The Ongoing Fight Against Antisemitism and Anti-Asian Hate: Legislative Developments
6.3.2024
In July 2023, New York State Bar Association Immediate Past President Richard Lewis convened the association’s Task Force on Combating Antisemitism and Anti-Asian Hate. The mission was to study and make recommendations for the analysis and development of laws, policies and best practices to enhance education on, and awareness of, antisemitic and anti-Asian violence and hate and to prosecute and deter hate crimes against these and other minority groups. We are pleased to say that the task force has published recommendations, and as discussed further below, the state Legislature has acted favorably upon one of our recommendations. We have also presented our recommendations to a similar task force in Connecticut and are planning a series of seminars over the next year in Manhattan.
The idea of the task force was initially discussed in April of 2022 because, at that time, antisemitism was already on the rise and there had also been an alarming spike in anti-Asian hate crimes since the start of the COVID-19 pandemic. Ultimately, the task force was launched based, in part, on the following data:
- In 2021, 746 anti-Asian hate crimes and 817 antisemitic hate crimes were reported to the FBI by law enforcement agencies.
- In 2020–2021, hate crimes against Asian Americans soared by 800%, and in 2020, there was a 1,662% rise in anti-Asian hate speech compared with 2019.
- Jewish people account for 2.4% of the U.S. population, but long before Oct. 7, the FBI reported that Jewish people were the victims of 63% of religiously motivated hate crimes.
And, of course, recent events have overtaken us; antisemitism and related hate crimes and incidents have risen at unprecedented and disturbing levels, and on college campuses hostility toward Jewish students is raging. In that regard, each year the Anti-Defamation League’s Center on Extremism tracks incidents of antisemitic harassment, vandalism and assault in the United States. Since 1979, it has published this information in its Annual Audit of Antisemitic Incidents. Its 2023 Audit of Antisemitic Incidents included the following:
- 8,873 antisemitic incidents have been reported across the United States, which represents a 140% increase from the 3,698 incidents recorded in 2022 and is the highest number on record since the Anti-Defamation League began tracking antisemitic incidents in 1979. The ADL tracked more incidents in 2023 than in the previous three years combined. This figure includes explicitly antisemitic and anti-Zionist rhetoric at 1,352 rallies across the United States.
- Incidents increased in all major audit categories. Assault incidents increased by 45% to 161 incidents, vandalism increased 69% to 2,177 incidents and harassment increased 184% to 6,535 incidents.
- The dramatic increase in incidents took place primarily in the period following the Oct. 7, 2023 terrorist attacks in Israel. Between Oct. 7 and the end of 2023, ADL tabulated 5,204 incidents – more than the incident total for the whole of 2022.
- Antisemitic incidents increased year over year in all major location categories. Incidents at K-12 schools increased by 135% to 1,162 incidents.
- On college campuses, antisemitic incidents spiked by a staggering 321% to 922 incidents, most of which occurred after the Oct. 7 terrorist attacks.[1]
In addition, according to the New York City Police Department, there were 96 antisemitic hate crimes reported in in the first three months of 2024, compared to 66 for the same period last year.
After Oct. 7, the work of the task force became pressing and time-sensitive, and on Jan. 19, 2024, we presented our Report and Recommendations, which was approved by NYSBA’s House of Delegates. In our report, we summarized the long history of antisemitism and anti-Asian hate and their various manifestations; both have been ever-present and are well-documented. The report also included several recommendations, which included proposed statutory changes discussed below that are needed more than ever.
Since the approval of our report, antisemitism has continued to rage, with an especially disturbing rise on America’s university campuses. According to the ADL’s analysis of 130 college encampment statements, more than two-thirds demanded policies that would directly impact the lives of Jewish students and faculty – including severing connections with Hillel International, the main on-campus organization for Jewish life. This is in addition to calls for these universities to disinvest from companies that the protestors believe profit from conducting business with Israel.[2] As the ADL stated, these demands “would fundamentally alter Jewish life on college campuses by dismantling or severely limiting essential Jewish communal and academic infrastructure and restricting who can freely exist in these spaces.”[3] In the current climate, Jewish students do not feel safe on college campuses, and we’re at the point that hate has become normalized and mainstream.[4]
In that regard, our task force urged certain changes that we believe will make the New York hate crimes law easier to enforce, and we are pleased to report that, as explained below, legislators are taking action.
