Amid attacks on Asians, hate crimes hard to prove
Within a day of her assault in downtown San Francisco, Xiao Zhen Xie became a visible figure in a seismic national moment: a surge of violence against Asian Americans, punctuated by a shooting rampage near Atlanta.
Xie, 75, fought off her attacker with a wooden paddle, but she suffered two black eyes, deep bruises and intense psychological wounds, according to family members.
Her alleged assailant, 39yearold Steven Jenkins, was arraigned Friday on six felony counts, for beating Xie and an 83yearold Vietnamese man, Ngoc Pham. But in spite of a public outcry, San Francisco District Attorney Chesa Boudin did not find evidence of a hate crime.
Law enforcement authorities are still investigating, and Boudin has not ruled out additional charges, his chief of staff, David Campos, told The Chronicle Friday. Nonetheless, the case points to a gap between public perception and the mechanics of the legal system. Further, it shows how
the specter of racism puts prosecutors in a difficult position.
“Of course these are hate crimes,” activist Jimmy Bounphengsy said Monday, standing in a crowd that spilled from the steps of San Francisco’s Hall of Justice, down onto the sidewalk and into the street. Inside, a defendant in the assault and killing of 84yearold Thai immigrant Vicha Ratanapakdee was facing a pretrial hearing. Boudin had charged the alleged assailant, Antoine Watson, with murder and inflicting injury on an elder, but no hate crimes.
“We have no evidence of what motivated this senseless attack,” said Robyn Burke, a spokesperson for the district attorney.
While Boudin’s staff cited the burden of proof attached to California’s hate crime statute, San Francisco residents urged the district attorney, and other Bay Area prosecutors, to make an important statement. Outside the courthouse Monday, people waved signs with Ratanapakdee’s portrait, or with anguished slogans. “Hate crime! Do time!” one sign read. “Stop killing us,” said another.
The event was among several spurred by an alarming rise of bigotry and violence against Asian Americans, epitomized by the shootings near Atlanta that left eight people dead — including six of Asian descent. In the Bay Area, crime has become more visible in heavily Asian neighborhoods such as Chinatown, San Francisco’s west side communities and the retail district east of Lake Merritt in Oakland.
The heightened focus on these areas owes partly to a string of viral surveillance videos, including one of Watson allegedly pushing Ratanapakdee to the pavement on Fortuna Avenue. Though the images are jarring and tend to stir outrage, they don’t always show legal evidence of hate. And few are prosecuted that way.
“Even the most violent crimes are often difficult to prove as hate crimes, because in addition to proving the violent act, you also have to prove criminal intent of racial animus,” state Assemblyman David Chiu said. Chiu, a San Francisco Democrat, is pressing legislation to establish a hotline for people to report hate crimes and incidents to the California Department of Justice. Ideally, the hotline would provide a more complete picture of how often these incidents occur, without lowering the standard to prosecute them.
In reality, Bay Area district attorneys file a handful of hate crime charges each year. San Francisco filed nine such charges last year, eight of which are still pending, with the last headed for a plea deal, Campos said. Police brought 16 hate crimes cases to Santa Clara County District Attorney Jeff Rosen in 2019, 17 in 2020, and six this year, a sign that the number is trending upward.
A hate crimes committee in the office of Contra Costa District Attorney Diana Becton reviewed 13 incidents as potential hate crimes last year, ultimately charging five misdemeanor hate crime violations, one felony allegation, and two with other felonies instead of hate crimes.
Yet even these statistics don’t account for the number of hate crime allegations that lead to convictions. Judges sometimes reject hate crime charges in a preliminary hearing, and they often get tossed out in a plea deal.
Alameda County District Attorney Nancy O’Malley has declined to file hate crime charges in some of the assaults in Oakland that went viral on social media, in spite of public pressure.
When video surfaced in late January of an assailant pushing a 91yearold man in Oakland Chinatown, two celebrity actors stepped in, offering $25,000 for information leading to an arrest. Days later, police caught a suspect: 28yearold Yahya Muslim.
Bristling, Chief Public Defender Brendon Woods released a statement reminding people that Muslim had not been charged with any hate crimes or demonstrated signs of xenophobia.
“Connecting this case to a rise in racist violence against Asian Americans is not appropriate, and it should not influence the district attorney and the courts as Mr. Muslim’s case makes its way through the system,” Woods said.
Collective anger over anti-Asian violence has inspired several state bills, some of them resurrected after failing to win support in previous years. Chiu’s legislation, and another bill by Assembly Member Jesse Gabriel, DEncino (Los Angeles County), focus on data collection, prevention of crimes and police training, rather than enforcement.
Another bill by Assembly Member Rebecca BauerKahan, a Democrat representing the TriValley, would enable a district attorney to charge terrorist threats against a protected group as felonies, and in turn seek higher bail or longer jail time before trial. Becton, a progressive, has backed the bill, but it may hit political opposition in a state veering away from toughoncrime approaches.
However, public sentiment is changing, said Rosen, the district attorney for Santa Clara County.
“I believe there is broad public support for hate crime prosecutions if a substantial factor was bias,” Rosen said. “And that hasn’t always been the case,” he added, noting that in the past, critics of California’s hate crime statute questioned whether people should be punished for their motivations, as well as their actions.
Today, he said, many people have a different belief — that crimes fueled by racial bias don’t just harm individual victims; they harm society.