Defrauding the Elderly: A Crime, For Sure, But a Hate Crime?
Criminals love the elderly. They see older individuals as easy marks, and often they are. Elderly citizens adopt individuals who are only interested in plundering their bank accounts. They lend money to people who quickly disappear as soon as the checks clear. Preying on the elderly is a crime of longstanding vintage. But what’s new, here, is treating defrauding the elderly as a hate crime. You are no doubt scratching your head—a hate crime, really? Well, the Queens District Attorney thinks so. Prosecutors in Queens have pursued hate crime charges against individuals accused of defrauding older Americans. The New York law in question requires prosecutors to prove that a crime was committed “because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability, or sexual orientation of a person.” The Queens DA’s Office reasons that the statute covers cases involving the targeting of the elderly for fraud even though the defendants clearly relish their victims because the statute only requires proof that the defendant committed the crime because of some belief about the protected group, rather than a bigoted one.
As the New York Times notes, this interpretation seems difficult to reconcile with the statute’s opening language, which clearly focuses on hate. The statute reads: “Crimes motivated by invidious hatred toward particular groups not only harm individual victims but send a powerful message of intolerance and discrimination to all members of the group to which the victim belongs.” That language conveys the classic justification for antidiscrimination laws: bias-motivated conduct deepens, and widens the net of, the harm suffered due to its demeaning and stigmatizing message.
To be sure, prosecutors will point to the statute’s plain language in any challenge to its enforcement in these circumstances. Perhaps that will be enough for reviewing courts. But really shouldn’t we ask whether targeting an elderly person because they are easy to deceive truly constitutes a hate crime, at least in the way that we understand antidiscrimination law? Steven Freeman of the Anti-Defamation League argues that using the statute in this way will “dilute its power.” Indeed. Using hate crime laws to address cases where defendants are motivated by something other than hate undermines the law’s expressive power. Hate laws send the message that bias-motivated conduct is wrong and harmful because of the shame and feelings of inferiority that targeted individuals and non-targeted members of their groups feel. Of course, some elderly individuals may feel embarrassment when hearing that other elderly individuals have been taken advantage of, but not because people hate and think they are less worthy due to their age. Elderly individuals with no resources to steal may feel no embarrassment, at least in the way that hate crimes law envisions. Using the hate crimes law in this way may generate a backlash if prosecutors continue to use this hate crimes law in this way. Let’s say a prosecutor brings hate crime charges against a greedy son who defrauds his elderly mother because he believes she is more vulnerable given her advanced age. Recall Brooke Astor and the mess involving her son who allegedly skimped on her care to ensure that he received more money after her death. Is that really a hate crime? Will people then view hate crimes as ridiculous?