Hate crimes in Vermont: Why police, lawyers sometimes disagree if someone crossed the line – By Elizabeth Murray (burlingtonfreepress.com) / Oct 9 2018
When does First Amendment-protected free speech cross the line and become a hate crime? Police and lawyers sometimes disagree, which is evident in criminal cases recently filed in Chittenden County.
Two cases filed in August were both described as hate-motivated crimes in police news releases to the public, but only one was charged as such. In the other case, top prosecutor Sarah George said a neighbor dispute, not racism, was the fuel behind an alleged vandalism in South Burlington despite anti-Muslim slurs being hurled at the time of the incident.
Curtiss Reed, the Executive Director of the Vermont Partnership for Fairness and Diversity, noted that people who show a pattern of disrespectful behavior can easily “cross the line into a hate motivated incident.”
“Unless neighbors and friends and coworkers and churchgoers are calling out the people in their own spheres … it’s very easy to slip into hate motivated crimes,” he said.
What is considered a hate crime in Vermont?
A hate crime is not its own charge, but is added on top of other criminal charges. The hate-crime enhancement’s use can mean heftier penalties for a person if he or she is convicted.
To use the enhancement, there must first be an allegation of a criminal action, such as threatening injury or an assault. Then, according to Vermont law, evidence must show that the aggressor’s action was maliciously motivated by a person’s “actual or perceived”:
- race,
- color,
- religion,
- national origin,
- sex,
- ancestry,
- age,
- service in the U.S. Armed Forces,
- disability,
- sexual orientation,
- or gender identity.
Vermont Law School professor and former prosecutor Robert Sand says proving hate is the motivation for an action tends to be difficult
“There’s a perhaps more difficult overlay that motive means proof of what is going on in a person’s mind, and that always poses challenges,” Sand said.
Where does free speech cross the hate crime line?
Prosecutor George said not all hate-motivated activity happening in the community rises to the level of criminal prosecution. Some of it is protected by the First Amendment right to free speech.
George said she thinks there is a general misconception among members of the public that discriminatory language itself can constitute a hate crime.
“The case law and the statute are pretty clear that that’s not enough,” she said.
Prosecutors have final say on how a case gets charged before it goes to the judge. As a deputy prosecutor, George said that when she disagrees the police’s assessment that a hate crime has occurred, she emails the officer to share her reasoning.
“I always wanted them to know why we didn’t charge it and what we need to show,” George said.
South Burlington Police Chief Shawn Burke, who previously worked at Burlington Police Department, said officers are “keen to latch onto elements of any activity that are biased in nature, and then report those facts as necessary.” He said that in recent years, the Chittenden County State’s Attorney’s Office has shown an “increased amount of tenacity” in trying to prosecute hate crimes and take them seriously.
Even if it doesn’t reach the prosecutorial level, actions that police deem as a hate-motivated crime still get reported to the FBI. This includes the neighbor dispute in South Burlington, which was not ultimately charged with the hate crime enhancement.
What is the impact of labeling something a hate crime?
Sand, who specializes in criminal law at Vermont Law School, said charging or convicting someone of a hate crime has an impact on the public perception of a person — they often become branded as a racist, bigot or homophobic.
“I’m not sure that it’s fair to paint anyone simply by that one label,” Sand added.
In the end, Sand said he does not think heftier sentences through the enhancement help foster rehabilitation or deter people from committing those types of crimes in the first place. However, he said he feels having a hate-crime-related law on the books is a good thing.
“I will say it is a strong pronouncement of our intolerance for hate and it is a strong legislative declaration for our intolerance for hate,” Sand said. “As a societal symbol, I think it has significant value.”
Reed, who has spent decades working on race issues in Vermont, said there is never a completely safe way for bystanders to confront racism and bigotry, but it is necessary to address disparaging remarks or hate-motivated conduct on an individual level to suppress any further similar actions. He said this could be as simple as saying, “What you just said offends me,” or, “What you just said is not part of the core values of our community.”
Those who don’t speak up are being complicit, Reed said.
Is hate on the rise in Vermont?
The FBI, which collects hate crime statistics reported by police, showed that reported hate crimes in Vermont rose from eight to 25 from 2015 to 2016. However, that doesn’t always translate to actual prosecution.
Accurate records for hate crimes charged in Vermont in 2015 and 2016 were not available through the Vermont Judiciary. While their records reflected no charges in 2015, the Free Press reported on at least one case filed in Chittenden County that year which involved a person who was accused of targeting people of color with Ku Klux Klan flyers.
Dawn Sanborn of the Vermont Judiciary, which keeps statistics on convictions reached in the state’s courts, said the hate crime enhancement was used three times in Vermont in 2017.
In general, hate-motivated conduct has risen and continues to rise within the community, Reed said. South Burlington Police Chief Burke said this has translated to a higher number of reported hate crimes — but it could also be that community members have a greater awareness of these types of activities.
“It’s a function of the fact that the national discourse has given people license to do and say whatever they might,” Reed said.
Do you believe you’ve witnessed or been the victim of a hate crime?
If so, contact your local police department. Reed also recommended that victims contact the American Civil Liberties Union in Vermont at 802-223-6304 or the Vermont Human Rights Commission at 802-828-1625.
