You’ve seen it many times in movies—the mugger targets the old lady, who proceeds to beat him with the purse he is trying to steal. Except, in real life, the old lady doesn’t usually fare so well. Enter the vulnerable victim.
When victims are particularly vulnerable, defendants often receive harsher sentences, as courts want to discourage offenders from preying on the easiest targets.
Every state has sentencing guidelines that define aggravating circumstances, which are factors that increase punishment. An aggravating circumstance can be any fact surrounding the crime or defendant that prompts the judge to intensify the sentence. Victim vulnerability is a common factor that judges use to impose harsher punishment.
It can be hard to predict whether a judge will determine a victim to be vulnerable in order to lengthen a sentence. Whether a victim is vulnerable depends on the crime charged and the specifics facts of the case. A characteristic like small physical stature may lead to a stiffer sentence when robbery is the crime, but would be irrelevant if the offense were identity theft.
Courts have set limits on what circumstances lead to victim vulnerability. A victim being unarmed or not expecting an assault, for instance, doesn’t often make him or her vulnerable in sentencing terms.
What Makes a Victim Vulnerable?
Courts throughout the country have considered whether a wide range of characteristics make victims vulnerable. Among the factors that courts have considered in determining whether victims are vulnerable are the following. Keep in mind that whether and how a factor applies depends on the specific facts of a given case.
Age. The advanced age or tender years of a victim can trigger the victim-vulnerability aggravating circumstance—for example, committing mail fraud on a senior citizen or physically abusing a young person. However, courts have not found age to be an aggravating factor when it is already accounted for in the crime charged. For example, offenses like elder abuse and sexual abuse of a child include age in their definitions.
Gender. Some courts have found that a victim’s gender can mean enhanced vulnerability. In one case involving defendants kidnapping a small woman, the court found that gender and size played into the defendants’ selection of their victim; the court therefore increased the sentence. (People v. Chacon, 37 Cal.App.4th 52 (1995).) But in other cases, courts have dismissed gender as an aggravating factor due to the fact that it is implicitly accounted for in the charged crime. For example, gender would be an inappropriate aggravating circumstance for sexual assault since the overwhelming majority of incidents of that crime involve female victims.
Size. When crimes of force or violence are at issue, victims who are particularly small may qualify as vulnerable.
Physical condition. Courts have found physical conditions and illnesses such as pregnancy, muscular dystrophy, emphysema, and deafness to support findings of victim vulnerability. But not every health condition merits a vulnerable-victim designation. Courts have rejected menstruation, certain birth defects, and cancer as warranting more severe penalties. Some courts—but not others—have considered injuries inflicted by the defendant to render a victim vulnerable for sentencing purposes.
Mental condition. Courts will sometimes use a developmental disability or mental deficiency of the victim to impose a harsher sentence. In one case, the judge found the assault and abuse of a mentally disabled man to be a vicious crime, and increased the punishment accordingly. (State v. Hortman, 207 Neb. 393 (1980).) However, in other situations, particularly sexual assault cases, courts have said that evidence of a victim’s low IQ on its own doesn’t call for a departure from the normal sentencing range.
Temporary state. Courts have found vulnerability when victims are:
- intoxicated, or
- in any other temporary situation making them less able to defend themselves.
Relationship with defendant. The defendant being in position of trust or authority with the victim, as a babysitter is with a child and a teacher is with a student, often results in an enhanced sentence. Courts have also found victims to be vulnerable when:
- the defendant was a family member
- the defendant was previously married to the victim, and
- there was a pattern of abuse and reconciliation between the defendant and victim.
Location and status of victim. A victim who is far from home or family, or who doesn’t speak English, can qualify as vulnerable. Courts have also increased punishment when victims are hospitalized, isolated in defendants’ homes, or stranded roadside.