choosing to disregard them. If I read the packet but decided to proceed anyway, I behave “recklessly.” My friends will have moral (and legal) grounds to blame me.

But if I know that the packets will harm you (it’s a guarantee, not just a degree of likelihood), this goes beyond assessing risk or being ignorant of them. Acting knowingly is just short of intentionally, because though I might not be plotting your lung damage and was aiming at something else, I was aware that the lung damage was going to be a result of my behavior, not merely a risk disregarded. This is a level of mental engagement that we take more seriously, morally and legally.

So, even if we take seriously Amy Cooper’s denial of intentionally causing harm, we still have moral and legal concepts with which to evaluate her responsibility. She put Christian Cooper at risk, which is morally and legally problematic no matter what her mental state. And, unlike in my fire example above, she has weaponized race in a way we should hope to be able to acknowledge in our legal framework somehow. We need a means of capturing the unique abuse of power and the violence Amy Cooper threatened Christian Cooper with on the 25th of May.

I hope to have at least offered suggestions of standards that could be used. The mental state, behavior, and power structure that harnesses the racial targeting are all relevant to the legal evaluation of Amy Cooper’s actions. These considerations can give us further tools to establish the particular features of the racist harms in other violent behaviors being recorded every week.

 

1 We can note that often with false report violations, there can be civil suits filed. Civil suits, in contrast to criminal suits, are between citizens instead of between a citizen and the state. They focus on the damage one citizen caused another, rather than crimes (such as assault, theft, trespassing) that the state has determined its own authority to be justified. Civil cases include emotional distress, defamation, etc., and a successful result is typically financial restitution. Civil cases treat potential harms and exposure to risk differently, and so aren’t apt for this scenario.

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The Black Wall Street Massacre, Contributory Injustice, and HBO’s Watchmen

black and white aerial photograph of Tulsa Race Riot

On October 20th, the latest adaptation of Dave Gibbons and Alan Moore’s ground-breaking 1987 graphic novel Watchmen premiered on HBO; its opening scene featured the Tulsa Race Massacre, potentially “the single worst incident of racial violence in American history,” where thousands of buildings were burned and hundreds of black Oklahomans murdered in the Spring of 1921. Also known as the Black Wall Street Massacre, it was sparked when tensions escalated after a local black shoeshiner was accused of accosting a white elevator operator; because there was talk of an impending lynching, the black community protested, leading to an exchange of gunfire.

For many HBO viewers, the most surprising thing about the scene was not its graphic violence, but the later realization that the Massacre was, indeed, a historical event – an especially bloody episode in American history which, by and large, goes undiscussed in American schools.

Consider now the message that President Donald Trump, embroiled within an impeachment inquiry about multiple cases of corruption and misconduct, tweeted on October 22nd:

“So some day, if a Democrat becomes President and the Republicans win the House, even by a tiny margin, they can impeach the President, without due process or fairness or any legal rights. All Republicans must remember what they are witnessing here – a lynching. But we will WIN!”

Immediately, Trump was criticized for comparing the constitutionally-outlined impeachment process to the lawless brutality of lynching, a form of domestic terrorism almost exclusively used to reinforce racist oppression throughout the country by torturing and murdering black men. For anyone to draw (or defend) such an analogy requires, at best, an embarrassing level of ignorance or insensitivity about the actual history of racial abuse in the United States.

In different ways, both of these cases evidence what Ta-Nehisi Coates has called “patriotism à la carte” – a selective awareness of our national history that highlights certain favorable elements (or, at least, elements favorable to a particular subset of Americans) while quietly ignoring others. To Coates, such an approach to history is dishonest and, when it prevents some groups of Americans from being able to fully understand and engage with their current social situation, oppressive. Rather than cherry-pick the stories which we collectively magnify into cultural icons, Coates argues that an honest treatment of history will include multiple perspectives – even, and especially, if some perspectives emphasize that the U.S.A. (and its heroes) has not always been heroic for everyone: “If Thomas Jefferson’s genius matters, then so does his taking of Sally Hemings’s body. If George Washington crossing the Delaware matters, so must his ruthless pursuit of the runagate Oney Judge.”

Furthermore, both the general ignorance about Black Wall Street and the specific ignorance about the cruelty of lynching demonstrate various forms of what Kristie Dotson, professor of philosophy at Michigan State University, has dubbed “third-order epistemic injustice” or, more simply, “contributory injustice.” In general, epistemic injustice relates to the ethical implications of how society mistreats knowledge claims from various parties. If a woman accuses a man of sexual assault, but her testimony is, as a matter of principle, treated with skepticism, then she may be the victim of first-order epistemic injustice, often called “testimonial injustice,” because her testimony is unjustly discredited. Cases of second-order injustice – also known as hermeneutical injustice – result when a person is not only unable to communicate their experiences, but is prevented from even privately conceptualizing their own experiences, such as in the case of harassment or assault victims prior to the coinage of terms like “sexual harassment,” “date rape,” or “marital rape.”

Contributory, or third-order, epistemic injustice comes about as a matter of what Dotson calls “situated ignorance” which prevents the voices of marginalized groups from contributing to the wider cultural conversation. By “maintaining and utilizing structurally prejudiced hermeneutical resources,” perpetrators of contributory injustice define what “counts” as “real” history; the fact that audience members of HBO’s Watchmen were surprised to learn about the violent mistreatment of the actual residents of Greenwood, Oklahoma may well stem from the systemic “à la carte” approach to America’s racial history that Coates decried. Importantly, those guilty of maintaining dominant perspectives may not consciously realize that they are silencing marginalized groups, but – whether such actions are intentional or not – such silencing remains and, therefore, remains a problem.

And when Donald Trump or others try to dilute the severity of America’s racist past by comparing professional accountability (and potential prosecution for legitimate crimes) to the painful history of the illegal and immoral lynching of innocent people, this also evidences Dotson’s concern to highlight the role that social power plays in maintaining the process of contributory injustice. As she points out, hermeneutical injustice entails that both a speaker and an audience are unable to understand the thing in question; in a case of contributory injustice, the marginalized group can fully conceptualize their own experience, but differential social positions prevent the confused people in power from attending to the less-powerful perspective – it is a lopsided confusion propped up by the ignorance of the powerful.

Interest in philosophical considerations of epistemic injustice, and the wider field of “social epistemology” as a whole, is growing; it remains to be seen just how long it might take for its insights to substantively contribute to the broader public conversation.