In an article published in Lawfare, law professor Dawinder S. Sidhu offers an interesting (and coincidental) counterpoint to Monday’s post on this blog about the concept of “mistaken identity” and its use to explain hate crimes in which Sikh Americans are victims. Wherein the piece on this blog expressed issues with using mistaken identity as a rationale for explaining attacks against Sikh Americans (and whereby these attacks are ascribed to the attacker confusing the victim for a Muslim or terrorist), Professor Sidhu claims that dismissing mistaken identity arguments is problematic and counter-productive to addressing hate crimes affecting the Sikh and Muslim communities in the post-9/11, post-Paris and post-San Bernardino environment:

The explanation of mistaken identity does not imply that mistreatment of Muslims is legitimate. To the contrary, this explanation tracks the true scope of anti-Muslim bigotry across communities. Consider federal disability law. The Americans With Disabilities Act prohibits discrimination against an individual who is disabled, and also prohibits discrimination against an individual who is “regarded as” disabled. By extending legal protections to individuals misperceived to be disabled, Congress meant to capture that discrimination which was based on “unfounded concerns, mistaken beliefs, fears, myths, or prejudice” of the disabled.

While I do find much to agree with in Professor Sidhu’s article, I also find our opinions diverge at several key themes.

To Professor’s Sidhu’s point, the explanation of mistaken identity may not imply that Muslims are the ones to be targeted. However, it is difficult to guarantee that this assumption is the case in most circumstances in the use of this explanation. In fact, only recently has a qualification started to emerge more commonly in discourse that also emphasizes that no one should be the victim regardless of motive. And, it leaves to the mind of the listener to fill in the gap — one that we aren’t sure isn’t already occupied with an Islamophobic sentiment already.

Secondly, legal protections are extended to all victims of violence despite the origin — this is not the issue around the use of mistaken identity as a rationale. However, at issue is whether we feel it is reasonable to explain away an attack by ascribing the rationale to something else beyond the victim. Using Professor Sidhu’s analogy around discrimination against a non-disabled victim under “mistaken identity” that this person was disabled, is it reasonable from an advocacy standpoint for the victim to simply state as an explanation that “I was discriminated against because the person mistook me for a disabled person. I am not a disabled person.”

It again leaves to the mind of the listener to fill in the gap — that regardless of the reason, no one deserved to be attacked or discriminated against, and therein lies the issue.

Professor Sidhu also appears to make a non sequitur argument, when he asserts that:

…to call for an end to “mistaken identity” draws the Sikh community away from efforts which may reduce hate violence in the first place. In general, Sikhs can inform a broader conversation about the immense diversity and depth of minority communities in America. In particular, Sikhs can focus on a new image of the community – such as Capt. Simratpal Singh, a turbaned Sikh serving in the U.S. Army – where these positive, alternative portrayals can help change broader attitudes about Sikhs.

The connection between the use of mistaken identity as an explanation and then attempting to focus on creating a “new” image of minority communities seems tenuous when the mistaken identity rationale itself leaves much to ambiguity. I reiterate that the mistaken identity reasoning introduces ambiguity and distracts away from the source of the act — why hate violence occurs in the first place — regardless of its manifestation as anti-Muslim, anti-Sikh or anti-immigrant.

Another point of divergence in our views is around the “victimization” mentality that Professor Sidhu asserts is the result of distancing away from the mistaken identity rationale. The claim is that by not accepting this explanation, we perpetuate a culture of victimization in society. However, I believe the converse is true. Explaining an attack against a Sikh American as a case of mistaking that Sikh as a Muslim or terrorist actually diminishes the experience of the victim — it dilutes the individual and personal nature of the attack and ascribes the discrimination to something else besides the victim. Instead, the attention around the act is directed to something else — Islamophobia, Muslims or another entity removed from the victim her- or himself. How the victim and community can then achieve justice becomes compromised when the origin of the attack becomes a case of a misunderstanding rather than an identification of a greater trend in our society.

The last point above brings to mind the most salient point: while Professor Sidhu’s article is focused on the time period after September 11, 2001, it is a near-sighted view that isolates the use and interpretation of mistaken identity to only a limited context. When we consider the history of discrimination against religious communities, immigrant groups, enslaved people, indigenous people and people of color, we find that the discrimination consistently comes from one source based on notions of xenophobia and white supremacy, regardless of any other pretense or rationale. Explaining crimes as mistaken identity begins to cloud the looking glass through which we may identify and address the source of the discrimination.

For a century before 9/11, Sikhs have been miscategorized as various different identities. At the turn of the 20th century, they were attacked under the label “hindoo,” or as “Hindu Hordes,” — these victims were not discriminated against because of any confusion, they were targeted specifically for their difference. The mistaken identity aspect was incidental to the crime, not the crime itself.  Thus, it is not enough to deny we are any of these things — Hindu or Muslim or any other mislabel. The onus of rationalizing these attacks seems to be misplaced.

To frame the discrimination in such a way as to place the victim in a position to explain why they have been attacked, rather than to place the onus on the ideology behind crime, is a perverse strategy that only serves to facilitate the perpetuation of these attacks in the first place.

Read Professor Dawinder S. Sidhu’s article in Lawfare in support of “mistaken identity” rationales here. Read this blog’s post critiquing “mistaken identity” here.