Fraud against older adults - combative and preventive measures

https://doi.org/10.63189/PDLZ9142

In recent years, older people have increasingly become a source of easy income for criminals in Poland, both the "sophisticated" ones (using modern technologies to commit crimes) and the "ordinary" ones (using standard methods of conduct for the said purpose). Particularly popular in Poland are frauds belonging to a group of behaviours collectively referred to as so-called ‘grandparent fraud’. These crimes consist, to put it simply, of searching for an older person's data in the telephone book (the most popular are telephone numbers of people whose names suggest that they are in retirement age) and establishing telephone contact with them, during which they are convinced that the caller is a family member (of the titular grandparent) who urgently needs financial help. The injured party is convinced that it is necessary to quickly transfer the money to a third party (the family member who allegedly needs help has no way of collecting the funds), while the perpetrator goes to the victim's home address (or another indicated place) and collects the money from them, and then disappears without a trace. The perpetrators’  intention is of course to exploit the limited cognitive abilities of the older adults, e.g. due to dementia (see e.g. A. Rajtar-Zembaty, J. Rajtar-Zembaty, R. Epa, A. Starowicz-Filip, The relationship between cognitive functioning and functional capability in older adult, https://www.akademiamedycyny.pl/wp-content/uploads/2017/02/Geriatria-2016_2_02.pdf), intensified by stress, time pressure, concern for the closest ones and the desire to help them, through creating circumstances in the form of an alleged need to provide immediate help to a family member, as well as trust in people often present in people from previous generations.

The above-mentioned events entail, or at least may entail, various consequences for the aggrieved older adults, from financial to psychological. On the one hand, the obvious loss of cash, counted in thousands or even tens of thousands of zlotys, which in the case of the older adults may constitute the loss of all their savings (perhaps even means of living), and often also a debt, if, for example, the source of cash is a loan taken out from another natural or legal person (such as shadow banking). On the other hand, there are psychological reactions that are typical of crime victims in general, such as a sense of unreality, intrusive memories, anxiety, difficulties with concentrating, sleep problems, anger, fear, depression, etc. (see e.g. Subvenia Victima, I WAS VICTIM OF CRIME: CONSEQUENCES AND REACTIONS, https://www.infovictims.pl/en/i-was-victim-of-crime-consequences-and-reactions). As indicated in the literature: "In addition to the effects of victimization on role functioning, researchers postulate a link between crime and the victim’s report of life satisfaction and well-being. Studies examining these constructs typically focus on indicants such as fear of crime, concerns for personal safety, happiness, and satisfaction with overall quality of life" (R.F. Hanson, G.K. Sawyer, A.M. Begle, G.S. Hubel, The impact of crime victimization on quality of life, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2910433/).

The older adults can also easily become victims of secondary victimisation, or repeated harm, resulting from the negative attitude of third parties towards them, with whom they will have contact when they become aware of the fraud and notify the appropriate authorities. The family of the aggrieved party may hold a grudge against them, blame them for what happened, reproach them for their naivety, susceptibility to influence, perhaps stupidity or even suggest, in crude terms, brain disorders. Above all, however, the source of secondary victimisation may be, perhaps even unintentionally, the behaviour of law enforcement agencies, especially police officers, who may suggest, for example, that it will be difficult to detect the perpetrator in such a case, and at the same time indicate that since there is so much talk about such crimes on television and radio, appropriate caution should have been exercised. In addition, a potential lack of empathy during questioning, repeated questioning in the case, lack of patience towards the injured party and their need to tell everything that is directly or indirectly related (even if very loosely) to the case, or the need to repeat instructions, questions or information several times, may create a sense of lack of security (or even threat) for the victim, a sense of shame, uncertainty as to whether what happened is definitely the perpetrator's sole fault, and as to whether it was worth reporting the case to law enforcement agencies since nothing can be done about it anyway, and it exposes them to potential negative consequences, etc., and as a consequence - may lead to repeated harm to the older adults, this time by the system.

