Is Wisconsin’s Hate Crimes Law Working?
Victim advocates say crimes go underreported and unseen
Photo by Brian Turner, Flickr CC
Wisconsin has a hate crimes law on the books that is supposed to protect those who intentionally are targeted for a crime based on their race, religion, color, disability, sexual orientation, national origin or ancestry.
But those speaking for victims of hate crimes say that the law isn’t effective because victims aren’t willing to report their crimes, law enforcement officers don’t take their complaints seriously and the bias apparently underlying the hate crime is often difficult if not impossible to prove in court.
The advocates spoke at last week’s public session in West Allis of the Wisconsin Advisory Committee to the U.S. Commission on Civil Rights, which focused on civil rights and hate crimes in Wisconsin.
According to the FBI database on hate crimes, in 2014 Wisconsin had a mere 51 reported hate crimes, 28 of which were race based, nine targeted an individual’s sexual orientation, six were religion-based, five were due to an individual’s ethnicity and three were motivated by an individual’s disability.
Eleven of those hate-based incidents occurred in Milwaukee.
The advocates say the FBI’s number is wildly wrong and that the vast majority of hate crimes goes unreported. Reggie Jackson, board chair and head griot at America’s Black Holocaust Museum, testified that looking at more robust data sets shows that just one in 35 hate crimes is reported as such.
“The huge underreporting of hate crimes makes us keenly aware that many victims find no confidence in the legal system to provide them justice when they have been victimized,” Jackson said.
Who Is Protected?
Wisconsin’s law seems to protect those who are often targets of hate crime, but unlike some other states, it does not cover crimes motivated by gender, gender identity, age or political affiliation, according to data compiled by the Anti-Defamation League (ADL). Nor does the state mandate law enforcement training on hate crimes, the ADL found.
Federal law covers crimes motivated by race, religion, national origin and engaging in a federally protected activity, such as voting. It does not include sexual orientation, gender, gender identity or disability, notes the Human Rights Campaign.
Stanislav Vysotsky, assistant professor of sociology and criminology at UW-Whitewater, told the committee that hate groups have a high profile in the media, but their members aren’t responsible for the most hate crimes.
The most typical hate crime is “a crime that is committed by people who often are not highly committed hatemongers,” Vysotsky said. These individuals are “looking for something to do,” people who otherwise commit assaults, intimidation and vandalism.
Donald Downs, UW-Madison professor of political science, law and journalism, said that Wisconsin prosecutors apply the hate crimes law in a limited way so as not to run afoul of the First Amendment, since an individual cannot be punished for their beliefs—only their actions based on biased beliefs.
Wisconsin’s law is written as a penalty enhancer, meaning that prosecutors can increase the penalty for certain crimes if they were motivated by bias against a protected group. To get a hate crimes conviction, the DA must be able to prove beyond a reasonable doubt that the crime was directly motivated by, for example, racial bias or hatred of members of a certain religion.
Jackson, of the Black Holocaust Museum, said that’s part of the problem. Jackson suggested scrapping the penalty enhancer in favor of a sentencing aggravator. As Jackson explained, penalty enhancers must go before a jury and be proven beyond a reasonable doubt. Sentencing aggravators don’t face those high barriers. Instead, a judge uses them to lengthen the guilty party’s sentence.
“A penalty enhancer is used as a tool to scare defendants into plea bargaining and is often dropped after a plea deal is made,” Jackson said. “On the other hand, a sentencing aggravator plays no role in the trial or plea bargaining phase. A judge can use it to impose a longer sentence during the penalty phase.”
Jackson cited figures showing that whites are far less likely to see racial bias in a variety of contexts than African Americans do; whites are also more likely to serve on juries than African Americans. That combination of factors makes proving a hate crime in court very difficult, Jackson said.
“White jurors may find it more difficult to believe racial bias was a cause of incidents in many cases,” Jackson said.
But do hate crimes laws actually deter crimes based on bias?
