On July 28, 2020, Philadelphia Chinatown resident Jing Chen and her 12 year old daughter were walking in the vicinity of 13th street where it intersects with Chestnut Street, when a female splashed an unknown liquid on them. Ms. Chen asked the woman what she was doing and what was wrong with her. The woman replied, “because you’re an Asian (or Chinese) b****”. Ms. Chen was eight months pregnant at the time of this incident. The woman looked at Ms. Chen’s abdomen, punched Ms. Chen once in the temple, and walked away. After this incident, Ms. Chen urged community leaders to “do something” as she feared COVID-19 had rendered Chinese and Asian Americans susceptible to incidents and crimes of hate. almost three weeks after this incident, the woman was charged with Simple Assault, Reckless Endangerment and Harassment for her actions against Ms. Chen and her daughter. Notably absent from the criminal charges was that of Ethnic Intimidation, known colloquially as a “hate crime.” Ethnic Intimidation is not a free-standing criminal offense. In order to establish the offense of Ethnic Intimidation, the state must prove an underlying criminal offense against the person or property of another was committed with malicious intention grounded in racial or ethnic animus. If the charge of Ethnic Intimidation is proven, the severity level of the underlying offense will be increased one level, thus resulting in an increased sentence or punishment.

In this case, the Philadelphia District attorney’s (DA) Office determined there was sufficient evidence to support the underlying offenses of assault, reckless endangerment, and/or harassment. However, the omission of the charge of Ethnic Intimidation reflects the conclusion the defendant lacked the requisite malicious intent. The DA’s position drew sharp criticism and concern from the Philadelphia Chinatown community, who has observed an increased occurrence of hate incidents since the arrival of COVID-19 in the United States.

To address their concerns with the handling of the criminal charges and the increased fear and demoralization of Chinatown residents and businesses, a town meeting convened via Zoom on August 14. The meeting was hosted by the Philadelphia Chinatown Development Corporation (PCDC). In attendance were Ms. Chen, community leaders, advocates, and political representatives, including Philadelphia City Councilman Mark Squilla, United States Congressman Dwight Evans, Pennsylvania state Congresswoman Mary Isaacson, Philadelphia District Attorney (D.A.) Larry Krasner and Philadelphia Police Department Chief Inspector Cynthia Dorsey. Among the many community leaders present was JACL Chapter President Rob Buscher.

Attorney Tsiwen Law of the Asian Pacific American Bar Association of Pennsylvania (APABA-PA) and the Organization of Chinese Americans (OCA), was called upon to provide attendees the legal background of Pennsylvania’s Ethnic Intimidation statute. Mr. Law explained that once an underlying criminal offense has been charged, the focus turns to whether the evidence establishes racial animus as a motivating factor for the offense. He explained that racial animus need not be the sole reason for the underlying crime, and the charge of Ethnic Intimidation may be established even if the offense was motivated by other factors in addition to racial/ethnic animus.

Rob Buscher noted the assaults upon Ms. Chen and her daughter are not a new trend in Philadelphia, and since February 2020, anti-Asian incidents have increased, noting that in the last two weeks of March 2020 alone, 1,100 anti-Asian hate incidents were reported to the online reporting forum “Stop AAPI (Asian American Pacific Islander) Hate.” Rob cited several examples, including the stabbing of a Hmong family at a Sam’s Club in Texas, the throwing of acid at a Chinese woman in Brooklyn as she was taking trash to her curb, and the assault of a bus driver in San Francisco who was hit with a baseball bat when he asked a passenger to wear a mask. Rob emphasized that prosecuting hate crimes as they occur was imperative both for public awareness and for targeted communities’ safety.

D.A. Larry Krasner expressed the importance for communities, elected officials and law enforcement to engage in open dialogue to ensure concerns were properly addressed. With respect to Ethnic Intimidation, Mr. Krasner noted that his office has prosecuted numerous cases during his term in office, including cases in which the victim was Asian American. He stated his office will continue to prosecute Ethinic Intimidation cases where appropriate. Mr. Krasner addressed Ms. Chen’s case with some specificity. He noted his office reviewed this case very carefully, and that reasonable minds may differ from his assessment, but that the evidence established (to him) three offenses: Simple Assault, Reckless Endangerment and Harassment. However, he believed this case was distinguishable from prior Ethnic Intimidation cases in ways that seriously called into question whether the defendant in the case possessed the requisite malicious intent because of the defendant’s history of mental illness, noting a prior encounter with Philadelphia Police in which the defendant assaulted (by biting) an officer as he tried to remove her from a SEPTA location. In that case, the defendant was referred to mental health court (as opposed to criminal court) due to mental illness. Mr. Krasner noted the concern of mental health advocates of conflating mental health illness with racism. Mr. Krasner indicated that if more information became available, his office would reconsider the evidence to see if the additional charge of Ethnic Intimidation was warranted. To date, no additional charges have been issued.

The Philadelphia Inquirer reported that after the meeting, Asian Americans United (AAU) issued a statement saying it does not support adding the Ethnic Intimidation charge, indicating that although it struggled in reaching this decision, in the time of COVID-19, Black and Asian communities are under deep stress, and “our desires for health, dignity, safety and more are more in common than not, and we must stand up for one another against the injustice we face.”

Clearly these are not normal times. Issues of racism and violence perpetrated upon people of color can be and are oftentimes fueled by the words of our leaders and public policy. Although the Ethnic Intimidation statute itself is silent as to the mental health of the defendant, legal precedent applied generally to criminal offenses provides that mental illness can negate the ability of a defendant to possess the state of mind necessary to uphold a criminal charge. According to Mr. Krasner, this defendant was previously referred to mental health court. Any assessment or recommendations reached from that prior mental health court referral would seem pertinent in this case. Also, a proper evaluation of this case should include a review of legal precedent in Ethnic Intimidation cases in which the mental health of the defendant is any issue and the role and duties of the DA’s Office when confronted with cases in which the defendant has a known/confirmed history of mental illness. JACL will continue to engage in community dialogues to ensure issues of racism are properly addressed.

by J. Horikawa as printed in the Philadelphia JACL newsletter, Issue 176, Summer 2020