Consultation on amending Scottish hate crime legislation: analysis of responses

13. Exploitation and vulnerability (Q28 and Q29)

Part Four: Exploitation and vulnerability

13.1 The consultation paper explained that the threshold for an offence under current hate crime legislation requires evidence of hostility by the perpetrator towards a person or persons due to their perceived membership of a particular group.

13.2 However, Lord Bracadale’s report distinguished between crimes based on hostility towards a particular group, and crimes where the perpetrator targets a victim because of the perpetrator’s perceptions about the vulnerability of the victim. Lord Bracadale noted that vulnerability may arise from issues associated with a protected characteristic, rather than from the characteristic itself – e.g. older people may be frail and have memory difficulties. Lord Bracadale argued that if hate crime is redefined to include vulnerability – as well as hostility / prejudice – it would ‘lose its special symbolic power’. Therefore, he recommended an alternative approach, involving the introduction of a general aggravation, outwith hate crime legislation, relating to the exploitation of vulnerability. (Recommendations 3 and 11). Respondents were asked for their views on this issue.

Question 28: Do you think a statutory aggravation (outwith hate crime legislation) should be introduced that could be applied when a perpetrator exploits the vulnerability of the victim? [Yes / No / Unsure]

Question 29: If you think a statutory aggravation (outwith hate crime legislation) should be introduced that could be applied when a perpetrator exploits the vulnerability of the victim, please provide details of the circumstances that you think such an aggravation should cover?

Key points

• Overall, views were mixed on a possible new statutory aggravation (outwith hate crime legislation) that could be applied in cases where a perpetrator exploits the vulnerability of the victim. However, most organisations, 62% (representing 39 of 63 respondents), favoured such an aggravation, compared to 45% of individuals (195 of 429 respondents).
• Those who were in favour argued that there was a need for such a statutory aggravation to cover crimes against people with protected characteristics (particularly age and disability) that are not motivated by hatred / prejudice. 
• Respondents highlighted significant complexities and challenges in defining an offence with reference to the vulnerability of the victim. The concept of ‘vulnerability’ was also seen as problematic, given that vulnerability is relative, can fluctuate and can have a range of causes.
• Those supporting the introduction of a vulnerability-related statutory aggravation thought that the offence should cover circumstances involving all types of harm (physical, psychological, sexual), neglect and conduct which involves the appropriation of (and which adversely affects) the property, rights or interests of the victim.

Views on a new vulnerability-related statutory aggravation (Q28)

13.3 Respondents were asked to give their views on whether a (new) statutory aggravation (outwith hate crime legislation) should be introduced in cases where a perpetrator exploits the vulnerability of the victim.

13.4 Table 13.1 shows that there were mixed views overall on this question – 48% said ‘yes’, 32% said ‘no’ and 21% said ‘unsure’. However, a majority of organisations supported this option (62% answered ‘yes’, compared to 45% of individuals). Faith groups were the only exception with five out of seven respondents answering ‘no’.

Table 13.1: Q28 – Do you think a statutory aggravation (outwith hate crime legislation) should be introduced that could be applied when a perpetrator exploits the vulnerability of the victim?

	Yes		No		Unsure		Total
Respondent type	n	%	n	%	n	%	n	%
Third sector organisations	15	54%	4	14%	9	32%	28	100%
Public sector / partnerships	18	82%	1	5%	3	14%	22	100%
Faith groups	1	14%	5	71%	1	14%	7	100%
Other organisations	5	83%	–	0%	1	17%	6	100%
Total organisations	39	62%	10	16%	14	22%	63	100%
Total individuals	195	45%	147	34%	87	20%	429	100%
Total (organisations and individuals)	234	48%	157	32%	101	21%	492	100%

Percentages may not total 100% due to rounding.

13.5 A total of 203 respondents (47 organisations and 156 individuals) commented at Question 28.

13.6 Regarding the organisations who answered ‘unsure’ to this question, it is worth noting the following points:

• Most organisations answering ‘unsure’ raised concerns about the complexity and challenges relating to the concept of ‘vulnerability’ and how a vulnerability aggravation would operate in practice. Similar issues were raised by those who answered ‘yes’ and ‘no’ to this question, and these issues are discussed further below (paragraph 13.13).
• Some third sector organisations favoured the introduction of a vulnerability-related aggravation specifically for older people, instead of the introduction of a new statutory aggravation based on age hostility (see Chapter 7 of this report) – unless there was evidence to indicate that crimes against older people are frequently motived by age-related hostility. However, these organisations explicitly stated that they had no position on the question of whether there is a need for a general vulnerability-related aggravation. 

