Hate Crimes Against the AAPI Community and the Newest Form of Resistance

This podcast was recorded in May of 2021. The transcript has been edited for length and clarity.

Transcript

Eura: Hello! I am Eura Choi, and my partner Lucy Tu and I are staff writers for the Harvard Undergraduate Law Review (HULR), a student-run publication at Harvard College dedicated to investigating society’s most pressing legal issues. 

As a result of the COVID-19 pandemic, anti-Asian sentiments and incidents of violence have surged around the country. AAPI advocates have criticized social and political responses to anti-AAPI violence and the minimal recognition of these incidents as hate crimes. In the wake of the March 2021 Atlanta spa shootings that left eight individuals dead — six of whom were Asian-American women — Americans are once again asking a tragically familiar question: When is a mass shooting legally considered a hate crime in the U.S.? And what difference does this label make? 

Lucy: In this podcast, we speak with Manjusha P. Kulkarni, a racial justice attorney and an activist who has worked on behalf of communities of color for over twenty years. In March of 2020, she and the Asian Pacific Policy and Planning Council helped found the Stop AAPI Hate reporting center to combat the rise in anti-Asian American racism. Today, Kulkarni discusses the legal underpinnings of hate crime prosecution with the Harvard Undergraduate Law Review.

Manju: Thank you so much for having me. This is really a great honor and privilege, and I'm happy to be with you both today. In terms of how I got my start, it was really even before I went to law school. Just after college, my first job was working at the Southern Poverty Law Center. It was an opportunity that whet my appetite for doing more work in terms of race, racial justice, and looking for opportunities to address some of what our communities’ experiences were in terms of discrimination, in terms of hate and racism directed at Asian American communities.

Eura: Thank you, that's really inspiring. What would you say is unique about working in the legal field of racial justice and advocacy?

Manju: You know, I think that there are so many opportunities by being a civil rights attorney. I think there are a number of different fields under that broad range rubric. That includes, for example, right now, a lot of what is centered on voter suppression laws and fighting those issues related to police violence. Even areas around anti-poverty measures, whether they be in health or public benefits. Of course in terms of racial discrimination itself, I think that this is really a broad field, and one in which many of us are seeing that discrimination, rather than being really something that took place in the past, is with us even today. And we see that really we need, in some cases, stronger civil rights laws to be able to seek benefits for our community members.

Lucy: Thank you so much for your thoughtful response. And to transition into our conversation regarding current events and the discussions that have been circulating around hate crimes in light of those events, to your understanding what is the definition of a hate crime and, what is the legal and social importance of that hate crime label?

Manju: It was actually in law school, in the mid 1990s, when I was first exposed to the idea of hate crimes. That was sort of the beginnings of the field in terms of the ways in which attorneys and policymakers were looking to address what are not simply crimes against individuals, but crimes against communities and marginalized communities in particular, whether you’re talking about African Americans, Latinx communities, Asian American and Pacific Islanders, LGBTQ, Jewish communities and, of course, even broader, women and the misogyny that they experience.

In terms of the definitions of hate crimes, really it is something that has an underlying criminal element. Most often we think of that in terms of battery, sexual assault, rape, and homicide. Those are the sort of the most common that involve damage to the human body. And then there are those that involve damage to property, and those can also be considered hate crimes, but you do need the underlying criminal element, so something cannot be a hate crime if it’s not in fact a crime. And a crime is, of course, anything that we deem in our society to be severe enough to exert the consequence of penal restitution, so people spending time incarcerated. And then we have to look at, why do we incarcerate people? Is there a deterrent effect? Is there again the restitution element and consequences and accountability? Is there an opportunity to prevent those people by incarcerating them to prevent having them out in society to do the same crime? 

With hate crimes what you add to that is the element of hate, because what we have determined as a society is that those types of acts like say, for example, the legacy of a hate crime of burning a cross in a yard, something that was done very often by the KKK in much of the 20th century, is that it sent a message, not only to that individual and involved destruction of their property but also was a signal to others in the community, that they were not welcome based on their race. 

One thing I want to share with your audience is the fact that at Stop AAPI Hate, we have found that the vast majority of incidents directed against Asian Americans and Pacific islanders do not actually involve an underlying criminal element, they are hate incidents and not hate crimes. And that’s a very important distinction when you think about what solutions are important, and I think too often journalists and policymakers are equating the two, and really that’s inappropriate and something that we should challenge in every instance.

Lucy: That’s really fascinating, and to sort of expand on that point, what is the process of prosecuting a hate crime versus combating hate incidents? And how do you go about that in addition to looking at other charges or challenges present in a legal setting?

