Hate crime laws make it illegal to use or threaten to use force against a person or property for reasons of bias, based on race, religion, ethnicity, gender, or sexual-orientation. For communities experiencing institutionalized discrimination, ranging from the rhetorical to the violent, hate crime laws can be a safe harbor in an unrelenting storm. Where politicians and media personalities scapegoat and cast aspersions, government prosecution of hate crime laws can provide these besieged groups with a rare sense of security, belonging, and hope.

When it comes to Islamophobia, however, these prosecutions have failed to materialize. And just when they are most needed. This result, while disheartening, is far from unusual. Conceptually, hate crime laws promise much, but, in practice, deliver little – not just for American Muslims, but for many groups, in the throes of discrimination. The murder of Nabra Hassanen, a seventeen-year-old Muslim girl, during a period of extreme Islamophobia in the United States, is the most recent reminder of this sad reality. It won’t be the last.

But, little-t0-enforcement of hate crime laws is not inevitable – instead, it is the result of a U.S. justice system that generally takes a narrow-minded and rigid approach to hate crime laws, combined with popular assumptions about American exceptionalism.

Murdering Muslims

Nabra was killed on June 18, in Fairfax, Virginia, while walking back from a restaurant after evening prayers at her local mosque. She had just eaten suhoor, the pre-dawn meal that would help sustain her during the nearly fifteen-hour fast she would undertake that day for the holy month of Ramadan. She was with a group of teenagers, who were also Muslim. As they were making their way back from the restaurant, these young people were approached by a car, driven by twenty-two-year-old Darwin Martinez Torres.

Publicly availably details about what happened next are vague, but, it appears Martinez Torres got into an argument with a member of Nabra’s group. The subject of the dispute is unclear, but the teenagers bolted. According to reports, Martinez Torres pursued them. Nabra had the unfortunate luck of tumbling, as she ran. Martinez Torres caught up with her, beat her with a metal baseball bat, shoved her into his car, and drove away, eventually dumping her body in a nearby pond. According to authorities, Nabra died from trauma to her upper body.

According to her father, Nabra was dressed in an abaya – a long dress-like covering worn by some Muslim women – as well as a headscarf, at the time of the fatal encounter. In other words, she was visibly Muslim – as were other members of her group.

Only a few hours after Nabra’s murder, Fairfax County Police began insisting her death was the byproduct of road rage, not anti-Muslim hate. The announcement angered many, including Nabra’s parents, who believed their daughter was brutally murdered for one reason – her very visible Muslim identity. Those who study road rage were also skeptical of the police’s conclusion. Speaking to NPR about the circumstance of Nabra’s murder, Mary Vriniotis, a researcher at the Harvard Injury Control Research Center in Boston, said, “I don’t think most folks who study either auto fatalities or homicides would describe that as a road rage incident.”

Days after her death, a memorial in Nabra’s honor in Washington’s Du Pont Circle was set on fire. Again, the police were quick to deny anti-Muslim hate was involved, and claimed the culprit, twenty-four-year-old, Jonathan Solomon, had torched other parts of the park as well.

This is not the first time local and federal officials have refused to classify the high-profile murder of an American Muslim as a hate crime. On February 10, 2015, three young American Muslims were murdered in Chapel Hill, North Carolina. Razan Muhammad Abu-Salha, a nineteen-year-old sophomore at North Carolina State University, her twenty-one-year-old sister, Yusor, and Yusor’s twenty-three-year-old husband, Deah Barakat were killed in Yusor and Deah’s home by Craig Stephen Hicks, their forty-six-year-old neighbor.

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An image memorializing the death of Nabra Hassanen

News of the murders spread quickly. From the start, many members of the American Muslim community, including the friends and families of the victims, were adamant that Deah, Yusor, and Razan had been killed because of their faith. Mr. Hicks’s wife disputed this. The day after the murders, Mrs. Hicks held a press conference where she claimed her husband had been triggered by a long-standing parking dispute with his victims.

Mrs. Hicks’s unusual press conferences appears to have been motivated by self-interest. As reported by the New Yorker, immediately after the shooting, Mrs. Hicks’s lawyer, Robert Maitland, told her: “You have about a two-hour window here. There’s nothing we can do about the fact that you’re the ex-wife of a murderer. You’ll be that all your life. But we can make the point that you aren’t the ex-wife of a terrorist.” Even Maitland eventually described his client’s claims as “speculation” and “an effort to prevent panic.” “Here’s the thing: Nobody knows,” he said, according to The New York Times. “Why did he lose it that particular day?”

Country to Mrs. Hicks’s narrative, evidence from lawyers, the police, and the victims’ friends and family all point away from the parking dispute and toward religious animus, as Hicks’s motive.

For example, while Deah had been his neighbor since 2013, Mr. Hicks’s harassment escalated only after Yusor began visiting Deah, following the couple’s engagement. Like her sister Razan, Yusor wore the traditional headscarf. Unlike her husband-to-be, she was visibly Muslim.

