Financial Crimes against the Elderly as a Hate Crime in New York State

By Byhovsky, Irene | Albany Law Review, Summer 2018 | Go to article overview

Financial Crimes against the Elderly as a Hate Crime in New York State


Byhovsky, Irene, Albany Law Review


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.

I. 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 argued that [federal law] is outdated because [some statutes] fail [] to incorporate crimes motivated by the victim's gender, sexual orientation, or disability."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)

II. 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)

A. 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. …

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