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Florida's Hate Crime Law Protects Some, But Still Has Gaps

Associated Press
A man wearing a Stronger Than Hate yarmulke stands outside the Tree of Life synagogue in Pittsburgh, the site of a shooting that killed 11 worshippers in 2018.

The FBI’s most recent data, for 2018, shows the number of hate crimes logged by the FBI in Florida holding fairly steady – 141 total hate crimes, down from 145. But it follows a 50 percent increase of hate crimes in the state from 2016 to 2017.

Related: FBI Reports Dip In Hate Crimes, But Rise In Violence

Hate crimes aren’t always easy to prosecute — and some categories don’t fall under the hate crime umbrella at all in Florida.

Florida’s hate crime law covers:

  • Race
  • Religion
  • National origin
  • Mental disability
  • Sexual orientation
  • Advanced age

It does not cover physical disability, gender or gender identity (though all are part of the federal hate crimes law).

Additionally, advocates who work on hate crime legislation see two other gaps in Florida’s law — mixed-motive hate crimes and association with hate crimes.

Related: Hate Crimes Rare In Florida. But Only Because Many Police Fail To Report Them Accurately

Mixed-motive hate crimes are criminal acts that begin as, or include, non-hate-crime motives. David Barkey, who works on hate crime legislation at the Anti-Defamation League’s South Florida office, gave the example of a fender-bender.

“Let’s say one person gets out, the other person gets out, and the perpetrator is yelling about the accident,” he said. “And let's say the driver is Hispanic, and the perpetrator is also yelling all kinds of anti-Hispanic epithets and then proceeds to commit an assault.”

Under Florida’s current law, he says, it would be difficult to prosecute that assault as a hate crime, because although the perpetrator was clearly expressing hate under a covered class — national origin —  the motives were mixed, as it started as anger about a car accident.

Association with hate crimes are criminal acts against someone who is not in a protected class, but is attacked as a result of someone’s hate against a group that is protected. Barkey’s hypothetical in this case is a group of friends out at a bar, with the majority of the group being gay

“Let’s say there’s some other patrons at the bar that start yelling all kinds of anti-gay epithets, and then the straight individual stands up and says ‘Hey, I’m straight, leave my friends alone,’” he said. “If they proceed to either assault or attempt murder on that person, that would likely not be covered as a hate crime under Florida law.”

A bill Barkey helped craft for the 2020 legislative session was filed last week to help fill the gaps he identifies in Florida’s hate crime legislation.

WLRN’s Madeline Fox sat down with Barkey to discuss Florida’s hate crime landscape.

This conversation has been edited for clarity.

WLRN: Could you compare Florida law to other states? How do we rank in terms of how well people are protected under our hate crime laws?

David Barkey: Florida has a pretty good law, but there are some really important deficits that need to be fixed – because in the 21st century, the state of Florida needs to be saying that it's unacceptable for somebody to be targeted for who they are — whether it's is their race, religion, gender identity, gender or physical disability.

You’ve said that sexual orientation is covered under the Florida hate crime law, but that is not true necessarily in all states with hate crime legislation. Florida, especially South Florida has a rather long history of a strong LGBTQ community. Do you think that that’s led to that protection under the law that some states don’t have yet?

Look, LGBTQ politics is a challenge in many legislatures. That amendment was put in in 1994 — the politics in our state, particularly in Tallahassee, were different. Obviously the fact that you have a large and active LGBTQ community in South Florida, I think that’s very important. The bottom line is, in certain states, LGBT politics is a challenge.

The fact that gender identity isn’t in the Florida law is not something unique to Florida, we see it in other states, and we have five states that don’t have hate crime laws. There are a lot of reasons why politicians oppose hate crime laws, and one of the reasons I suspect is the politics of putting in the categories of sexual orientation and gender identity. 

So in this jump that we’ve seen year over year in recent data that we have, do you attribute that to more attention and maybe more crimes being reported, or do you think there is actually an increase in hate crimes in Florida?

Well, there's more hate crimes being reported, so that's a statistic, right? I think the question you're asking is why, why are we seeing this jump now.

I think over the last decade, we've seen a just general incivility in the public and normalization of certain views. Obviously, there's more normalization of divisive and hateful views that we're seeing in this country. But it didn't start in the present time. After the election of President Obama we saw a spike in hate crimes. We've always had racism in this country. I don't know if we'll ever be able to fully eradicate it, but particularly since the Civil Rights Movement it was shunned to the fringes of society. And what we're seeing now is it's kind of coming out of the fringes. And I think a byproduct of that is that we're seeing more hate crime.

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