This article has been authored by Rishika Saraswat, a first year student at WBNUJS, Kolkata
The United States recently faced uproar among the public, peculiarly from the Asian-American community, over the mass shooting of six women of Asian descent and two others on the 16th of March in Atlanta, Georgia. This has not been the only race-specific public outrage in the US, as the Black community was in a similar position when George Floyd was killed back in May 2020. The accused in the Atlanta killings, Robert Aaron Long, was caught soon after the police identified him. The public demonstrations and widespread demand for justice has erupted because the killings prima facie reflect racially motivated aggression. The legal question posed by such a racial angle is, whether this act would classify as a “hate crime” under the laws of the United States.
This article attempts to analyze, the facts of the case, existing hate crime laws in the United States with specific reference to the state of Georgia, and further discuss the laws under which such crimes are penalized in India.
Upon the arrest of Robert Aaron Long, the police has inquired and reported some key findings to the public. The most crucial of these findings has been that the accused has admitted to the shootings, but has denied the accusations of his actions being racially motivated. Several authorities, including the Federal Bureau of Investigation working on this case, have stated that a racial angle seems unclear and further investigation into the criminal intent would be required to make a concrete claim.
The crime against the Asian Americans seems to be at a high with advocates linking this incident with the anti-Asian sentiments on the rise in America. This rise was seen after Donald Trump had associated the Coronavirus with China and also called it the “Chinese Virus”. Though this link cannot be concretely established but is only loosely drawn for the time being, since the investigations are still underway.
Law Governing Hate Crimes in the USA
A crime motivated by bias against the victim’s race, colour, religion, or national origin involves classification of the offence as a “hate crime”. There are two charges that the offender could face namely, a Federal hate crime charge or a State hate crime charge. A Federal charge would fall under the Hate Crimes Prevention Act of 2009. Such a charge would be pushed when the victims were engaged in a federally protected activity. This includes rights that are protected by the Civil Rights Statute, like enrolling in a public institution, using state transport, enjoying state benefit through a service, program, or facility etc.
A state charge is specific to a particular state in the US and is not uniform. Three states, namely Arkansas, South Carolina and, Wyoming do not have any statutes to this regard.
The killings took place in the state of Georgia. A legislation penalising hate crimes was passed in Georgia in June 2020. This case would most likely involve a state hate crime charge through the state legislation since the victims were at a public spa-parlour and not engaged in a federally protected activity.
The Georgia law on hate crimes, sentences the offender to a minimum of two years in prison if the offence is found to be motivated by race, colour, origin, gender or sexual orientation. As in the present case, the offence underlying is murder; therefore, even if Robert Long is found guilty under the state hate crime law, it will have no effect on his sentence. The maximum sentence for such murder in Georgia would range from life sentence to death sentence.
Conviction under Hate Crime Law
The question raised is whether it is still important to convict the accused under the hate crime legislation even if it does not affect the sentence. The answer would be yes. The rationale behind it is to set an important precedent in favour of the minority communities residing in America. On such correct classification, the conviction would clarify that America stands against hate crimes and supports the Asian-American community. It is also important for the hate crime legislation passed by Georgia to prove its effectiveness in real action rather than being effective merely on paper.
Governance of Hate Crime in India
India does not have a common legislation in place which governs hate crime as a whole. However, there do exist two categories of crimes that are classified under this head. The first of the two is the crime of hate speech The Indian Penal Code under Sections 153A, 153B, 295A, 298, 505(1) and 505(2) state that, any word, spoken or written, that promotes disharmony, hatred, or insults on basis of religion, ethnicity, culture, language, region, caste, community, race etc., is punishable under law. The most commonly reported hate speech cases are on the grounds of religion, caste, class, and gender.
The second type of crime that covers a strata of hate crimes is Mob Violence and Lynching. In recent years, India has seen a rise in volatile mobs committing crimes like assault, aggravated assault, gang-rape, and even homicide. There exists no legislation with the label of Mob Violence but finds description within Section 223(a) of the Criminal Procedure Code of 1973. This section allows for a person to be charged for committing an attack on another together with a group of people. The Supreme Court has given a definition of Lynching in the case of Tehseen S. Poonawala v. Union of India. It stated that such offence is committed with intentions of communal hate which is a cause for hate crimes. It was essential for the court to give this decision as the judgment aimed to prevent orchestrated lynching and vigilantism from becoming the order of the day.
These two categories of crime are the only ones that find mention under crimes that are motivated by factors like race, religion, caste and, gender in India. Though, there is no special law governing all heads of crime as plausibly arising out of “hate,” India is in need of such legislation. Inhabiting one of the largest populations in the world with massive diversity, discriminatory crime is on the rise. India must assure a safe environment for the minorities as well as the vulnerable classes by enacting relevant provisions in the Penal Code which encompass a wider range of crimes with definite motive.
The Atlanta shootings await complete investigation and the Asian-American community deserves to be answered. Georgia’s hate crime legislation must be enforced irrespective of the effect it has on the convict’s sentence in practicality. This is because the community is outraged and the verdict would act as a pacifier. Along with this, it would set a stronger precedent in the United States establishing that the law has no tolerance towards hate crime.
India, in the domestic lens, must, in light of this event, aim to widen its own laws on hate crime to incorporate a wider array of crimes under the law to have a clearer statistic on the safety of the weaker strata. This is a wake-up call for countries across the globe to address hate crime and have penalties that reprimand and prevent such instances from occurring.