The current law provides a list of crimes that can be subject to enhancement as a hate crime, but leaves out many offenses like graffiti, criminal obstruction of breathing and third-degree rape. We urged that all offenses be predicate acts for hate crimes and for the adoption of the proposed Hate Crimes Modernization Act, pending in the New York State Legislature, which would add to the list of predicate acts. In addition, New York law only provides “negative guidance” by defining what is not a hate crime. We advocated changing the law to permit jurors to consider the totality of the circumstances or to provide more examples of what constitutes a hate crime. Further, the new law covers only crimes that were committed in “substantial” part because of the presence of the forbidden animus. We urged deleting “substantial” so any crime committed because of that animus can be considered a hate crime if that animus played any role in the offense.
We also addressed internet hate speech, a clear and present danger that has increased dramatically, and urged the passage of the Stop Hiding Hate Act, which would require large social media companies to disclose their policies and moderation practices for online hate speech. Moreover, we recommended improving hate crime reporting, as the current situation is a patchwork of inconsistent laws that result in severe underreporting of hate crime in some states and urged adoption of some elements of the reporting laws of Oregon and New Jersey. Finally, we recommended enforcing New York’s Dignity for All Students Act and advocated measures to stop hate before it begins through education. We supported measures to increase compliance with the Dignity for All Students Act, which aspires to provide grade school students with a safe environment free from discrimination, intimidation, harassment and bullying.
Against this backdrop, we are pleased to report significant progress on our first initiative – the addition of several crimes that will now be subject to potential hate crime enhancement.
Enacted in 2000, New York State’s Hate Crimes Law, Article 485 of the New York Penal Law, defines a hate crime by reference to a list of 66 underlying offenses. These offenses can be elevated to treatment as a hate crime when an offender selects a victim because of a belief or perception about the victim regarding race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, or commits a certain crime because of a belief or perception regarding race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation. The Hate Crimes Law requires harsher sentences for offenders convicted of committing a hate crime. (See sidebar for list of offenses.) These offenses can serve as the predicate for hate crimes enhancement, provided that other elements of the hate crime statute, such as the requirement of a forbidden motivation for the crime (e.g. racial-, religious- or gender-based animus).
It’s not clear why only 66 offenses were included in the original legislation. As our task force’s report pointed out, in the federal statute and in the statutes found in most states, there is no similar limitation on the number of crimes subject to potential enhancement as hate crimes.[5] The limitation of the number of crimes subject to potential hate crimes enhancement created inconsistencies and gaps which the legislation passed this year helps to address. For example, this year’s amendment added such crimes that were inexplicably excluded from the hate crime statute such as first-degree murder, first- and second-degree gang assault and forcible touching.
The task force applauds the addition of these violent crimes to the hate crimes statute. The deletion of these crimes from the 2000 statute was inexplicable, and fixing these gaps in the coverage of the hate crimes statute is a huge step forward. The additions to the Hate Crimes Modernization Act [6] were first introduced by Senator Brad Hoylman-Sigal and Assemblymember Grace Lee in partnership with Manhattan District Attorney Alvin Bragg in 2023 to address a dramatic increase in hate crimes seen across the country, including in New York State.
As NYSBA Immediate Past President Richard Lewis commented: “We are pleased to see that one of the recommendations of our Task Force on Combating Antisemitism and Anti-Asian Hate – an increase in the number of crimes subject to the hate crimes statute – has been adopted in this year’s budget. We applaud the Legislature and the governor for the enactment of this timely and necessary legislation. We hope that this measure is just the first of many to combat the scourge of the crimes.”
