FINANCIAL CRIMES AGAINST THE ELDERLY AS A HATE CRIME IN NEW YORK STATE.

• Author: Byhovsky, Irene
• Position: ARTICLES

INTRODUCTION

In the last few decades, legislators have raised concerns regarding the increase of hate crimes within the nation. (1) As a result, federal and state governments enacted a variety of statutes addressing this issue. (2) Such legislation often creates new types of crime, enhances criminal penalties for crimes associated with hate, or mandates reporting hate crimes to the appropriate authority. (3) Hate crimes are defined as crimes against a protected class, along the lines of race, ethnicity, religion, gender, sexual orientation, or age. (4)

This paper addresses issues of financial crimes against the elderly on both federal and state levels, with a particular focus on New York State; describes types of hate crime statutes, and their application to financial crimes against the elderly; discusses the social impact of such crimes; and proposes prevention measures for this problem.

1. FEDERAL HATE CRIME STATUTES

   Over the last forty years, the federal government enacted a number of statutes focusing on hate crimes. (5) One of the first statutes addressing hate crimes is 18 U.S.C. [section] 245, which Congress incorporated in the Civil Rights Act of 1968. (6) The statute "prevent[s] and punish[es]... violent interference with an individual's exercise of specified civil rights when the interference is motivated by the person's 'race, color, religion, or national origin."' (7) Further, in 1990, Congress passed the Hate Crime Statistic Act, (8) which requires "the U.S. Attorney General to acquire and publish annual data about crimes that 'manifest evidence of prejudice based on race, [gender and gender identity,] religion, [disability,] sexual orientation, or ethnicity.'" (9) Congress passed the Hate Crimes Sentencing Enhancement Act ("HCSEA") in 1994. (10) The HCSEA increased the penalties for "defendants who target[ed] their victims because of an identifiable characteristic, such as their race, ethnicity, religion, gender, or sexual orientation." (11) Before 2009, "[c]ritics... argued that [federal law] is outdated because [some statutes] fail [] to incorporate crimes motivated by the victim's gender, sexual orientation, or disability." (12)

   Numerous "attempts to expand the scope of federal hate crime legislation... were unsuccessful." (13) These attempts included the Hate Crimes Prevention Act of 1997, (14) the Hate Crimes Prevention Act of 1999, (15) and the Local Law Enforcement Hate Crimes Prevention Act of 2007. (16) "Each of these federal hate crime bills died in committee." (17) In 2009, however, "President Barack Obama signed into law the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which expanded the categories of protected victims to include those targeted because of actual or perceived gender, sexual orientation, gender identity, and disability." (18) However, federal "policymakers still fail to recognize that the rapidly expanding elderly population [also deserves] similar protections from hate crimes." (19) To date, none of the federal statutes include age. (20)

2. STATE HATE CRIME STATUTES

   At the present time, most of the states have enacted hate crime statutes. (21) Only Georgia lacks a hate crime statute. (22) "All states that have enacted hate crime legislation address crimes motivated by the victim's race, religion, or ethnicity." (23) Thirty-two states have statutes that address sexual orientation; (24) thirty-one states address disability; (25) twenty-nine address gender. (26) Only a few states include age as a protected category. (27) Among them are the District of Columbia, Florida, Iowa, Louisiana, Minnesota, Nebraska, Texas, Oregon, Vermont and New York. (28)

   1. New York State Hate Crime Act of 2000

   In 2000, the New York Senate enacted the Hate Crime Act that protects certain New Yorkers from crimes committed out of bias and hate. (29) The Hate Crime Act specifies that a hate crime is committed when the defendant commits an enumerated substantive offense and selects the victim based upon a belief or perception regarding such characteristics as "race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct." (30)

   Even after the passage of the Hate Crimes Act, hate crimes continue to pose a serious threat to people. According to the FBI's recently released 2014 Hate Crime Statistics, a report about bias-motivated incidents throughout the nation, "5,479 criminal incidents and 6,418 offenses... motivated by bias toward race, gender, gender identity, religion, disability, sexual orientation, and ethnicity [were reported] in 2014." (31) Although hate crimes have declined nationally from 6,628 criminal hate crime incidents involving 7,699 offenses reported in 2010, (32) in New York State, the hate crimes rate has sporadically increased throughout the years. (33) For example, in 2011, there were 556 hate crimes reported; this number increased by 31.6 percent in 2012. (34)