Such great social harm of the analysed behaviours and their direct or indirect consequences for the older adults suggests that they should be firmly and adequately counteracted. The only question is: how to do it? The simplest and cheapest solution comes to mind, of course, which is to introduce appropriate criminal law solutions. At the moment, according to the Polish Criminal Code, the behaviours referred to above can be qualified according to Article 286 § 1, which states that anyone who, intending to achieve a material benefit, causes another person to unfavourably dispose of his or her property, or the property of a third party, by misleading the person, or by taking advantage of a mistake or an inability to properly understand the action undertaken, is liable to imprisonment for between six months and eight years (similar regulations exist in most European countries). Article 286 of the Polish Criminal Code therefore provides for a prohibited act, the commission of which is not dependent on the age of the injured party; one can deceive both a 20-year-old and an 86-year-old, and in both cases it would considered the same prohibited act involving the same criminal penalty. The age of the injured party will be considered only in sentencing, because – according to the decision of the Polish legislator – the aggravating circumstances that the court must always consider include, among others, taking advantage of the helplessness, disability, illness or advanced age of the injured party. In connection with this state of affairs, there may be a desire to increase the penalty for fraud committed against an older adult person in order to show in an unambiguous, immediately striking way that taking advantage of the elderly age of the injured party is particularly reprehensible conduct and conduct that the state authorities and society are particularly keen to combat. One could propose, for example, introducing a new crime of fraud against an older adult person to the Polish Criminal Code, at the lower limit of the statutory penalty not of 6 months of imprisonment (as is currently the case), but of 2 years of imprisonment or more. Such a solution, appropriately presented in the media and combined with an appropriate social campaign, would not only be relatively cheap and quick, but could also lead to beneficial results in terms of – on the one hand – the social response to the fact that fraud against the older adults constitutes a real social problem, consisting in increasing concern for such people and vigilance against financial activities undertaken against such people by third parties; and, on the other hand, the response of law enforcement agencies to the fact of committing a crime of fraud against the older adults by making the circumstances of the injured party's possible "contribution" to the commission of the crime, e.g. due to their alleged gullibility or maladjustment to social conditions, not "mitigating" for the perpetrator, but a clearly incriminating, because it leads to assigning liability for a more severe type of crime.

The question should be asked, however, whether reaching for criminal law solutions, potentially ineffective if criminal liability turns out to be slow and uncertain, should be the main or even the only way for public authorities and society to act. Answering this question is not easy, due to the fact that no scientific research has been conducted to determine "what actually works", and not only "what may (but does not have to) work" (see e.g. M. Button, V. Karganiannopoulos, J. Lee, J. Bae Suh, J. Jung, Preventing fraud victimisation against older adults: Towards a holistic model for protection, https://www.sciencedirect.com/science/article/pii/S1756061624000247). Considering the fact that criminal law interference, although quick and cheap, is at the same time a reaction that interferes extremely drastically with human rights and freedoms and should therefore be used with exceptional caution, it is recommended to use, at least as an alternative, other, soft techniques of social influence, which primarily consists of preventive, i.e. protective, rather than retaliatory actions (criminal law is primarily retaliatory in nature). What are these soft techniques of influence? The following should certainly be emphasised: 1) training aimed at raising awareness among older people about the threats they face and ways to counteract them (training should be conducted in a way that is understandable and easy to implement in everyday life); 2) introducing free, safe and effective technological solutions, e.g. applications that would help effectively block messages sent via the telephone network and the Internet that could constitute a potential attempt at fraud (applications that block spam in telephone calls are already being used); 3) training for people who have contact with older people, e.g. bank employees, aimed at increasing their vigilance regarding potential threats, including financial threats, that the older adults face; 4) obliging financial institutions, especially banks, to be more vigilant in the area of financially significant transactions of older people, including e.g. creating a system for additional verification of financial transactions made by older people in the event that it is determined that these are unusual transactions for a given person; 5) social campaigns aimed at increasing the awareness of the entire society about the threats that the older adults face from the perspective of potential persons that commit frauds; 6) creating helplines within which it would be possible to obtain information about potential threats and how to proceed in the event of their actualisation, as well as to obtain assistance in the event of a fraud that has already taken place; and finally – taking action to provide older people, who are often lonely, with support from trusted third parties (see ibidem). As rightly pointed out in the literature: "individuals who are alone or lonely – given the risk this creates for fraud – should be encouraged and helped to participate in social events. They should also be encouraged to discuss concerns within their social networks related to scams and particularly any unusual approaches they may have received" (ibidem).

To briefly sum up the considerations above, it should be stated that counteracting fraud against the older adults is not only necessary but also possible. However, at the moment there are no studies confirming the effectiveness of individual counteracting techniques, therefore comprehensive actions should be taken, using various techniques and methods, in order to protect these individuals to the greatest extent possible.