Manju: I’ll start with your second question, which is if they’re not hate crimes, what are they, right? So the hate incidents, for us, are 90 to 95% of what we receive at Stop AAPI Hate. They can involve verbal harassment on their own, and those are not crimes or even civil rights violations. In the United States, we believe in free speech and so we allow for name-calling. We allow for comments to be made as long as they don’t also involve assault, you know, physical assault or battery. The other category is civil rights violations, and so, when we look at civil rights violations, these are things that are also against the law, but for which we do not incarcerate individuals. So this is workplace discrimination, discrimination in housing. It can include refusal of service in retail, it can involve refusal or being barred from transit or transportation. And so, these are all things that as a society we’ve deemed to be also inappropriate and unacceptable, but for which there are largely civil fines, and those fines also are directed toward institutions most frequently and not against individuals. And so, I think when we look at the issue, for example, of structural racism, civil rights violations are really important to also prosecute, and that means going after perhaps a Walmart and not simply an employee of Walmart if there is systemic or systematic discrimination. It means going after ride-hailing services like Uber and Lyft if many of their drivers are discriminating against passengers. And it can also call for things like injunctions; it can call for broad sweeping changes. In fact, the beginning of my legal career was spent working on the Denny’s Consent Decree. Denny’s restaurant chain, at that time, was the largest sit down restaurant chain in America. And there was a class-action lawsuit brought on behalf of all African Americans and a subsequent suit brought against on behalf of Latinx communities because across the country their employees were discriminating against African Americans and Latinos. And so, we were able to put in broad sweeping measures in terms of training all employees, and in terms of doing civil rights testing of different groups of people going into their restaurants and then investigations of claims that were made by consumers or restaurant patrons.

So when you talk about your other question, how do we prosecute these? Well, in terms of crimes, those are prosecuted by the DA most often or the Attorney General. So, the DAs are located most often by county, and Attorney Generals are for individual states. And as most of our criminal laws are state laws, not federal laws, that’s the right — those are the right entities to prosecute when we talk about civil rights violations. Those can be prosecuted by city attorneys. They can also be prosecuted by the Attorney generals, and they can be brought by individuals. So that’s a key difference, because I cannot bring a criminal action against an individual say if I were to be sexually assaulted. That would have to be brought by the DA, but I could bring civil charges as an individual suing on my own behalf, not on behalf of the state.

Eura: Thank you for the clarity on the legal process on a hate crime versus a hate incident. So on that note, what kind of reforms would you like to see when it comes to our existing legal procedures in the U.S. around hate crimes and incidents? And also how do you think the Asian American Community can cooperate with other racial groups as a part of a greater coalition of racial minorities in this endeavor?

Manju: That’s a great question. I think that when we look at some of the reforms that are needed right now, we encourage a three-prong approach to those. First off, we need resources for our local community-based organizations, right? Including, for example, after Atlanta, there were a number of groups that came to the aid and assistance of the victims, the families of the victims who are at the massage parlor, who are working at the massage parlors. And so, you know they need mental health resources. They may need legal referrals, immigration assistance, so that’s why we need those local resources. 

In addition to that, there are programs, like the one here in Los Angeles called LA VietAID which operates using a 211 model, so instead of calling 911 or what you might do for a hate crime. In LA you can call 211 or issue an online report to 211, and they track hate incidents, and they actually then connect individuals with one of six organizations that serve those groups. So, for example, A3PCON, my organization, will help an individual who is Asian American Pacific Islander and has experienced a hate incident. Or for the African American Community, it is the Brotherhood Crusade. For the Latinx community, it is a group called CHIRLA. For LGBTQ folks, it's the LGBT Center of Los Angeles. So in this way, they get the resources they need in a culturally appropriate, linguistically competent means, and so, that’s the first prong that I recommend. 

Number two is actually developing a civil rights infrastructure. What happens is if there’s a hate crime, individuals would report that to their local law enforcement and law enforcement is supposed to—but doesn’t always report it—to the FBI and Department of Justice, and so that way, we have a registry essentially of all hate crimes that happened in the United States. Again, assuming that they’re all reported to the FBI, we don’t have anything similar on the civil rights side. So what we recommend at Stop AAPI Hate is the creation of local programs like LA vs. Hate and opportunities for them to report also to the FBI and the Department of Justice, so we again have an understanding of what’s happening, and that we also then have means to address those problems until then. Stop AAPI Hate is there, and we recommend as the nation's leading aggregator of this data that folks share their incidents with us, through our online reporting form. 

The last thing I’ll say is that we need stronger civil rights laws. There are some gaps in our civil rights laws on a federal level, and we know that also five states don’t even have laws governing discrimination in public accommodations, including Georgia, for example. Alabama, Mississippi, Texas, and North Carolina. So if you were actually discriminated against, say when you go to a restaurant or you go to a grocery store or pharmacy, you don’t have the ability to bring action in those states using state laws or you would only be able to rely on the federal laws.

Lucy: Great. And to delve further into that subject of multiracial solidarity, there has been a general shift in many communities away from relying on law enforcement, especially as a result of ongoing Black Lives Matter protests and police brutality protests. However, with the surge in anti-AAPI violence, many community leaders have been calling for better connections with local police departments charged with investigating hate crime incidents to improve the enforcement of existing hate-crime laws. How do you think we can reconcile the social and legal balance between these racial issues?

Manju: I don’t think it’s an either-or approach that we need to take. I think we can do both. For example, at Stop AAPI Hate and A3PCON, we have worked with local law enforcement to develop a resource card that can be used by Asian American communities in their native language. It gives them information about how to call A3PCON Member organizations. So in the Korean community, which groups to call, and the Chinese, and the Filipino, etc. So they can get that direct help if they have experienced a hate crime, and if they have reached out to law enforcement. 

