As prosecutors in the United States build a case against the Georgia man charged with murdering eight people, including six women of Asian descent, during a shooting rampage earlier this month, they could also charge him with an additional hate crime under a state law passed in 2020.
But legal experts say that making the argument for a hate crime charge might not be as clear cut as convicting him of the killings. In order to make a hate crime charge stick, prosecutors would be required to prove beyond a reasonable doubt that the shooter targeted his victims specifically because of their race, gender, religion, sexual orientation, or other factors.
“With insufficient evidence, it would be difficult for the prosecutors, whether state or federal, to prove that the suspect had intended to murder these women due to a bias motivation,” said Janice Iwama, an assistant professor at the American University in Washington, DC who studies hate crimes and racial profiling.
Although investigators probing the case could find more proof, Iwama said it is currently “unclear whether prosecutors should move forward with a hate crime charge”.
According to prosecutors, 21-year-old Robert Aaron Long shot dead seven women and one man at three massage parlours staffed by Asian Americans on March 16. He has since been formally charged with eight counts of murder in two counties and one additional count of aggravated assault.
In the wake of the shooting, calls to charge Long with a hate crime have grown.
The attack comes at a time when violence against Asian Americans is on the rise and it has led to calls for Long to be charged with a hate crime. A group that tracks assaults against Asian Americans, Stop AAPI Hate, released a report showing nearly 3,800 verbal and physical attacks over the past year.
When authorities captured Long, he did not say that he targeted the victims for their ethnicity, but told investigators that he viewed the businesses as sexual temptations he wished to eliminate in hopes of alleviating what he described to police as sexual addiction.
When asked at a news conference after the attacks if the suspect’s violence was motivated by bias, Atlanta police chief Rodney Bryant said officials “cannot make that determination at this moment”.
Georgia lawmakers passed a hate crime law only recently, in the summer of 2020, after a group of white men chased down and killed 25-year-old Ahmaud Arbery, a Black man who was jogging through a neighbourhood. Before then, Georgia was one of just four American states without a hate crime law. Wyoming, Arkansas and South Carolina still do not have them.
Georgia’s new law allows prosecutors to seek additional penalties for those convicted of crimes if the victims were targeted because of their race, religion, national origin, gender, sexual orientation or disability.
Long’s trial could be its first big test.
Difficult to prove
In other states, where hate crime laws have been on the books for years, securing convictions for them has proven extremely difficult. A ProPublica analysis of hate crime prosecutions in Texas, for instance, found that of 981 reported potential hate crimes, only eight resulted in convictions.
“Here, proving the murder is pretty easy. Proving the extra element to get the hate crime enhancement might be more difficult,” said Scott McCoy, interim deputy legal director at the Southern Poverty Law Center. “That is going to require more investigation.”
If they choose to pursue a hate crime charge against Long, prosecutors would bring them in addition to the underlying charges, said Peter Skandalakis, the executive director of the Prosecuting Attorneys’ Council of Georgia.
“If a jury finds the defendant guilty beyond a reasonable doubt of the underlying offence, a separate jury trial is then conducted as to the hate crime to determine if factors are present that would authorize the trial court to enhance the sentence on the underlying offence,” Skandalakis said.
“When it comes to proving the crime was committed because of bias or prejudice against a certain class of people, it becomes a little more difficult to prove that matter beyond a reasonable doubt. A prosecutor must prove this bias/prejudice beyond a reasonable doubt by showing the defendant’s motive to commit the underlying crime.”
Georgia’s hate crime law calls for a minimum of two years in prison for those convicted on top of a penalty for other charges. Pursuing additional hate crime penalties against Long could be used to send an important statement about targeting people for their race or beliefs, experts said. If convicted of the murders, Long already faces the possibility of a lifelong prison sentence or death penalty under Georgia state law.
“In this situation, a hate crime charge is probably going to serve a largely expressive function,” said Janine Young Kim, a law professor at Chapman University in California. “When there is a hate crime statute available, the choice whether to use it or not sends a message to the community. Given the fact that the defendant targeted only Asian American businesses, and with this crime taking place during a period of sharp rise in anti-Asian incidents, this message is going to be very closely scrutinised.”
Prosecutors, however, may be leery of pursuing the additional charges if they do not feel confident that they will be all but guaranteed a conviction.
Jeannine Bell, professor of law at the University of Indiana who specialises in studying hate crimes, said given the available evidence, Long should “absolutely” be charged, but was sceptical that he would.
“Hate crimes are hard for prosecutors, especially prosecutors who don’t have experience with them. They care intensely about their win-loss records. They probably don’t see the value of charging something as a hate crime if there is always the highest penalty associated with it,” Bell said.
“It’s more work. A loss on a hate crime charge does not look great for you.”