An increase in verbal and physical attacks on Asian Americans during the COVID-19 pandemic has helped push forward legislation designed to fix a loophole in Minnesota’s hate crime law.
Updating the way Minnesota responds to hate crimes has been a goal of a community coalition and DFL lawmakers for three years. Doing so this session could be another result of the trifecta that emerged from the 2022 election.
The changes would provide a way to measure the prevalence of bias incidents that either aren’t reported as crimes or fall short of the legal definitions. Driven in the past by Rep. Frank Hornstein, a Minneapolis DFLer who is Jewish, the hate crimes bill is now sponsored by Rep. Samantha Vang, a Hmong-American DFL lawmaker from Brooklyn Center.
“As an Asian-American woman, this is also personal,” Vang said. “During the pandemic, with the rhetoric being used to blame Asian Americans for the coronavirus, not just me but the Asian American community felt unsafe for the first time in a long time.”
“During the pandemic we’ve seen online and offline videos of violence and harassment and abuse against Asian Americans. The community is asking me what can I do. But the state right now doesn’t have the infrastructure to report what is actually happening on the ground to our communities.”
That is the new initiative in House File 181. Separate from the reporting of hate crimes to the police — reports that are collected and reported annually by the state Bureau of Criminal Apprehension — the bill sets up a system to report incidents that fall short of criminal acts or are not reported because the victim chooses not to. People could report events to community groups that might be more trusted. And those reports could be gathered to provide a fuller idea of what is happening on the ground.
Rebecca Lucero, commissioner of the state Department of Human Rights, told the House Public Safety Committee last week she supports expanded options for people who face slurs or verbal attacks to report them. She said her office and state lawmakers would then have a better idea of the volume of such incidents.
“Using the data collected can help you and community groups inform next steps — education, outreach or some other decisions you decide to make,” Lucero told House members last month. Neither the human rights law or the hate crimes provisions apply, for example, to slurs shouted at a person because of their race, she said.
How often does it happen? Lucero said reports are anecdotal and some incidents aren’t reported to anyone.
“But for many incidents that occur that may not be criminal, there is no coordinated, consistent tracking, reporting, analysis and recommendations for next steps.” Lucero said. “Even if it is a crime, the police are not getting called, there will not be an investigation or a citation, so it will never be documented or tracked. No one will ever know about it except that person and community members who feel the residual effect.
Under the Vang bill, Lucero’s department would be charged with soliciting information from school districts, charter schools, community organizations and individuals and compile them into an annual report. A House staff summary of the bill is here.
While reporting to organizations that advocate for Asian American, Black, Jewish or Muslim groups wouldn’t necessarily lead to a crime report, it would help capture the actual prevalence of incidents, Beth Gendler, executive director of Jewish Community Action, told the committee. She is part of a coalition that has been working to update the bias laws. Police agencies and advocates estimate that two-thirds of crimes covered under bias statutes are never reported to police.
Reported incidents rise
Hnuchee Vang, director of policy and advocacy for the Coalition of Asian American Leaders, said the Hmong community experienced an increase in slurs and attacks during the COVID-19 pandemic. She described one person receiving a note on their home with a racial slur and telling them to take their virus back to China.
She said incidents are underestimated “because they fear retaliation or worry about rocking the boat if they speak up.”
The most-recent state crime report by the Bureau of Criminal Apprehension came out last August and covered 2021. It found that crimes covered by the hate crimes law rose with 238 reported incidents. Those incidents involved 271 victims and 181 offenders. The total reported in 2019 was 146
Of those 238 incidents in 2021, 40.3% were motivated by anti-Black or African American bias, the BCA reported, 10.5% were anti-gay, 8.8 percent were anti-white and 8.4% were anti-Jewish. The 16 reported incidents aimed at Asian Americans were 7% of the total. In 2019, there was one incident motivated by bias against Asian Americans.
The other sections of the bill take on segments of the current law that have been considered vague or incomplete. Currently, a list of criminal offenses can be subject to enhanced penalties if they can be proven to be motivated by hate against particular groups. Covered now are crimes motivated due to a person’s actual or perceived race, color, religion, sex, sexual orientation, age, disability or national origin. Police agencies collect information on those incidents for the BCA and the Peace Officer Standards and Training Board, often referred to as the POST Board, oversees training to help police officers recognize crimes motivated by bias.
HF 181 expands the categories of crimes motivated by bias to include gender, gender identity or gender expression as well as crimes against people who associate with someone in a protected group.
The bill also attempts to close a loophole in how the law treats property crimes meant to intimidate or harm protected individuals or groups. In 2019, someone spray-painted threatening and antisemitic messages on a south Minneapolis public school just five blocks from Hornstein’s home. Included was a swastika and a slur against Jews. But because the vandalism wasn’t to property owned by someone covered by the hate crimes law, it is unclear if the law applies. That is, graffiti on a synagogue would fall under the law, but the same messages on a building across the street might not. And public buildings, such as the Minneapolis school where the antisemitic message appeared, also might not be covered.
The bill adds language that vandalism “motivated in whole or in part by an intent to intimidate or harm any individual or group of individuals” is now subject to enhanced penalties. That is meant to cover not only the school vandalism in 2019 but vandalism on property that is rented or used by a targeted person or group but not owned by them.
Data collection vs. speech and association
There were concerns raised about the bill from both the political left and political right. Rep. Walter Hudson, R-Albertville, said he opposed the new reporting mechanism for incidents that aren’t crimes.
“I am deeply concerned about the implications of this bill,” Hudson said. “We’re going to create a database of incidents that have no objective standard determining whether or not they violated the law, whether or not they had anything distinct from normal speech, an incident of bias.”
Hudson said someone could post on social media a Bible verse that defined marriage as being between one man and one woman or opposed certain “sexual proclivities.” Would that be an incident reportable under the bill? he asked.
Lucero said the section Hudson was citing is not about crimes and carries no penalties or investigation. The current human rights law does allow reporting to her office of allegations of discrimination and bias under that law. They are investigated and can lead to civil penalties.
The new reporting section is separate from that and leads to data collection about the prevalence of bias incidents.
“Section 1 is about ‘what’s going on here?’” she said. “Section 1 is not about crimes.”
The committee also received a letter from the ACLU of Minnesota that raised questions similar to those raised by Hudson.
“We are also cognizant of the fact that bias, bias-motivated violence, and individual and community identities may be perceived as associations with certain groups,” wrote ACLU policy director Julia Decker. “However, the expansive provisions in HF181 introduce the prospect that speech and/or associations unrelated to a particular action may be inappropriately used to infer biased motivation. While an individual’s words or associations may be repugnant to some, if they are not directly connected to a specific action, using them to impose criminal penalties does raise constitutional concerns.”
In an interview, Vang said she thinks both criticisms are not on point because the bill doesn’t expand the current hate crimes law and contains no new crimes or criminal penalties. The criticisms seem aimed at the community reporting section of the bill that does not include any criminal sanctions.
She said she is working with Lucero and others to fine tune the bill, which remained in the Public Safety Committee. Its next stop will be the House Judiciary and Civil Law Committee.
Correction: This story was updated to correct the name of ACLU policy director Julia Decker. An earlier version of the story gave her first name as Julie.