Having said that, I will add that we think that we’re not going to police our way out of this problem. Even if we were to prosecute each and every hate crime that happened in America, we’d only be addressing 5% of what Asian Americans and Pacific islanders are experiencing across our country. And we know that those issues are very much alive today. Over the weekend, Daunte Wright was killed, you know, in the great Minneapolis area, and so, this is not going away. Certainly African American communities are bearing the brunt of police violence, and there are some very significant issues, and so, we support Black Lives Matter movement, and also work in solidarity as you noted with our African American and Latinx sisters and brothers on those sorts of issues. 

I want to add one other thing for your listeners, which is that the state auditor of California found in a report that, in fact, there were so many gaps in hate crimes enforcement, and so, some of that needs to be addressed as well. Here in California, some law enforcement agencies fail to identify up to 50% of cases as a hate crime. And you saw that even in Atlanta, where the police officer provided exculpatory information about the perpetrator at the very first press conference to give him essentially an out, right? To take him at his word that he didn’t commit it, did not commit a racist act. You know, those types of things are extremely problematic, so we know we need training for law enforcement. Number two, the state auditor found that they don’t report in all instances to the Department of Justice and FBI. And number three, it doesn’t always get prosecuted successfully as a hate crime compared to most crimes which are prosecuted successfully: upwards of 85% as opposed to only 50% of hate crimes. So a lot of work needs to happen, and so we take, you know, an approach of doing both the advocacy against police violence and supporting our African American sisters and brothers, and then we also are still willing to work with law enforcement to improve what they’re doing.

Eura: Thank you for your insight. I think it definitely gives us, and especially the listeners, a lot of food for thought. So looking forward, we’re seeing that a lot more young people are aspiring to advocate for racial justice in an era of change. So what are some courses of action you think young people, who may not have significant legal experience or expertise, can take to fulfill their hope for a more equitable society?

Manju: There is so much that can be done right now, and in fact I’m very heartened by what I’m seeing in terms of the galvanizing of Asian American youth. We have a youth report, by the way, done by individuals who are part of our youth internship or youth campaign. Last year, we had 100 young people from across the country who participated, and 20 of those individuals wrote a report called “They Blamed Me Because I Am Asian,” where they looked at the history of our communities. They spoke with 900 of their friends and classmates to find out what is, in fact, going on, among us. And then they issued recommendations. And so, for me, that’s really a model of what young people can do right now, is in their own communities, speak to their school boards, share with their teachers, you know, what's happening and do presentations. I’ve been speaking to some schools, including my younger daughter’s school, next month to share our data, and I know that there will be others to share recommendations about what schools can do in this moment. 

I’m also really encouraged by just the conversations people are having to boldly discuss issues that have not heretofore been discussed. The fact that we’re often asked where we’re from or where we are really from. Having our names mispronounced routinely. Even those who are Korean or Chinese adoptees of white parents, you know, really sharing, for the first time with their parents, their experiences. So we need efforts on all levels. We need civic engagement. We need everyone to vote, but we also need those cultural conversations, where people are sharing with friends who may be Black or Latinx, what they’re going through right now, how traumatic it is, how fearful they might be. 

You may have seen the cover of The New Yorker last week that had a picture of a mom and a daughter at a New York subway and the child is frightened. And that’s what many of us face right now. We’re worried when our family members go out: our grandparents, even our parents, and our young people. So this is not a moment to rest on our laurels of past work, but really to get activated and to be part of what is the newest movement of Asian Americans, the newest form of resistance. I don’t want to say that this is the first because it’s not. There were folks who fought against Chinese exclusion, who fought against Japanese American incarceration, who fought against the backlash of 9/11. So this is now an opportunity for the newest generations to work alongside the OG among us to fight for racial justice.

Lucy: Thank you so much for the answer, and thank you for supporting such an insightful and engaging discussion throughout this entire podcast. Is there anything else or any final thoughts that you would like to share with us or our audience that we haven't covered so far?

Manju: I would just say that it’s important for young people to know and understand their history, and too often they’re not learning it. Even my daughter, who will be graduating this year — in her AP American History textbook, it said something so abhorrent as Africans offered their labor to America. No one offered their labor. It was not an offer; it was a taking of the most violent form. And so, if we have things like that, even today in California, even in AP American history textbooks, you can imagine that so much of our history has been left out, aside from even just the incarceration, aside from the Exclusion Act, there’s so much in the way of our communities being robbed, deprived, violated repeatedly in American history. And it’s not until we understand that history that we can make connections and know that for many of us, there’s been the effect of white adjacency that has enabled us to be more or less immune from a lot of the worst racism experienced by African Americans or Latinx communities. But we know now that we are not immune, and so I’m understanding that the idea of America is really aspirational. It’s not our present; it hasn’t been our past, but it can be our future.

Lucy: Really well said. Thank you again for such wonderful insights.

References

Waldron, Jeremy. "Homelessness and the Issue of Freedom." UCLA Law Review 39, no. 2 (1991): 295.

Photo Credit: Manju Kulkarni