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Flawed FBI reporting system undercounts disability hate crimes
18 December 2002

By Kathleen Maclay

Berkeley - Although disabled people comprise one-fifth of the population in the United States, according to FBI statistics they have "just one chance in a million" of being the target of a hate crime, according to Mark Sherry, a University of California, Berkeley, researcher.

The author of a new report, "Don't Ask, Tell or Respond: Silent Acceptance of Disability Hate Crimes," Sherry says those numbers are ludicrously low and calls hate crimes against disabled people "cellophane crimes."

Mark Sherry
Mark Sherry

"People walk right through them, look right through them, and never know they are there," said Sherry, the Ed Roberts Post-Doctoral Fellow in UC Berkeley's fledgling Disabilities Studies program. Ed Roberts was the first student with significant disabilities to enroll at UC Berkeley and he pioneered the university's disabled students program. He helped establish the Center for Independent Living, was president of the World Institute on Disability, and served as director of California's Department of Rehabilitation.

Under the Hate Crime Statistics Act of 1990, the FBI has been required since 1997 to collect data on disability hate crimes. The bureau reports that, of 44,265 hate crimes recorded from 1997-2001, some 133 - less than one-half of one percent - were against the disabled.

FBI data "suggests that less than one in a million disabled people can expect to be the victim of a disability hate crime in any year," Sherry writes in his report.

Yet even the most notorious disability bias crime in U.S. history - the 1999 kidnap and torture of cognitively disabled Eric Krochmaluk of Middletown, N.J. - was not reported in the FBI data, he said. The incident was the first disability hate crime to go to trial in the U.S.

"It's no surprise that hate crimes are underreported, but the disparity between reporting disability hate crimes and other crimes is staggering," said Jack Glaser, assistant professor at UC Berkeley's Goldman School of Public Policy. "According to Mark's analysis, disability hate crimes are not just underreported, they are virtually unreported. The number of media stories outnumber the statistics."

Glaser, whose research specialties include hate crimes and stereotyping, said one clear reason for this underreporting "is the likely perception, by law enforcement agents, policy makers, and perhaps victims, as well, that people with disabilities are attacked not because of hate so much as vulnerability."

"This is why Mark's distinction between hate crimes and bias crimes is important, although I suspect many analysts would be uncomfortable with giving up the prejudice (hate) component of the definition of hate crimes," said Glaser.

Sherry notes in his report that the FBI defines physical and mental disability bias as a "preformed negative opinion or attitude toward a group of persons based on physical or mental impediments or challenges, whether such disabilities are congenital or acquired by heredity, accident, injury, advanced age or illness."

Hate crimes attack the rights and freedoms of individuals while underscoring a lack of safety for many people in minority communities. The intention is to hurt and intimidate because of race, ethnicity, sexual orientation, religion, national origin or disability, according to the U.S. Department of Justice.

Ultimately, Sherry said, bias crimes and hate crimes are the same.

Fewer than 2,000 of 17,000 eligible law enforcement agencies have filed a report on any type of hate crime at all, he said, despite research that reflects a high rate of crime against the disabled and a high level of disability discrimination. For example, he said, a study of deaf youth found 54 percent of deaf boys and 50 percent of deaf girls are sexually abused.

Sherry said disability hate crimes are underreported due to systemic problems that include a lack of awareness, understanding and training on the part of law enforcement personnel. The voluntary nature of the reporting and the varying time limits for reporting further cloud the issue, he said.

Sherry also found that police and prosecutors often abandon the hate crime element in a case and instead call it vandalism, assault or theft. He said police may doubt they can prove the offender discriminated in the selection of his or her disabled victim. So, instead, officers file charges for an accompanying crime such as assault.

Also, Sherry said, a crime victim's disability may not be considered as significant by police as other descriptors. For example, few news reports of the slaying of a young black man in Texas by dragging him behind a pickup truck mentioned that James Byrd also was disabled, Sherry said.

Some disability hate crimes aren't reported by victims because of the victims' physical need for a third party to relay the information to authorities. Others aren't reported because the perpetrator is a caregiver upon whom the victim depends. Sometimes police never learn about the crimes because victims consciously or unconsciously ignore the evidence of a hate crime, Sherry said.

Among disabled people, he said, hate crimes are often mislabeled "abuse" and dealt with through counseling as opposed to criminal prosecution.

Yet, whatever the numbers, these crimes are quite serious and tend to be particularly violent, said Sherry.

Forty-three percent of the recorded crimes against the disabled from 1997-2001 involved simple assault. Intimidation accounted for 41 percent, aggravated assault for 10 percent, rape for 2 percent and other forms for 4 percent.

Sherry said hate crime victims are three times more likely to require hospitalization than the victim of a non-bias crime.

In his research, he reports that all but five states have hate crime laws, but only 23 (including California) provide penalties for disability hate crimes. Federal hate crime statutes do not include crimes against the disabled, Sherry said, and a proposal to expand the federal definition to include the disabled stalled in the U.S. Senate earlier this year.

Even in Boston, a city considered a national model for hate crime investigations, Sherry cited a study there of 452 hate crimes from 1983-1987. He found that 85 percent of the offenders were not arrested, and charges were dismissed against a third of those who did get arrested. In total, five assailants eventually went to jail, said Sherry.

A former labor historian, Sherry became aware of the frequency and nature of disability bias after he was disabled after being run over by a car in 1992 in Brisbane, Australia. He has spent the last decade recovering from extensive injuries and undergoing numerous surgeries.

"That gave me a chance to reflect on the way disability is understood in our society," he said. While a disabled person generally is viewed as someone who has undergone a personal tragedy, Sherry said he discovered that the disabled are "people struggling for better lives and often facing some pretty significant barriers like abuse, discriminatory attitudes and inaccessible resources."

Sherry earned his Ph.D. in disability studies at Australia's University of Queensland in 2002. He is turning his dissertation on brain injury into a book. On Jan. 22, he will be giving another report, about disability and sex, at UC Berkeley's Center for the Study of Sexual Culture In spring 2003, he will teach a course at UC Berkeley on disability, identity and social movements.

"The disability movement has been called the last civil rights movement, and that's a good way to understand why the disabled have been left out of so many definitions and protections," Sherry said. "We're just experiencing the first wave of the disabled rights movement now."

While the movement initially focused on issues in the "outside" world, such as access to education and removing physical barriers in public places, Sherry said, it now is looking at more private issues such as health, abuse and hate crimes.

He is sharing his report with hundreds of Centers for Independent Living across the country.