Hicks escalated his harassment of the couple, after their marriage in December 2014. Deah and Yusor’s friends became worried Hicks was obsessed with the couple and believed his behavior was motivated by Yusor’s appearance. “If you look at Deah, he looks like your average white guy,” Nida Allam, a close friend, told The New York Times. “But Yusor wears the head scarf. And so does Razan.” In an article in TIME magazine, the fathers of the three murdered youths reported that, after Yusor moved in, “Hicks repeatedly told her he did not like how she looked because of her headscarf.”

There is ample evidence Hicks was anti-religion. A committed atheist, his Facebook page was littered with  derogatory comments about various faiths. According to the New Republic, Hicks publicly condemned “radical” Christianity and Islam for “their alleged ideological similarity.” As The New York Times elaborated:

There is no question Mr. Hicks had a problem with religion. His Facebook page was full of quotations and memes denigrating Christianity. On Jan. 27, he shared a graphic that may have made reference to Islam: ‘People say there is nothing that can solve the Middle East problem … I say there is something. Atheism.’

As the New Yorker observed, while Hicks “didn’t single out Islam—‘I hate Islam just as much as Christianity, but they have the right to worship in this country just as much as any others do,’ he wrote in 2012—[] he expressed the wish that Jews, Christians, and Muslims might ‘exterminate’ each other.”

Despite all this, it took the police little time to reject the hate crime theory. In a statement issued less than twenty-four hours after the murder, the local police department said its “preliminary investigation indicates that the crime was motivated by an ongoing neighbor dispute over parking.” The FBI and U.S. Department of Justice opened a hate crimes investigation into the murders, but no charges were ever brought.

Since the murders, the Abu-Salha and Barakat families have dedicated themselves to countering the official narrative of their loved ones’ deaths. On the day of the murders, Deah’s sister, Suzanne, called on authorities to “investigate these senseless and heinous murders as a hate crime,” according to the Los Angeles Times. On the anniversary of the murders, in February 2016, the fathers of the slain students penned an article in TIME magazine, criticizing investigators for failing to treat their children’s murder as motivated by hate, and urging them to right the wrong.

Taking a Narrow Approach to Hate Crimes

While the circumstances were different, the reaction to both the Chapel Hill and Fairfax murders were nearly identical – a family and community on one side, crying out for a hate crimes investigation, and authorities, on the other side, insisting anti-Muslim hatred was not involved.

So, what accounts for these consistently different reactions?

Let’s start with the community and family response. Since 9/11, American Muslims have been the object of repressive government policies, intense law enforcement scrutiny, negative media coverage, and rampant stereotypes. Unsurprisingly, as a result, Islamophobia has surged in the United States. Since September 11th, hate crimes motivated by anti-Muslim bias have increased five-fold in the United States. In 2015, hate crimes against American Muslims increased by 67%. According to Human Rights Watch, during that same period, “hate crimes against almost all other groups declined or increased much less.”

It is little wonder, then, that the Muslim community and its allies see violence against those appearing to be Muslim as likely motivated by rampant bias.

As for the American justice system, not bringing hate crimes charges in instances of probable Islamophobia is consistent with a general refusal to prosecute hate crimes. As the standard argument goes, these types of crime are notoriously hard to prove and often have little practical effect on penalizing perpetrators. While there may be truth to this, there is also a broader failure to understand how the interpretation of these crimes is far from given, how their impact reaches beyond punishment, and how targeted communities are affected, when these crimes are consistently ignored by local and federal officials.

Hate crimes are known as “crimes of motive.” In addition to demonstrating that a defendant acted with the requisite intent, successfully prosecuting hate crimes means showing the accused was motivated by bias. As typically understood, this requires more detailed findings about mental state and a deeper inspection of motivation, than most other crimes.

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An image memorializing the deaths of Deah Barakat, Yusor Abu-Salha, and Razan Abu-Salha.

As a result, when hate crimes charges are actually brought, there is usually very clear evidence of prejudice, like membership in a group promoting prejudice or explicit statements by the accused about violence based on race, religion, gender, or another protected category. Where no such evidence exists (and it often does not), investigators and prosecutors believe they must delve into the mental state of the accused – and, often times, they decline the invitation.

But, this approach is not an inevitable one. Any crime that requires proof of intent (a category that includes all serious crimes) means that success depends, in a sense, on “reading” a defendant’s mind. Instead of grinding the justice system to a halt, this requirement is one courts have learned to accommodate. Together with legislatures, they have developed ways to approximate “mind-reading,” including considering not just direct, but also circumstantial, evidence and, from some crimes, taking a flexible approach to what intent means. Usually (though not always) tempered by a need to prove guilt beyond a reasonable doubt, this flexibility is, at times, the result of concern criminal convictions may be substantially less possible, if intent is rigidly handled.

