'Rendered invisible'

Burlington, Vermont – If it can happen here, it can happen anywhere.

That is a feeling shared by many residents in Burlington, Vermont, a small city in the northeastern United States where three Palestinian college students were shot late last year while walking down a residential street.

Hisham Awartani, Kinnan Abdalhamid and Tahseen Ahmad had been speaking a mixture of Arabic and English when they were attacked on November 25. Two of the students were wearing Palestinian keffiyeh scarves.

All three survived, but Awartani was left paralysed from the chest down.

The shooting has shone a spotlight on how suspected hate crimes in the US have increased in the shadow of Israel’s war on Gaza.

But it also raises questions about how hate crimes are defined and whether a lack of data affects how seriously some incidents are taken.

While many people in Burlington believe the three young men were targeted because of their Palestinian identity, authorities are still investigating and have not filed any hate crime charges yet.

That has fuelled a sense of confusion, residents told Al Jazeera, as well as lingering frustration that hate-fuelled violence against Palestinians and Arabs, as well as Muslims, is not a priority.

“If the same kids didn’t wear the keffiyeh or didn’t speak Arabic, do you think they would be shot? No,” said Fuad Al-Amoody, the vice president of the Islamic Society of Vermont (ISV).

“How then [are we] saying this is not a hate crime?” Al-Amoody asked Al Jazeera in an interview last month at the ISV’s mosque and community centre in South Burlington. “We should maintain the same standard across the board.”

The first federal law addressing hate crimes in the US dates back to the 1960s civil rights movement, when a wave of white supremacist violence was sweeping the country.

The Civil Rights Act of 1968 prohibited the use or threat of force to block a person from accessing federally protected activities such as education and employment, based on their race, colour, religion or national origin.

By the 1980s, however, US lawmakers acknowledged (PDF) that there was “no comprehensive, accurate and up-to-date statistics kept on the national incidence of hate crimes”.

So in 1990, the US Congress passed the Hate Crimes Statistics Act, requiring the Department of Justice to collect and publish data annually on crimes “that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity”.

Since then, other federal laws have expanded the definition of “hate crime” to include acts motivated by sexual orientation, disability, gender or gender identity. US states also have hate crime statutes that lay out their own definitions and what penalties can be imposed.

Yet, despite these initiatives, experts like Maya Berry, the executive director of the Arab American Institute, say the government’s data “suffers from a chronic underreporting problem”.

That is in part because targeted communities have often been reluctant to report incidents out of distrust for police and fear of retribution. Many police agencies do not contribute data to the Federal Bureau of Investigation (FBI) – which has been publishing hate crime reports since the early 1990s – because the process is voluntary. Some US states also do not have hate crime laws.

Berry explained that, while about 10,000 hate crimes are typically reported each year, the real number is likely closer to 250,000, according to the government’s own estimates. “There is a very real and chronic underreporting problem – full stop,” she told Al Jazeera.

Still, Berry said the limited data available clearly shows that the US is in the grips of a wave of hate.

The FBI reported a total of 10,840 hate crime incidents, including violent and property crimes, in 2021 – up 31 percent from 8,263 the previous year. And in 2022, the most recent year for which annual statistics are available, the FBI reported 11,634 incidents.

“Hate crimes rooted in race, ethnicity or ancestry remain the most common,” the agency found. Black people were targeted more than three times more than the next racial or ethnic group.

Getting accurate figures on hate crimes against Arab Americans, in particular, comes with its own challenges.

That is because from the early 1990s until 2015, the US’s data collection system did not have a specific category for a crime motivated by anti-Arab bias – a designation known as “Code 31”.

“As a result, anti-Arab hate crime was excluded from federal statistics until 2015, when the FBI reintroduced Code 31 into its data collections,” the Arab American Institute explained in a 2018 report (PDF).

Berry said the results of this dearth of information have been clear. “We are highly visible when we’re targeted and then rendered invisible when we’re attempting to diagnose the problem and identify the data,” she told Al Jazeera.

“I don’t think you can formulate the policy responses you need to, I don’t think you can do the kind of educational programming you need to, and I don’t think you can work with the community to increase the reporting of hate crimes if we don’t understand what that community is facing.”

Over the past few months, community groups say anti-Palestinian, anti-Arab and anti-Muslim hate incidents have surged in the US amid Israel’s military offensive in the Gaza Strip, which began on October 7.

The Council on American-Islamic Relations (CAIR) said it received 3,578 complaints of anti-Palestinian and anti-Muslim incidents in the last three months of 2023 – a 178 percent increase compared with the same period a year earlier.

In some cases, suspects have been charged with hate crimes. This includes the fatal stabbing of a Palestinian American boy, Wadea al-Fayoume, in a Chicago suburb in October.

In early February, police in Austin, Texas, also determined that a recent stabbing of a young Palestinian American man named Zacharia Doar met “the definition of a hate crime”.

Doar, 23, and his friends were coming back from a pro-Palestinian demonstration on February 4 when a man attempted to rip a keffiyeh off their car. According to reports, the suspect hurled racial epithets at them and later attacked Doar with a knife.

“This is a classic case of a hate crime,” Mustafaa Carroll, the interim executive director of CAIR’s Texas branch, told Al Jazeera.

“You had violence, you had the cursing, you had the calling them names. You had the pulling of the Palestinian keffiyeh. There were so many things in it that it was hard not to classify it as a hate crime.”