13.7 Individuals who answered ‘unsure’ to this question made a wide range of disparate comments. The two main themes in these comments were that: (i) respondents did not understand the question, or (ii) respondents wanted clarification, in particular about the meaning of ‘vulnerability’. 

Support for a new vulnerability-related aggravation

13.8 Respondents answering ‘yes’ to Question 28 generally agreed with Lord Bracadale’s arguments that there is a distinction between offences motivated by hostility / prejudice and ‘more opportunistic’ offences which seek to exploit the vulnerability of the victim. They agreed that the latter should not be prosecuted through hate crime legislation, but they also believed that the exploitation of vulnerable individuals should be seen as an aggravated offence.

13.9 These respondents often pointed to a need for a new vulnerability-related aggravation – particularly with regard to crimes committed against older people and people with disabilities (including people with a learning disability, autism or mental illness). They argued that, at present, many crimes committed against these groups are not prosecuted because they do not meet the threshold for a hate crime (i.e. an offence motivated by hatred or prejudice towards an individual because of their membership of a particular group). In addition, it was reported that, where a prosecution is brought forward under hate crime legislation, it often fails if the offence can be characterised as opportunistic exploitation of the victim’s (perceived) vulnerability. There was also a recurring view that crimes involving, for example, elder abuse or the exploitation of a disabled person, are not taken as seriously as crimes against other victims of abuse (e.g. children or victims of domestic abuse). Some individuals suggested that there is not currently enough protection given to the most vulnerable members of society; others said that they were surprised that there were not already criminal laws that protected vulnerable people from exploitation.

13.10 It was noted that procedures under the Adult Support and Protection (Scotland) Act 2007 (referred to elsewhere in this chapter as the 2007 Act) can be used to intervene and protect an adult at risk of harm. However, these measures do not involve criminal proceedings – the introduction of a statutory aggravation would give a clearer, stronger message that the exploitation of vulnerability will not be tolerated.

13.11 Some respondents identified other benefits of having a new statutory aggravation relating to the exploitation of vulnerability, including that:

• It would give proper weight to the impact of the crime on the victim.
• It would ‘compel’ judges to take these factors into account in sentencing decisions – rather than allowing this to be done on a discretionary basis.
• It would lead to greater consistency in how these kinds of offences are prosecuted.
• It may act as a deterrent.
• It would address the imbalance of power which makes vulnerable people more likely to be victims of crime.

13.12 While respondents often discussed this issue in relation to people with physical or mental disabilities and older people, some suggested that a new aggravation may also be applicable to children and young people, minority ethnic groups, victims of human trafficking, and people who cannot read or write. In addition, there was a recurring view in responses from public sector organisations that consideration should be given to whether the new statutory aggravation could cover women who are exploited through prostitution. 

The concept of ‘vulnerability’

13.13 The main issue raised by respondents in relation to the introduction of a new general vulnerability-related aggravation concerned the complexity and challenge of defining an offence with reference to the ‘vulnerability’ of the victim. This issue was, in fact, raised not only by those who answered ‘yes’ to Question 28, but also those who answered ‘no’ and ‘unsure’. Respondents supporting the introduction of the new aggravation made several related points:

• There were concerns about ‘labelling’ people as vulnerable. This concern was raised repeatedly among organisational respondents. This group noted that labelling people in this way is disempowering, not only for older people – many of whom are not vulnerable – but also for individuals with disabilities (including people who are deaf and people with learning disabilities) who may not see themselves as vulnerable. Respondents thought it was important that the language used in the aggravation should not imply that certain groups are ‘helpless’ and ‘in need of protection’, nor should it give the impression that the victims are partly to blame for what has happened to them – i.e. because of their weakness. Some respondents suggested that the legislation should be defined in terms of the perpetrator’s perception of vulnerability, rather than the victim’s vulnerability. Others noted that similar issues were raised during the drafting of the 2007 Act, where the term ‘a vulnerable adult’ was replaced with ‘an adult at risk of harm’. Other suggestions for alternative terminology included: ‘crime against a disabled person’; ‘harm of an individual who requires support or care’; and ‘offence against an individual unable or less able to defend themselves or to recognise that they are being harmed’.
• Vulnerability can fluctuate and can have many causes. It was noted that anyone can be vulnerable at certain points in their lives, and that vulnerability is relative and can fluctuate. Moreover, vulnerability is not an attribute solely related to age or disability. It was noted that certain factors can increase a person’s vulnerability (e.g. loneliness, bereavement, dependence on others for care, etc.) Some respondents thought that further work was needed to ensure equity and consistency of application of any new statutory aggravation – particularly as the definition of ‘vulnerability’ may be open to interpretation. They also noted that vulnerability can be caused or exacerbated by being under the influence of alcohol, illegal substances, or prescribed medication, and they suggested that further consideration would need to be given to the specific kinds of vulnerability to be covered by the statutory aggravation.
• There should be consistency in statutory definitions. Some respondents thought that the definitions used in the drafting the new statutory aggravation should reflect existing statutory definitions – for example, those used in the 2007 Act. This would allow legislation created to support and protect adults at risk of harm to be clearly linked to the criteria for prosecution of those perpetrating harm. However, this view was not unanimous, since there was also a suggestion that the ‘three-point criteria’ for defining an adult at risk used in the 2007 Act may not be entirely appropriate as it currently excludes some groups.^[13] Section 12 of the Children and Young Persons (Scotland) Act 1937 was also mentioned as possibly offering parallels with the type of conduct towards older people which should be subject to criminal sanctions.

