LIHUE — For the past 11 years, the state Attorney General has kept tabs on the number of hate crimes reported statewide. In those 11 years, Kauai has yet to report a crime that was motivated with a bias. Some
LIHUE — For the past 11 years, the state Attorney General has kept tabs on the number of hate crimes reported statewide.
In those 11 years, Kauai has yet to report a crime that was motivated with a bias.
Some groups claim hate crimes are underreported. A state data expert who helped explain the Hate Crimes Act to legislators 12 years ago said this is a commonly misunderstood issue.
Paul Perrone, chief of research and statistics for the state Attorney General, said to think the law makes it illegal to register contentious opinions is just not the case — unless the statements proceed felonious behavior.
“A hate crime is a modifier that is added on to an existing offense,” Perrone said. “Calling someone a name is not a crime but harassment is, and it all depends on what they say and what they do.”
Since 2002 there have been 17 hate crime cases statewide. The City and County of Honolulu reported 14 hate crimes since 2002. The Big Island reported two. Maui had one.
They involved 24 bias types with race or ethnicity in 16 cases. Five of the cases involved sexual orientation bias.
Under state law, a hate crime is a felony offense committed by an adult offender. The prosecutor could ask for an additional five years in prison on top of the sentence for the underlying crime.
If an offense was committed by a minor, or if it falls to the level of misdemeanor, it cannot be prosecuted as a hate crime. However, if the prosecutor makes the determination it was motivated by bias, they are obligated to report it to the attorney general.
Special Agent Thomas Simon Jr. said the FBI relies on local law enforcement to compile and report their own local crime statistics. As such, there are natural variances among police departments and how they classify crimes.
The FBI reported 6,718 offenses nationwide were labeled as a hate crimes in 2012. The report is limited to jurisdictions that submit data and does not include Hawaii.
County police departments forward information to indicate evidence of a hate crime in their reports to county prosecuting attorneys in Hawaii. It is up to them to investigate and they are obligated to report them to the attorney general.
Sgt. Rod Green of the Kauai Police Department said investigators watch for statements that indicate bias and may follow up with additional questions to include in their report. They do not initiate queries about bias when questioning victims and witnesses, he said.
Green said one example of periodic problems involves incidents between ship employees and locals. Whether these crimes contain bias is up to the statisticians and the prosecutors, he said.
“Whatever the criteria is, we have had some incidents over the years,” Green said.
The county prosecutor provides an end-of-year summary report to the state attorney general.
The Hate Crimes Act is designed to discourage bias crimes but it must also recognize every argument has the potential for that label, Perrone said. The prosecutor must also determine when a crime presents all the appearances of hate bias but may not be.
“At the end of day you have one person saying this one was and this one wasn’t a hate crime,” Perrone said.
“A hate crime is inherently subjective and with no hard criteria,” he said. “It is up to the prosecuting attorneys of each county to make that determination.”
Less than a month before the state Hate Crimes Act was signed into law on June 14, 2001, two men ages 18 and 19 were charged with setting fire to tents and assaulting campers at Polihale State Park. The campers had displayed a pink triangle flag commonly associated as a symbol of the gay community.
The state dismissed attempted murder charges when the two men pleaded guilty to assault, attempted assault, criminal property damage and unauthorized entry. They were sentenced to four years in prison under the Youthful Offender Act.
Local private attorney Daniel Hempey said he could only speculate as to why there are no reported hate crimes on Kauai.
“We certainly have reason to believe that hate crimes do occur but we never see them prosecuted,” Hempey said.
The federal hate crime definition is any crime motivated by a bias toward a particular race, religion, sexual orientation, ethnicity or national origin, physical or mental disability.
Rebecca Stotzer, an associate professor at the University of Hawaii, Thompson School of Social Work, said the numbers don’t always match up with “reported” crimes versus what is actually happening. She said it’s not clear how police and prosecutors handle hate crimes and this makes it hard to do estimates.
A recent UH assessment noted that 39 percent of lesbian, gay, bisexual, and transgender people who reported crimes against them statewide felt targeted. This included 28 percent of Kauai respondents, she said.
“This doesn’t seem to match up with the ‘zero’ or ‘one’ reports that we are getting from official sources,” Stotzer said.
Part of the problem is fear of reporting, she said. Around 75 percent of respondents said they did not report the hate bias information to police because they felt the complaint would not be taken seriously.
States that have mandatory bias crime training guidelines for law enforcement and criminal attorneys will have better investigations and prosecution when there is evidence of bias motive, she said.
“I am not aware that we have any type of similar training requirements, or that we have any kind of guidelines for processing cases with evidence of bias motive in the state of Hawaii,” Stotzer said.
Finding the resources to effectively investigate and prosecute bias crimes is a challenge, she said, but the lack of them does not adequately explain why the reporting numbers are so low. Other states face the same challenges but still have high reporting — and find institutional ways of addressing the core issues.
“This is particularly interesting given that the Matthew Shepard and James Byrd Jr. Hate Crimes Act at the federal kevel opened up federal resources for states to be able to more effectively investigate and prosecute bias crimes,” she said.
Hawaii utilizes an FBI list of 14 characteristics considered when determining whether an offense is a hate crime. An offense requires the offender be of a different group than the alleged bias-related comments, gestures, drawings or objects meant to offend, frighten or harm the victim.
The common misunderstanding is that people think anyone who says something against someone is going to go to prison, Perrone said. There needs to be an underlying crime first and then if it was motivated by bias the prosecutors look for evidence of hate bias.
“Calling me a name is not necessarily illegal,” he said.
• Tom LaVenture, staff writer, can be reached at 245-0424 or by emailing tlaventure@thegardenisland.com.
