Since the slaying of 17-year-old Nikki Kuhnhausen, several readers have asked The Columbian whether her killing fits the definition of a hate crime.
David Y. Bogdanov of Vancouver is accused of second-degree murder in her death. Authorities allege the 25-year-old man strangled Kuhnhausen after learning she was transgender.
“She didn’t deserve this — that hatred, the last thing she felt on this earth,” Kuhnhausen’s mother, Lisa Woods, said at a Dec. 20 vigil. “Yes, she was murdered out of hatred because she was transgender.”
Bogdanov has not been charged with a hate crime. Vancouver police Lt. Tom Ryan said during a press conference last month that Kuhnhausen being transgender is suspected to have played a role in Bogdanov’s alleged deadly actions, but investigators think it was not a targeted killing.
“Although investigators cannot show premeditation for (Bogdanov’s alleged actions) … we believe there was a hate crime and Nikki had no chance whatsoever, whether she was LBGTQ, even a woman, for that matter,” said Michelle Bart, president and co-founder of the Vancouver-based National Women’s Coalition Against Violence & Exploitation.
Washington law defines a hate, or “bias motivated” offense, as a crime or threat against someone because of their race, color, religion, ancestry, national origin, gender, gender identity or expression, sexual orientation, or mental, physical or sensory handicaps.
During the last legislative session, state lawmakers passed a bill that renamed and redefined several aspects of Washington’s hate crime law. Previously, crimes motivated by hate were prosecuted as malicious harassment. Now, they’re simply called hate crime offenses.
The legislation also added “gender identity or expression” to the list of protected categories, and it created an advisory work group that will try to identify the root causes of and prevent hate crimes.
A hate crime offense is a class C felony, which carries a maximum of five years in prison. It’s prosecuted similarly to other crimes. The current version of the law states that anyone who commits another crime during the commission of a hate crime may be punished and prosecuted for the other crime separately.
Rise in hate crimes
Kuhnhausen disappeared in early June. Her remains were discovered Dec. 7 after someone reported finding a human skull in the woods at Larch Mountain, southeast of Battle Ground.
Bogdanov appeared on the morning of Dec. 18 in Clark County Superior Court in connection with Kuhnhausen’s death. He has a bail hearing scheduled for Thursday. Kuhnhausen’s family and supporters are expected to attend.
He told detectives he encountered Kuhnhausen on the night of June 5 in the 1300 block of Main Street in downtown Vancouver and invited her to join him and his brothers at a bar, according to a probable cause affidavit.
They drank together, parted ways early on June 6 and then reunited later that morning after communicating via Snapchat and exchanging addresses. As Kuhnhausen and Bogdanov chatted in a vehicle, she told him she was transgender, the affidavit says.
“David said that he was ‘shocked’ and ‘uncomfortable’ and ‘really, really disturbed’ to learn Nikki was male and asked her to get out of the van and leave,” the court document reads.
“I believe that David became enraged at the realization that he had engaged in sexual contact with a male whom he believed to be female and strangled Nikki to death,” the affidavit later asserts.
Vancouver police Sgt. Jeff Kipp said the evidence collected so far supports detectives’ decision to forward the second-degree murder charge to the county prosecutor, who will review the case and determine if there’s a more appropriate charge, he said.
Clark County Prosecuting Attorney Tony Golik said his office is still evaluating the case and the evidence against Bogdanov, and the charge may be amended before going to trial. Golik declined to discuss the potential for a hate crime charge being added to the case.
Seattle-based lawyer Anne Bremner said that if a criminal case lacks clear evidence showing a strong basis for a hate crime, prosecutors may be reluctant to file such a charge. The proof has to be beyond a reasonable doubt to ensure a unanimous jury verdict, Bremner said.
Second-degree murder “is a serious charge that’s going to determine bail. But I think it’s important to (LGBTQ advocacy groups) that when there is a bias involved in an alleged crime based on hate, based on gender expression, it’s important that it be recognized and prosecuted,” Bremner said.
“I don’t want to prejudice this case, but I will say that when police have evidence that shows when someone found out about another person’s gender identity and had an adverse reaction that resulted in a homicide, then there’s at least some circumstantial evidence that it could be a hate crime … if you look at this objectively, there wasn’t a homicide for any other reason or motive,” she said.
Bremner said there recently has been heightened awareness of hate crimes being on the rise in Washington and nationwide. Law enforcement and lawmakers have taken steps to combat the trend.
In 2018, the Washington Association of Sheriffs and Police Chiefs, the organization in charge of collecting and reporting on hate crimes, received 765 reports of offenses where the victim was targeted for a characteristic protected by state law.
According to 2018 hate crime data from the FBI, Washington ranks second nationwide for the most hate crimes. Agencies here reported 666 such crimes, the data say. California reported 1,222 bias-motivated crimes last year.
The Clark County Prosecuting Attorney’s Office has tried 19 hate crime, or malicious mischief, cases over the past five years, Golik said. According to his numbers, prosecutors handled only a single such case in 2017; the next year, they handled six. All other years since 2015, there were four hate crime cases.
“We consistently have several cases each year,” Golik said.
‘Bias rage defense’
The working group created during the last state legislative session will develop strategies to raise awareness of hate crimes and aid law enforcement’s responses to those incidents.
“In creating this working group, Washington is demonstrating its commitment to the safety of all its residents, regardless of their gender, national origin or religion,” Attorney General Bob Ferguson said in a press release announcing the group.
“Our Hate Crime Advisory Working Group will be taking a hard look at what kind of hate crimes are happening in Washington and how we can strengthen our response and support victims.”
Bart, with NWCAVE, said during the vigil for Kuhnhausen that the teen will be the nonprofit’s cause for 2020. The organization is pushing for a new “Nikki’s Law” to address hate crimes and has already reached out to legislators, including Rep. Sharon Wylie, D-Vancouver.
Wylie said Tuesday that she is researching the current law and speaking with colleagues about whether changes are needed.
“If there is a way to strengthen our laws for crime like this, I’m certainly going to be introducing legislation to make what kind of things are considered hate crimes more definitive, more clear,” Wylie said.
Bogdanov has not yet been formally charged, and it’s not clear what defense he may present.
However, advocates, such as the Gender Justice League, have expressed concerns that Bogdanov’s statements to police fit what’s known as a bias rage or panic defense, where a defendant claims they should face less responsibility for their actions because they were startled to discover someone was transgender or gay.
Last year, the Legislature considered House Bill 1687, which would have prohibited panic defenses. It stalled in the House Rules Committee and was not passed.
In a letter asking legislators to support the bill, Denise Diskin, executive director of the QLaw Foundation of Washington wrote, “When a criminal defendant employs a gay or trans panic defense, they are asking our legal system to endorse the notion that our mere existence — going on dates, initiating consensual romantic encounters, or engaging in other interpersonal relationships — is enraging, and are playing upon the implicit biases of jurors to garner sympathy for that view.”
Diskin said in an email to The Columbian that those defenses have been raised largely in other states, but legal protections against them are needed.
“Transgender girls and women in our state, like all people, deserve to be treated with care and respect. David Bogdanov showed neither care nor respect for Nikki Kuhnhausen, and it is our hope that the legal system will not allow Nikki’s gender to excuse any of his actions toward her,” Diskin said.