13.14 Some respondents asked for further details on how this new statutory aggravation would operate and be proven, and also how it would interact with hate crime legislation. Some were concerned that it may be operationally difficult for the police to distinguish between an offence motivated by hate / prejudice, and one which is seeking to exploit a perceived vulnerability.

Other issues raised by those supporting a new vulnerability-related aggravation

13.15 Some respondents in this group called for:

• Further consideration to be given to the definition of ‘exploitation’ (as well as the definition of ‘vulnerability’ as discussed above)
• A review of the use of the term ‘vulnerability’ across Scottish legislation and policy documents to promote standardisation and consistency
• A separate, standalone offence on ‘elder abuse’, in preference to a new aggravation relating to the exploitation of vulnerability
• The introduction of jury direction in cases of elder abuse, as a means of making juries aware of the unique dynamics of this type of crime; it was noted that a similar approach is working well in sexual assault cases
• All crimes targeted at a person with a learning disability to attract a statutory aggravation – regardless of whether the motive was based on hostility to their disability or a desire to exploit their perceived vulnerability; any decision not to apply the aggravation should require to be based on evidence that the desire to exploit the victim’s vulnerability was not a factor
• Greater visibility of people with learning disabilities within the statutory aggravation model – it was noted that the only section of the consultation in which people with learning disabilities were given a specific focus was the section on exploitation and vulnerability; the lack of attention to this group in relation to aggravating factors in hate crime can reinforce a view of people with learning disabilities as intrinsically vulnerable, passive and in need of intervention
• Further consultation with people with learning disabilities in drafting any new statutory aggravation.

13.16 There were concerns voiced by some respondents that the introduction of a new statutory aggravation relating to vulnerability should not carry a lesser sentence than if the crime was prosecuted as a hate crime. Regarding the issue of sentencing, one organisation commented that guidelines produced by the Sentencing Council of England and Wales highlight the importance of sentences reflecting the seriousness of an offence, both in terms of culpability and harm caused.^[14] Offences which are seen to justify a more serious sentence would include: (i) deliberate targeting of vulnerable victim(s); (ii) abuse of power; and (iii) abuse of a position of trust. In addition, a factor indicating a serious degree of harm would relate to cases where the victim was particularly vulnerable. It was suggested that a similar approach to sentencing could be adopted in Scotland.

Opposition to a new vulnerability-related aggravation

13.17 Organisations answering ‘no’ to Question 28 (and some who did not answer the closed part of Question 28) made similar points to those discussed above about the complexity and difficulty of defining an offence in relation to a victim’s vulnerability. Those who answered ‘no’ saw these issues as reasons not to introduce this type of statutory aggravation. This group made several related points:

• Research carried out into the under-reporting and under-prosecution of disability hate crime in England found that the criminal justice system is ‘too quick’ to categorise disabled people as ‘vulnerable’. The effect of this is that it prevents disability hate crime from being fully recognised and perpetrators being appropriately punished.
• There is likely to be operational confusion between an aggravation by prejudice and an aggravation by vulnerability (as noted above). Furthermore, all the members of a particular group or all those with a protected characteristic may be incorrectly viewed by the police / prosecutors as inherently vulnerable and therefore, every crime against members of this group may be interpreted as involving exploitation of vulnerability. At the same time, the victim may not consider themselves to be vulnerable, and may believe that the offence was motivated by hostility towards their disability.
• If vulnerability is defined in terms of specific medical or physical conditions, it must be recognised that there are gradations in conditions, and some conditions (which could be seen as increasing an individual’s vulnerability) may not be formally diagnosed. There is a risk that criminal prosecutions would end up focusing unhelpfully on the victim’s disability, rather than the offence committed against them. Conceivably, the defence could challenge the credibility of the victim, or require the disclosure of personal sensitive information. Where abuse is not violent, but coercive (for example, in cases of forced labour, financial exploitation and some sexual crimes), there may be difficulty in proving that a person with a learning disability did not consent, or was not able to consent. All of these issues could result in discouraging victims from coming forward.
• Further detailed consideration is needed of how a vulnerability-related aggravation would relate to child protection legislation.
• There are a range of existing statutes which allow for the prosecution of individuals who exploit the vulnerability of their victim.^[15]

