The head of the state's Civil Rights Unit explains, while experts delve into the limitations of the law.
By Meg McIntyre, Granite State News Collaborative

Amid nationwide protests against police brutality and a rise in violence against Asian Americans during the pandemic, lawmakers in some states are turning their attention to hate crimes laws.

From state to state, the way hate crimes are defined and prosecuted varies greatly, with some states treating these crimes as a specific offense and others codifying enhanced punishment options for them. Some states, including Arkansas, South Carolina and Wyoming, have no laws  at all regarding hate crimes.

In New Hampshire, the Civil Rights Act enshrines Granite Staters' right to be free from "actual or threatened physical force or violence" and "actual or threatened damage to or trespass on property" that is motivated by race, color, religion, national origin, ancestry, sexual orientation, sex, gender identity or disability. The statute has been in effect since 2000, and in 2017, the N.H. Attorney General's Office launched its Civil Rights Unit to centralize enforcement of the law.

Violations of the Civil Rights Act are treated as a civil offense and can result in a restraining order or injunction against the perpetrator, which might bar them from contact with the victim or from visiting a business where the violation occurred, as well as a fine of up to $5,000 per violation. In cases where a crime has occured, charges are brought by a county attorney who can pursue a hate crime enhancement, which allows for an extended sentence if the defendant is found guilty. 

According to spokeswoman Kate Giaquinto, the unit has litigated three Civil Rights Act enforcement actions since its creation in 2017. She did not have data on county prosecutions of hate crime sentencing enhancements.

"The way it works in New Hampshire is it's an enhancement on a sentence. So any criminal offense could be designated as a hate crime and have the sentencing enhancement applied to it," Civil Rights Unit Director Sean Locke said. "It would require the prosecutor to prove that the defendant's conduct was substantially motivated by animus toward the victim's membership in a protected class."

Locke noted that the First Amendment creates a "very high bar" for enforcement, meaning that instances of hurtful speech are not always treated as a civil rights violation if they don't rise to the level of threatening violence. Another aspect of the unit's work is public outreach and education to help communities understand the limits of the law, and the unit also works with the N.H. Human Rights Commission, which enforces state discrimination laws around employment, public accommodation, housing and education. 

"An individual or group may feel targeted by a particular statement that someone makes, but that statement, because it doesn't meet the necessary legal tests, isn't something where we could bring enforcement action against the individual who made the statements," Locke said.

In 2019, New Hampshire law enforcement agencies reported 16 hate crimes to the FBI, with half of those incidents motivated by race or ethnicity. The number of reports remained about level compared to the year before, when 13 hate crimes were reported and seven of them were motivated by race or ethnicity. Over the past two decades, the state saw the largest spike in hate crime reports in 2004, 2007 and 2008, federal data show, with the total surpassing 40 incidents in each of those years.

But experts say it’s difficult to draw conclusions about the prevalence of hate and extremism in New Hampshire from these figures. 

That’s partially because this annual reporting is voluntary. In 2019, 15,588 agencies submitted information about hate crimes to the FBI, while there are about 18,000 law enforcement agencies in the United States, according to the Bureau of Justice Statistics. That figures out to about 87% of departments. But of those, only 14%, or about 2,000, reported at least one hate crime in their jurisdiction. 

Lisa Jones, a research associate professor at the Crimes Against Children Research Center at the University of New Hampshire, said the way hate crimes are investigated can vary greatly from agency to agency, and a community or department’s local culture can affect how much attention these cases are given. 

And because the statistics don’t include incidents where no actual crime has been identified, the numbers don’t reflect more subtle forms of racism and bigotry.  

“Ideally, we would want to be capturing those incidents as well to really understand hate crimes behavior,” Jones said. “And that can be hard to do with official hate crime statistics, because it's a very narrow definition of what's happening in crime.”

In addition, a legacy of mistreatment by police can make people of color and members of other protected groups hesitant to report hate incidents to law enforcement, Jones said, and police might misclassify some crimes. So when a city reports to the FBI that zero hate crimes have occurred there in a given year — as Manchester did in 2019 — it’s difficult to take the number at face value. 

“When you think about, okay, it’s a city with a population of 100,000 people, and it’s a report of zero. There is a question of, was something not classified correctly? … Was there a reluctance to report?” said Robert Trestan, regional director of the Anti-Defamation League New England. 

The Manchester Police Department did not return a request for comment on the 2019 data.

Peter McBride, director of the Center for Holocaust and Genocide Studies at Keene State College, notes that the law has its limitations. When bigotry and racism go unchecked, these ideas are normalized, he said, and in extreme cases such as genocide, they become enshrined in law.

That’s why the importance of communities — and especially community leaders —  acknowledging and openly discussing these issues when they occur can’t be understated.

“It’s much more of a restorative model, one that allows communities to begin to engage with those subtle, sub-legal things that are going on and how to talk about those challenges,” McBride said. “ … Alongside, or I would argue underneath, the legal processes that are required and necessary and important.”

Locke encouraged any Granite Stater who believes they may have been the victim of a civil rights violation or hate crime to file a complaint with the Civil Rights Unit. Complaints can be submitted online via the Civil Rights Unit's website, by mail, or by phone at 603-271-3650. 

This article is part of a multiyear project exploring race and equity in New Hampshire produced by the partners of The Granite State News Collaborative. To get the latest stories from the project in your inbox, subscribe to our newsletter This is New Hampshire.