3. TYPES OF HATE CRIMES STATUTES

   "In theory, hate crime laws protect against crimes motivated by enmity or animus against a protected class." (35) In reality, not every hate crime statute requires animus. (36) Both state hate crime laws and federal laws differ from statute to statute, "but they can be divided into two main categories:" (1) animus-based, and (2) discriminatory-selection statutes. (37) The animus-based statutes are "those that define hate crimes as motivated substantially or in part by 'animus' or 'prejudice' against the victim because of the victim's group membership." (38) "A typical animus-based hate crime statute requires proof of 'prejudice,' 'bigotry and bias,' or 'hostility' based on the victim's group identity." (39)

   These statutes insist that the prosecutor prove that the defendant targeted the victim based on group identity and that hatred or prejudice was a central motivating factor in the crime. By contrast, discriminatory selection statutes do not require proof of animus, but only that the defendant intentionally selected the victim because of the victim's protected characteristic. (40) Under this type of statute, a crime "may appear less like a hate crime and more like a crime of opportunity." (41)

   Most statutes, including federal statutes, are non-animus based, and "do not require that a defendant act with prejudice or bias toward his [or her] victim." (42) This type of statute requires only that the defendant deliberately select his or her victim based on the victim's identity class. (43) "Because the reasons behind the defendant's selection do not matter, this [type of statute] does not require prosecutors to prove that hatred or animus motivated the defendant's actions." (44) One of the states that does not require animus is New York. (45)

4. FINANCIAL CRIMES AS HATE CRIMES

   Discriminatory-selection type statutes may apply to financial crimes, such as larceny, theft, security fraud, mortgage or investment fraud and others. Defendants who have committed one of those crimes can additionally be charged with such crimes as a hate crime when they intentionally "selected a victim based on the perception that it was easier or more profitable to commit a crime against a member of a given group." (46) Even when they "did not manifest feelings of hostility or prejudice towards the victim or his group." (47) In such a case, the perpetrator "is motivated by a desire to maximize his potential for success and the defendant uses a person's group membership as a proxy for the relative likelihood of that success." (48) Such defendants "appear to select their victims not because of any prejudice or animus towards them, but because of a 'rational' assessment of the relative ease of defrauding victims of a particular group." (49)

   For example, in New York, Queens District Attorney, Brown, charged the members of an auto insurance fraud scheme under the hate statute, arguing that the defendants targeted Asian-Americans. (50)

   The district attorney's theory was that the defendants "created" phony accidents by deliberately colliding with Asian drivers, selecting them based on the belief that the language barrier made them easy targets and "that they were bad drivers and that they would be blamed by police and insurers for the accidents, instead of the culprits." (51) In New York State, the Hate Crime Act of 2000 is a non-animus-based statute and is applicable to larceny committed against the protected class. (52)

   Generally, non-animus-based statutes support the extension of hate crime legislation to opportunistic crimes. (53) However, it is sometimes difficult to charge a defendant who has been accused of a financial crime with a hate crime under an animus-based statute, or to enhance sentencing under 18 U.S.C.S. Appx. [section] 3A1.1 Hate Crime Motivation or Vulnerable Victim for targeting certain groups. (54) Nevertheless, in United States v. Medrano, (55) the United States Court of Appeals for the Ninth Circuit affirmed the lower court's decision enhancing sentencing pursuant to 18 U.S.C.S. Appx [section] 3A1.1. (56) Ms. Medrano, a bank employee, pled guilty to fifteen counts of embezzlement under 18 U.S.C. [section] 656 for stealing $219,615.78 from customers' accounts. (57) "Medrano had targeted... Spanish-speaking migrant farm workers, who had come to the United States from one of the poorest areas in Mexico, who were unsophisticated in American banking practices, many of whom were illiterate." (58) Ms. Medrano was not charged with a hate crime, but her sentencing was enhanced on the theory that her victims were vulnerable. (59) The crime did not involve animus, however, the defendant's purposeful selection of her victims qualified her for the penalty enhancement. (60)

   Many states have enacted legislation allowing judges to impose sentencing enhancements for crimes that involve such targeting. (61) However, not every state has discriminatory selection...