13.18 The main views expressed by individuals answering ‘no’ at Question 28 were that:

• The law should treat all people equally – there should not be additional sanctions for crimes against ‘protected groups’.
• There is no need for additional legislation in this area, since all victims of crime are to some extent vulnerable in the eyes of the perpetrator. This view was often also expressed as ‘current legislation is sufficient’ or ‘current law should be adequate’.

13.19 Less often, individuals commented that a vulnerability-related aggravation would be ‘unworkable’ and result in ‘legal arguments about vulnerability’. There were also suggestions that it could lead to people falsely claiming to be vulnerable when no such vulnerability exists.

Circumstances in which a vulnerability-related aggravation could apply (Q29)

13.20 Respondents answering ‘yes’ to Question 28 were asked to provide details of the circumstances that they thought should be covered by a new vulnerability-related statutory aggravation. Altogether, 163 respondents (36 organisations and 127 individuals) provided comments. (This includes 26 respondents who answered ‘unsure’ at Question 28.)

13.21 Respondents suggested that a new vulnerability-related statutory aggravation could apply to a wide range of circumstances. Some made very specific suggestions (e.g. ‘deliberately befriending a deafblind person who uses British Sign Language to steal their pension’). Others offered more general principles for defining such an offence. These included, for example, any crime committed against a person with a protected characteristic, where the protected characteristic was a factor in the crime – regardless of whether the perpetrator was motivated by hostility or an aim to exploit a perceived vulnerability. This would not apply to a victim chosen at random (for example, by a fraudster calling at every door), but only to those cases where the perpetrator knew (or presumed) that the victim had a protected characteristic. It could also apply in circumstances where, for example, a perpetrator threatened to reveal a protected characteristic to a third party (e.g. an individual’s mental health history to an employer) as part of an attempt to extort or defraud.

13.22 As mentioned above, some respondents also suggested that the victim of the offence should meet the same three-point criteria set out in Section 3 of the 2007 Act – where the victim is unable to safeguard their own wellbeing, property, rights or other interests (some respondents simply said, ‘where the victim lacks capacity’). The offence could include all types of harm, including physical harm, psychological harm, sexual harm, neglect, and conduct which involves the appropriation of (and which adversely affects) the property, rights or interests of the victim.

13.23 Respondents suggested that any of the following types of offences, perpetrated against a vulnerable person, should be subject to the new statutory aggravation:

• Financial harm / scamming / fraud (including doorstep crime, bogus callers, etc.), and financial exploitation (although it was noted that this can be difficult to prove, because often the victim has given the perpetrator permission to manage their financial affairs)
• Cuckooing (where an offender takes over the home of a vulnerable person to use as a base for cultivating, storing and / or selling drugs)
• Abuse or neglect (of a child or vulnerable adult) by carers or guardians, or by some other individual in a position of trust and / or power in relation to the victim
• Human trafficking
• Modern slavery
• Physical / emotional abuse
• Grooming of a vulnerable adult.

13.24 Others discussed offences against specific groups, for example: 

• Older people: financial abuse, from strangers and family members – including doorstep crime; violent crime, including robbery – in cases where an older person has been targeted for a violent crime because of their perceived vulnerability; abuse of an older person living in a care home setting
• People with learning disability or autism: financial exploitation – where an individual has been deceived into paying for a service that is never delivered; where a perpetrator has claimed to be a friend, or to represent an agency such as a local council, HMRC or a utility or telecoms provider; sexual exploitation – including situations in which an individual befriends a person and establishes a coercive or exploitative relationship; rape
• Women: crimes targeted at a woman who is alone at the time of the offence; being forced to work as a prostitute; crimes against women who are isolated, survivors of sexual violence, or those with mental health problems; rape of a woman who is known to have an alcohol or drug problem
• Children and young people: exploitation of a looked-after child; child sexual exploitation
• Other groups: ‘preying on’ people who are addicted to drugs or alcohol; exploiting a foreign national who may not understand English; assault of a homeless person.