When it comes to hate crime laws, however, rigidity seems to be the rule, not the exception. The results of this approach are sobering. According to data compiled by Syracuse University, between January 2010 and August 2015, federal prosecutors pressed forward with only 13% of hate crimes referred to them, with only 11% of those cases ending in a conviction. The statistics at the state-level are even worse – according to a 2013 study, only 4% of reported hate crimes even result in an arrest.

For Muslims, there may be added hurdles. As Farhana Khera, president of Muslim Advocates, observed in the Washington Post:

[T]here are dynamics that may make it more difficult for Muslim victims to win [hate crimes] convictions. In surveys conducted in 2006 and 2007, Georgetown University researchers found that Muslims, whether or not they are American, face severe stereotypes in the United States. Americans stereotype Muslims as far more untrustworthy and violent than whites, blacks, Hispanics and Asians. This can create barriers to gaining empathy from police, attorneys, judges and juries.

There are other aggravating factors, as well. Some states do not permit sentence enhancements in felony cases, meaning prosecutors often do not bother to bring hate crimes charges. But, the purpose of hate crime laws is not just to punish the bad behavior of individuals. These laws also send an important message to society about acting on prejudice toward a protected class of people. When prosecutors fail to bring these charges, because there is a penalty cap for the underlying crime, they fail to grasp the potent impact of officially condemning these kinds of bias toward marginalized groups.

There is, however, another reason hate crimes charges are so infrequently brought and hard to prove – one based on a brand of American exceptionalism. While hate crime laws clearly acknowledge the existence of hatred toward particular groups, they are grounded in a belief that discrimination and prejudice are inherently “un-American.” A recent U.S. Senate bill on hate crimes captured this sentiment, “reject[ing] hate-motivated crime as an attack on the fabric of the society of the United States and the ideals of pluralism and respect.”

Ironically, it is this same belief that may make it hard to prove a crime was driven by hate. The assumption that bias is “un-American” creates a high bar to showing that a member of American society was motivated by such sentiment.

This assumption both contradicts reality and further marginalizes American Muslims. With report after report showing increases in Islamophobic hate crimes, there is an understandable expectation, as already mentioned, that these crimes will be prosecuted. When they are not, it doubly traumatizes American Muslims.

First, it essentially tells them that, while they may be under siege, society will do little to acknowledge or address their pain. Second, it manipulates the American Muslim community’s belief in its own worth. Many American Muslims believe in the very same American exceptionalism, which refuses to name their pain. Yusor, herself, expressed faith in America’s moral uniqueness in a Story Corp interview recorded nine months before her murder:

Growing up in America has been such a blessing. Although in some ways I do stand out, such as the hijab I wear on my head, the head covering, there are still so many ways that I feel so embedded in the fabric that is, you know, our culture. And that’s the beautiful thing here, is that it doesn’t matter where you come from. There’s so many different people from so many different places, of different backgrounds and religions—but here we’re all one, one culture. And it’s beautiful to see people of, you know, different areas interacting and being family, being one community.

To believe you live in a big melting pot, where everyone of all stripes and colors is accepted for who they are, without prejudice, and then to be insulted, abused, and violently assaulted because of your identity is to inevitably see yourself as the problem. In all likelihood, it is this sentiment that explains relentless efforts by American Muslims to prove they are “just as American” as their neighbors. Or to claim, in the words of Yusor and Razan’s brother Yousef, as published in the New Yorker, that “the best true representation of Islam nowadays is the Moderate Practicing Muslim living in the West.”

Hate Crimes Investigations Must Be Conducted More Carefully

To prevent and address this trauma, the spotlight should be turned elsewhere.

Even if Craig Hicks had a diabolical obsession with parking, and harassed a number of other neighbors, why did he single out the only visible Muslims living in his neighborhood for violence? Indeed, there was no clear reason for why Hicks’s parking-obsessed anger should be triggered that day – Deah’s car was parked in his designated spot and the two sisters’ cars were not even in the lot. But, Hicks was still filled with rage. According to autopsy reports, upon entering the apartment, he sprayed Deah with bullets, before shooting Yusor and Razan in the back of the head, at close range. He then shooting Deah again, before leaving.

Why such anger, against these particular people, on that particular day?

Similarly, how does road rage account for Darwin Martinez Torres’s decision to pursue a group of Muslim teenagers, beat one with a bat, abduct her, and then assault her again, before dumping her body?

Answering and investigating these complex and important questions takes time and careful consideration – it certainly cannot be done in a few hours, as local law enforcement did in each of these cases.

In an atmosphere rife with Islamophobia, the high-profile murders of young American Muslims cannot escape its stain. This does not mean all crimes against Muslims must be treated as presumptively hate-driven. It does mean, however, that refusing so quickly, and with such regularity, to investigate these incidents as hate crimes sends a message that violent animus against Muslims is either imagined or unimportant. More broadly, it suggests law enforcement, prosecutors, and courts alike are uninterested in genuinely recognizing hate-motivated crime, as beyond the pale.

To donate to a fundraiser for Nabra Hassanen’s family click here. To support the Our Three Winners organization, created in honor of Deah, Yusor, and Razan, click here.

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