“I can say with a lot of confidence that amongst members of violent, racist organizations, hate crimes [law] is not a deterrent,” Michaelis said. “I could not think of any of my peers back then who would have hesitated in the commission of a hate crime because of hate crimes sentencing. As a matter of fact, I think it would have been quite the opposite. If you are a hard-core white supremacist, being convicted of a hate crime would be a badge of honor. It would not be something to deter you from committing one.”
Other participants discussed the impact of the hate crime law and societal biases on their own communities.
Karen Gotzler, executive director of the Milwaukee LGBT Community Center, testified that the law’s failure to recognize gender identity as a motivator for a hate crime is a major omission.
“Of particular note is the physical assault and murder of many transgender women of color in the United States just in the past 18 months,” Gotzler said. “The numbers are increasing dramatically. These murders often are not reported as hate crimes and they are often not reported as crimes against transgender individuals.”
Gotzler said that during a recent discussion group with 18 members of the LGBT community, all said they had been a victim of a hate crime, yet none had reported it.
“These crimes go unreported due to victims’ fear of exposure or increased attention to their sexual orientation or gender identity, the public perception of wrongdoing by them as victims or even retaliation for reporting,” Gotzler said.
She added that law enforcement officials aren’t willing to use the hate crimes statute as often as they should.
“Many individuals in law enforcement express to our advocacy staff the belief that there will be insufficient evidence for prosecution and that hate crime reporting requires too much extra work on their part,” Gotzler said. “It is the experience of our staff at the center that many within law enforcement struggle to understand that these are legitimate crimes.”
Thai Vue, executive director of the Wisconsin United Coalition of Mutual Assistance Associations, noted three high-profile crimes against Hmong individuals in Wisconsin. He said Wisconsinites need to be educated on the Hmong community’s importance to the U.S. during the Vietnam War as well as their culture and history.
“Hmong worked hard for peace and freedoms,” Vue said. “I hope that building a greater awareness about the Hmong people gives you a greater chance to understand and greater tolerance.”
‘We Need to Engage in Mindset Shifts’
Can a hate crimes law actually prevent these crimes of bias from occurring? Not unless we make broader changes in our culture, said Serve 2 Unite co-founder Pardeep Kaleka.
Kaleka said that crimes targeting Sikhs have escalated since 9/11 in part because of widespread hatred toward immigrants and a lack of understanding of the Sikh religion and culture.
“We have been an invisible population severely underrepresented in the social, professional and political reality of city, state and national politics,” Kaleka said.
Kaleka is the oldest son of Satwant Singh Kaleka, the president of the Sikh Temple of Wisconsin in Oak Creek, who was murdered along with five fellow Sikhs by Wade Michael Page, a white supremacist, on Aug. 5, 2012.
He said attacks on Sikhs and immigrants continue to occur. For example, during the Aug. 13 Sherman Park uprising, a BP gas station was set on fire. Inside were two workers, one of whom was a Sikh immigrant, yet the fire and looting of the station were not reported as a hate crime.
“While the fire consumed this gas station, the crowd continued to loot, throw rocks, chant ‘Fuck British Petroleum,’ ‘Fuck the police,’ ‘Black power,’” Kaleka testified. “This attendant did not come out for 15 minutes while barricaded inside of a fire because he felt so threatened and intimidated. Afterwards, there was a very visible outcry for justice for police lives, for black lives. But I did not hear the same cry for Sikh lives, immigrant lives, Middle Eastern lives, indigenous lives. No mention of this constituting any kind of hate crime.”
Kaleka said that besides addressing the hate crimes statute, policy-makers need to reduce bias by looking at its deeper root causes and the trauma they produce.
“Understanding civil rights concerns such as hate, racism, xenophobia, homophobia [means understanding that they] are as much products of trauma as they are historical injustices; [they] therefore cannot be simply addressed by laws,” Kaleka said. “We need to engage in mindset shifts if we are truly to become effective.”
Participants also suggested enhanced training for law enforcement on hate crimes and supporting community liaisons to encourage reporting of hate crimes.