Uniform Hate Crime Statistics Are Not So Uniform
By Jim Burroway
Updated version, March 29, 2005
"Gay-slaying verdict: guilty."
This was the top story on the Jan. 28 front page of the Arizona
Daily Star. It was good to see another blow for justice, and it
makes me proud to live in a community that takes these things seriously.
Anti-gay activists are eager to point to the FBI’s annual
Hate Crime Statistics as evidence that gays and lesbians are not particularly "oppressed"
compared to anybody else. But as is always the case in such contentions, there
is more to the story than meets the eye.
Federal law requires that the FBI solicit quarterly hate
crime statistics from local law enforcement agencies, which the FBI compiles and
releases in annual reports. The categories for which the FBI is responsible for
tracking include race, religion, sexual orientation, ethnicity and disability.
Congress requires the FBI to track sexual orientation even though there are no
provisions in federal law for prosecuting hate crimes based on sexual
orientation. So at least on a federal level, this exercise is purely
informational as far as sexual orientation is concerned.
The most recent report for 2003 was released last November (PDF: 14MB/166 pages). The breakdown
of hate crime incidents by category for all states looks like this:
Keep in mind that each incident may include more than one
crime. For example, an attack against two victims constitutes two crimes but
may be counted as one incident. A rape and assault against one victim would
count as two crimes against one victim, yet is counted as only one incident.
There were a total of 8,715 individual hate crimes reported for 2003.
In this ranking, sexual orientation was the third largest
category for reported hate crime incidents. But on closer look, it quickly becomes
apparent that this report doesn’t tell the full story.
When Congress directed the FBI to collect hate crime
statistics in 1990, they neglected to make it compulsory for local law
enforcement agencies to report hate crimes to the FBI. This means that local
participation in the data collection and reporting is completely voluntary and uncompensated.
Consequently, a number of jurisdictions did not file reports for all four
quarters and data from Hawaii missing altogether. Furthermore, only 16.5% of those
law enforcement agencies which did participate reported any hate crime activity.
To add further confusion to the mix, state laws are not consistent
in hate crime categories and definitions. According to the Anti-Defamation
League, only thirty states provide any sort of penalty (civil
or criminal) for crimes based on sexual orientation. Furthermore, only fourteen
states require the collection of hate crime statistics for sexual orientation.
Interestingly, Maryland and Michigan require jurisdictions to collect hate
crime statistics based on sexual orientation despite the fact that their state
laws do not provide for penalties based on sexual orientation — a
situation which mirrors federal law.
So it’s fair to ask: does the absence of a requirement or
penalty at the state level influence participating law enforcement agencies’
reports to the FBI at the federal level? After all, if there are no additional civil
or criminal penalties attached to a crime based on sexual orientation, where is
the impetus to perform the extra detective work needed to determine whether a crime
was a hate crime solely for the sake of compiling statistics for the FBI? And
if state law does not require tracking of hate crimes based on sexual
orientation, how much care is taken in keeping records for a voluntary federal
When I examined the FBI’s 2003 statistics and excluded those
states which 1) do not have any penalties for hate crimes based on sexual
orientation and 2) do not require reporting statistics based on
sexual orientation at the state level, the data for the twelve remaining states
 look very different from the national aggregate.
Compare this to the nineteen states  which neither 1) provide
penalties for crimes based on sexual orientation nor 2) require their reporting
at the state level:
Note the wide divergence of the sexual orientation category data
from the national aggregate. It is clear that state requirements have a
dramatic affect in reporting hate crimes based on sexual orientation at the
federal level. States which criminalize bias crimes based on sexual orientation
and require reporting of the data at the state level are much more likely to
report a hate crime at the federal level. Where states don’t have such laws in
place, many agencies may simply overlook evidence that a crime is a hate crime
when there is no prosecutorial imperative to prove it as such.
There are many other reasons to cast a suspicious eye on the
national Hate Crime Statistics. The Hate Crime Data Collection Guidelines (PDF: 71KB/27 Pages)
states on page 10 that the 1930s-era Summary Reporting System (the system used
by most states use to report overall crime statistics to the FBI) only requires
reporting of property crime (vandalism, arson, etc) after an arrest is made. The
guidelines caution jurisdictions that for reporting hate crimes, they are to go
ahead and report it regardless of whether an arrest is made. It is impossible
to know how many law enforcement agencies are careful enough to note this
difference in reporting requirements between ordinary crimes and hate crimes.
This may not only impact reports of crimes based on sexual orientation, but
religion as well. Many synagogues and mosques, like gay and lesbian
organizations and businesses, suffer graffiti, broken windows and other
property damage for which no arrest is ever made.
Finally, many communities are loathe to be associated with
hate crimes. There is tremendous economic, social, and political pressure to
avoid the stigma, especially in areas where such reporting can be particularly
sensitive due to historical circumstances. Alabama and Mississippi only
reported a single hate crime incident each for all of 2003. Meanwhile North
Dakota, the least populous state with the nation’s lowest crime rate — a
quarter of Alabama’s and Mississippi’s overall crime rate — managed to come up
with 18 incidents. This is despite the fact that North Dakota, like Alabama and
Mississippi, has no hate crime laws on the books for sexual orientation.
It often only takes a missing wallet for police to classify
a crime as an ordinary robbery and assault rather than a gay bashing,
regardless of the threats and epithets used during the crime.
Conservatives accuse GLBT anti-violence activists of
inflating their numbers whenever they report hate crime statistics higher than
the FBI’s. But given the deficiencies of the FBI’s own data, it is clear that
the true story behind the official statistics is worse than we know. How much
worse, no one can say.
1. According to the Anti-Defamation League,
states which provide penalties and require reporting based on
sexual orientation as of 2003) are: Arizona, California, Connecticut, District
of Columbia, Florida, Illinois, Iowa, Minnesota, Nevada, Oregon, Texas,
2. According to the Anti-Defamation League,
states which do not provide for penalties and do not require
reporting based on sexual orientation as of 2003) are: Alabama, Alaska,
Arkansas, Colorado, Georgia, Idaho, Indiana, Mississippi, Montana, North
Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah,
Virginia, West Virginia, Wyoming.
— Jim Burroway