Senator Hoylman-Sigal pushed the legislation in an effort to “close[] the dozens of loopholes in our hate crime statute to send an urgent message that hatred won’t be tolerated in our state.”[7]
Assemblymember Grace Lee noted, “In recent years, we’ve witnessed a disturbing surge in hate crimes. In this year’s budget, we are fixing our state’s antiquated hate crimes statute to protect New Yorkers.”[8]
We were proud to have Senator Shelley Mayer on our task force and greatly valued her wise counsel and guidance. Her comments on this legislation are especially noteworthy:
I am truly pleased that New York State is taking action to expand the list of offenses categorized as hate crimes to reflect the increase in these acts of hate. I was proud to have served on the New York State Bar Association Task Force on Combating Anti-Semitism and Asian Hate, which endorsed a substantial increase in the list of crimes subject to enhanced penalties as hate crimes, and this Act adopts many of their recommendations. This new Hate Crime Modernization Act reinforces our commitment to protecting all New Yorkers and our belief that New York is home to everyone. I thank my colleagues, Senator Hoylman-Sigal and Assemblymember Grace Lee, for introducing this legislation, our leaders, Majority Leader Andrea Stewart-Cousins and Speaker Carl Heastie, for their support, and Governor Kathy Hochul for her leadership on this critical issue.[9]
Crimes Included in the Hate Crimes Modernization Act.
- Gang assault in the first degree
- Gang assault in the second degree
- Criminal obstruction of breathing or blood circulation
- Murder in the first degree
- Aggravated murder
- Sexual misconduct
- Rape in the second degree
- Rape in the third degree
- Forcible touching
- Persistent sexual abuse
- Sexual abuse in the second degree
- Sexual abuse in the third degree
- Aggravated sexual abuse in the third degree
- Aggravated sexual abuse in the fourth degree
- Sex trafficking
- Sex trafficking of a child
- Falsely reporting an incident in the first degree
- Falsely reporting an incident in the second degree
- Falsely reporting an incident in the third degree
- Criminal possession of a weapon in the first degree
- Criminal possession of a weapon in the second degree
- Criminal sexual act in the second degree
- Criminal sexual act in the third degree
- Any attempt or conspiracy to commit any of the foregoing offenses
Vincent Chang and Brian Cohen are co-chairs of NYSBA’s Task Force on Combating Antisemitism and Anti-Asian Hate. Brian Cohen is a partner and co-founder of Lachtman Cohen & Belowich in White Plains and is president-elect of the Westchester County Bar Association. Vincent Chang is counsel to Davis Polk & Wardwell and is immediate past president of the New York County Lawyers Association, past president of the Asian American Bar Association of New York and serves on the Executive Committee of NYSBA.
[1] See Audit of Antisemitic Incidents 2023, ADL, Apr. 16, 2024, https://www.adl.org/resources/report/audit-antisemitic-incidents-2023.
[2] See What Do Anti-Israel Student Organizers Really Want? Examining the Extreme Demands Behind the Campus Protests, ADL, May 15, 2024, https://www.adl.org/resources/blog/what-do-anti-israel-student-organizers-really-want-examining-extreme-demands-behind.
[3] Id.
4 Luis Ferré-Sadurní, Colbi Edmonds, and Liset Cruz, Some Jewish Students Are Targeted as Protests Continue at Columbia, New York Times, April 21, 2024, https://www.nytimes.com/2024/04/21/nyregion/columbia-protests-antisemitism.html; Christina Marie Mariani, On Campus, Jewish and Muslim Students Fear for Their Safety, MSN, March 22, 2024, https://www.msn.com/en-us/news/world/on-campus-jewish-and-muslim-students-fear-for-their-safety/ar-BB1IFLIK.
[5] Report and Recommendations of the New York State Bar Association Task Force on Combating Antisemitism and Anti-Asian Hate, NYSBA Task Force on Combating Antisemitism and Anti-Asian Hate, Jan. 2024, https://nysba.org/app/uploads/2024/01/Task-Force-on-Combating-Antisemitism-and-Anti-Asian-Hate-Report-Final-Report.pdf.
[6] Id.
[7] Hate Crime Modernization Act Included in Final FY2025 State Budget, Manhattan District Attorney’s Office, Apr. 21, 2024, https://manhattanda.org/hate-crime-modernization-act-included-in-final-fy2025-state-budget/.
[8] Id.
[9] Id.
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