When asked if hate crime charges had been filed, the Travis County District Attorney’s Office told Al Jazeera in an email in late February that it was “in the process of receiving the evidence on this case from the Austin Police Department and look[s] forward to working with them”.

But other incidents require lengthy investigations to determine whether they meet the legal threshold for a hate crime.

A hate crime is often not treated as an offence on its own. Rather, it is added on as a motivating factor for a criminal offence like murder or assault, in order to impose stricter penalties on the accused.

Vermont, for instance, does not have a standalone criminal charge called a hate crime. Instead, it has what is known as a “hate crime enhancement”, which requires prosecutors to prove that the crime was motivated by bias.

If proven, the enhancement then prescribes longer sentences or requires judges to take the hate crime element into account when making their sentencing decisions.

Sarah George, the state’s attorney for Chittenden County, which encompasses Burlington, said in November that “although we do not yet have evidence to support a hate crime enhancement” in the shooting of the three Palestinian students, “there is no question this was a hateful act”.

George told reporters that sometimes, the evidence supporting a hate crime enhancement is clear “based on things that might have been said by the defendant or things that may have been immediately present in an apartment or online”.

But, she added, “we do need direct and great evidence to support that additional element”.

George’s office did not respond to Al Jazeera’s requests for comment on whether a hate crime enhancement would be filed in the students’ case. The office of the US Attorney for Vermont has also said it is investigating whether the attack violated federal laws.

Hate crimes are notoriously difficult to prove, too. Janice Iwama, an associate professor at American University and an expert on hate crimes, said authorities must prove not just that a person is biased or holds prejudices, but that “when they committed the crime, they committed that crime out of hate”.

“That is what really makes it hard,” she told Al Jazeera. “How do you prove that somebody was motivated based on their bias? That’s cognitive thinking that we just don’t have access to.”

Lia Ernst, the legal director at the Vermont chapter of the American Civil Liberties Union (ACLU), also noted that the burden of proof is high for hate crimes – for good reason.

“If the bar were low, we would get into areas where a person was given additional penalties solely because they have beliefs that we find disgraceful or disgusting or untenable,” she told Al Jazeera.

In the case of the three Palestinian students, Ernst said that, without knowing what evidence police and prosecutors have uncovered, “it’s very hard to say” whether the threshold for filing a hate crime enhancement is met.

The accused shooter, who has pleaded not guilty to three counts of attempted murder, was not reported to have said anything when he opened fire. His lawyer told local media in early March that prosecutors had not yet presented evidence to indicate they would be filing a hate crime enhancement.

Still, Ernst said that “the publicly available information appears to suggest that these young men may in fact have been intentionally targeted because of their identity as members of a protected class”.

While prosecuting hate crimes may not be easy, experts say it can have an important effect on targeted communities.

According to Carroll at CAIR-Texas, hate crime charges can provide a form of relief to community members by recognising their pain.

It can also offer confirmation that the crime was not random but rather “directed at them because of who they are”.

“So if you get that label as a hate crime, people say, ‘Oh they finally understand.’ Or: ‘They see it. They know that it is what it is,’” he told Al Jazeera.

“Now whether or not [a hate crime charge] solves hate, I don’t think it’s going to solve that,” Carroll added. “But it at least makes people feel like somebody is listening or hearing or seeing what’s happening to them.”

Iwama, the American University professor, said the effect on communities reveals why it is important for law enforcement agencies to take hate incidents seriously: The sense of empowerment and recognition can encourage people to report further attacks.

“It reduces the level of fear… when they realise that justice is actually taking place,” she added.

In 2022, US President Joe Biden’s administration launched a national initiative to combat hate. Dubbed “United Against Hate”, it directed attorney generals’ offices across the country to hold local forums, educate about how to report hate crimes, and build trust between communities and law enforcement.

While Berry at the Arab American Institute said the Biden administration has made responding to hate crimes a priority, she worries the process “is simply, frankly taking too long” at a time of heightened hate in the US.

“One would want this to have been addressed in any climate. But one certainly needs it to be addressed in the current climate that we’re facing.”

She said hate crime reporting must become mandatory, and “there has to be a significant engagement with local law enforcement to better understand how to report” it.

Arab American leaders also have stressed the importance of clearly labelling hate crimes and other incidents as anti-Arab, instead of conflating them with anti-Muslim religious hate, which also has been on the rise.

“There is a very real anti-Muslim bigotry problem here,” Berry said.

“So I don’t want to at all suggest that that’s not real or to diminish the problem. I just think that we can and must understand and attempt to address the very real anti-Arab animus that informs some of this hate.”

Back in Burlington, Vermont, some residents are still struggling to understand why authorities have yet to file a hate crime enhancement in the case of the three students.

Wafic Faour, a Palestinian refugee and activist with Vermonters for Justice in Palestine, said the failure to do so speaks volumes.

Faour said he has no doubt that, if three visibly Jewish students had been shot in a similar incident, it would immediately have been classified as a hate crime.

That has increased feelings of anger and fear, the 64-year-old told Al Jazeera from a cafe in downtown Burlington. He sees a double standard at play.

Still, Faour said November’s attack will not stop Palestine advocates from speaking out. He sported a black-and-white keffiyeh – just like two of the students had been wearing on the night of the shooting.

“Any hate crime whatsoever, one of its major purposes is to plant fear and to bring chaos to the community,” Faour said.

“And to break that fear, you have to do the opposite exactly – to tell those aggressors that we are here, we’re still alive and we’re still functioning, and we can gather together, we can celebrate together and we can fight together.”