Niloofar Asgari, MPA Staff Writer, Brief Policy Perspectives
The United States is known for its vast diversity. However, the prevalence of hate crimes remains a concern for victimized individuals and communities, law enforcement agencies, non-profit organizations, businesses, and other entities. According to the FBI, a hate crime is “criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.” Hate crimes can make entire communities feel unsafe and unwelcome and increase feelings of stress, depression, and anxiety among individuals directly impacted by a hate crime. Most hate crimes go unreported, but awareness of their occurrence and ways to combat them nonetheless remain relevant for public administrators and policymakers across the country. One way Indiana and other states hold perpetrators of hate crimes accountable is through laws that allow law enforcement agencies to charge crimes specifically motivated by negative bias and judges to impose harsher sentences if evidence for a hate crime is found.
For a long time, Indiana was on the list of states that did not have hate crime legislation in place. While Georgia, Wyoming, South Carolina, and Arkansas still do not have hate crime laws, Indiana passed hate crimes legislation (SB 198) in 2019. The law explicitly protects against crimes committed based on race, color, religion, national origin, sexual orientation, disability, and creed. The law also protects a victim’s or group’s “real or perceived characteristic, trait, practice, association, or other attribute the court chooses to consider.” However, critiques from inside and outside of Indiana contend that the law lacks explicit protections based on age, sex, and gender identity. Nonetheless, Indiana’s law stands out because of its potential implications on efforts to pass similar legislation in other states.
Hate Crime Legislation in Indiana
Passing a hate crimes law in Indiana has been a challenge, in part because not everyone agreed that a hate crimes law was needed. In the past, Indiana failed multiple times to pass hate crimes legislation due to disagreements on the language included in the bills and partisan politics. As hate crimes continued to affect Hoosier families and communities, a couple of incidents brought attention back to passing a law. In 2018, Congregation Shaarey Tefilla, a synagogue in Carmel, Ind., was vandalized with swastikas and Nazi imagery. Elected officials, public administrators, and community members swiftly condemned these actions. Hate crimes in Indiana have also affected the family of Mustafa Ayoubi, who was killed on in February of 2019, by a perpetrator yelling anti-Muslim slurs. In seeking justice for the Ayoubi family, Marion County Prosecutor Terry Curry said that Indiana’s lack of a hate crimes law prevents him from charging the perpetrator with a hate crime and that “crimes motivated by hate are real.” Prosecutor Curry went on to say, “some in the legislature wish to push the dialogue into the hypothetical, but those of us who listen to our neighbors understand that this is an unfortunate reality in our state.” These disturbing instances prompted vigils, conversations on the state’s inclusivity, increased advocacy from people and organizations, and attention from elected officials and public administrators. When considering that the majority of Hoosiers (84 percent of Democrats, 75 percent of independents, and 63 percent of Republicans) and a significant number of universities and private companies supported passing a hate crimes law, Gov. Eric Holcomb’s push to sign hate crimes legislation became even more relevant. The combination of these factors may be informative in determining ways that Arkansas, Georgia, South Carolina, and Wyoming could imitate or diverge from Indiana’s example.
Before the law’s passing, Indiana Democrats attempted to include an expansive list of protected categories, which Republican House Speaker Brian Bosma opposed. In earlier bills that failed to pass, no categories were listed. Afterward, despite Democratic opposition arguing that the bill’s language was not expansive enough, the current wording of the law passed the legislature and was signed into law.
Comparing Indiana to Other States
As the 46th state to pass hate crimes legislation, Indiana’s officials are now allowed to prosecute perpetrators for targeting a person or community’s status as part of a protected group of people by creating a sentence enhancement mechanism. This technicality led the Department of Justice (DOJ) to proclaim that Indiana is no longer on the list of states that do not have a hate crimes law.
However, not explicitly including sex, gender, and gender identity as protected categories and having vague wording in other parts of the law concerns the Brennan Center of Justice and the Anti-Defamation League (ADL). According to a statement issued by Anti-Defamation League Midwest, the bill not only omits categories, but also includes “broad, undefined terms as ‘belief,’’ practice,’ and ‘association’ – unconnected to personal characteristics, immutability, and a history of targeted discrimination/violence.” They say that the law could then “encompass virtually any crime targeting a person for virtually any reason, thus diluting the concept and undermining the intended purpose of a hate crimes law.”
Indiana Senate Republicans responded to the criticism by explaining that SB 198 does cover all types of bias crimes and that even categories not explicitly listed, like gender, are still protected. This response was echoed by Judge Frank Sullivan, who said, “classes like gender identity, gender, age, immigration status, citizenship, marital status – a whole range of classifications that are not enumerated in there – are nevertheless protected by this statute (SB 198).”
While virtually all hate crime laws in the United States protect race, ethnicity, and religion, not all laws protect sex, gender, gender identity, age, and other factors. Age is not a commonly protected trait across all states. However, legislation in Vermont and Washington, D.C. explicitly mention age, sex, and gender identity as protected categories. This inclusivity is not the norm, as most state legislation, such as in California and Connecticut, only mentions sex, gender, and gender identity.
Though Indiana (via IC 10-13-3-8) and 29 other localities require data collection of hate crimes, seventeen states with hate crime laws do not require data collection on hate crimes. In addition to the lack of comfort victims may feel in reporting a hate crime, the inability to gather accurate data of reported hate crimes across the country creates a discrepancy. This discrepancy can have repercussions on the FBI’s attempts to develop accurate reports on hate in America and how to combat it.
In the states that do not have a hate crimes law, officials and advocates have been citing the need for legislation. Efforts to pass a hate crimes law in South Carolina and Georgia are especially notable. With hate crimes occurring in other states, and South Carolina’s hate crime rate increasing in 2018, proposed legislation by Rep. Beth Bernstein (D-Richland) already has bipartisan support. After an attack on a historically black church, advocates in Georgia are also fighting for a hate crimes law to be passed after Georgia’s previous law was struck down for being unconstitutional. While opposition still exists in both states, demonstrated effort on the ground raises the possibility of future hate crimes legislation in each state.