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Offense of abuse of weakness: definition, constituent elements and evidence

Procap Detective Toulon
PROCAP DETECTIVE TOULON - Offense of abuse of weakness: definition, constituent elements and evidence

Intended to protect vulnerable people, the offense of abuse of weakness has seen a worrying increase in recent years due to the economic crisis and the aging of the population. The elderly are the designated victims. However, the crime of abuse of weakness does not only affect seniors, but any fragile person or person in a situation of notorious weakness, easy prey for scammers, manipulators and predators of all kinds. What does abuse of weakness consist of? What are its constituent elements? How to prove it? What distinguishes abuse of weakness from fraud and abuse of trust? Focus on an offense which, each year, results in more than 600 convictions by the courts. Definition of abuse of weakness and penalties incurred Abuse of weakness is defined as taking advantage of a particularly vulnerable person in the purpose of leading her to perform acts or refrain from performing acts potentially harmful to her. This offense is an offense punishable by article 223-15-2 of the Penal Code and punishable by three years of imprisonment and fines of 375,000 euros, accompanied by additional penalties depending on aggravating circumstances, for example in cases of mental control or maintenance in subjection via a group, particularly of a sectarian nature. The state of “vulnerability” is a central and determining element in this offense. Indeed, within the meaning of article 223-15-2 of the penal code, a vulnerable person is one whose capacity for discernment is likely to be impaired due to their age, their state of physical or mental health, or a situation of psychological or physical subjection. The provisions of the Penal Code designate certain categories of people as inherently vulnerable. This is the case for a minor, a sick, infirm or physically or mentally deficient person, in a state of pregnancy, or even a person in a state of psychological or physical subjection. Proof So that the offense of abuse of weakness is established, the proof must be based on four essential elements

  • Evidence of the state of a “particular vulnerability”

The victim must demonstrate their state of vulnerability by all means, in particular by testimony, medical advice, placement judgment (guardianship, curatorship). But be careful, an elderly person is not necessarily vulnerable simply because of their advanced age; other elements must be provided in order to prove the state of age-related vulnerability

  • Proof of criminal acts

Unlike fraud, the act itself of which is immediately illicit, abuse of weakness can in principle be based on a legal act, not necessarily requiring fraudulent maneuvers to be carried out. A criminal act can of course exist, such as mental control, subjection or manipulation. But the offense is not necessarily based on a fraudulent act. The abuse of weakness is intended to protect a person and not – directly – an asset. However, even if the act constituting the material element of the abuse of weakness is legal, proof must be provided: marriage contract, donation, transmission, invoice, insurance contract, etc.

  • Evidence of the intentional element

This involves providing proof that the alleged perpetrator of the abuse was aware of the victim's state of weakness. This element is sometimes very difficult to prove, and even more so when the state of vulnerability has no apparent character, but it can sometimes be presumed from the simple fact that it is impossible to ignore the state of weakness: this is particularly the case for a minor, a disabled person or a mentally ill person or even when the dispute involves members of the same family or relatives, in which case ignorance as to the state of weakness of the victim is difficult sustainable for the author.

  • Evidence of harm

The victim of abuse of weakness or their relatives must demonstrate the existence of harm. However, it is not necessary for this to have occurred during the victim's lifetime. For example, in cases of abuse of weakness against the background of inheritance, it is the close heirs who are harmed by the offense and not directly the victim themselves. Who can take legal action? In principle, it is the victim themselves who must take legal action. But this is rarely the case. In fact, most often it is third parties (lawyer, agent, close relatives) who denounce the facts. Victims of abuse of weakness are often unable to gauge the appropriateness of taking legal action. Either they are in a poor state of health (Alzheimer's, disability), or they are under mental influence or manipulation. It also happens that victims do not consider themselves as such or do not feel wronged by their executioners, to whom they grant trust, faith and love. Justice allows relatives of the victim who have personally suffered to initiate proceedings (criminal and civil) even after the death of the victim, particularly in the event of a finding of misappropriation of inheritance following questionable testamentary provisions. For example. Distinction between abuse of weakness, abuse of trust and fraud Abuse of weakness, abuse of trust and fraud are three distinct offenses, often confused because of the semantic and legal proximity that exists between them, although they do not relate to the same subject nor concern the same incriminations. Fraud is the act, either by the use of a false name or a false capacity, or by the abuse of a true capacity, or by the use of fraudulent maneuvers, of deceiving a natural person or moral and thus determine it, to its detriment or to the detriment of a third party, to hand over funds, values or any property, to provide a service or to consent to an act providing an obligation or discharge. The perpetrator of the fraud faces a sentence of 5 years and a fine of 375,000 euros. It is important to note that in the case of fraud, it is the act itself (or the maneuver) which is illegal or fraudulent, while the abuse of weakness can be the result of an entirely completely legal. As for the abuse of trust, defined in article 314-1 of the Penal Code, it is distinguished from the abuse of weakness by the necessary abusive misappropriation of property, funds or values, given precariously by the victim. The perpetrator then takes advantage of the trust the victim had placed in him to carry out the embezzlement. A contract must necessarily have been concluded between the perpetrator and the victim. Not returning a rented (or even loaned) item on time potentially constitutes a breach of trust because it is undermined by the failure to respect a contract (even tacit) between two people. Abuse of weakness is not intended to specifically protect a property right, but a person's vulnerability. Moreover, the three offenses do not belong to the same penal corpus: while breach of trust and fraud are considered attacks on property, abuse of weakness is an attack on the person. Finally, let us add that the three offenses, even if they are distinct, are not necessarily exclusive of one another, but can be combined: a person can simultaneously be the author of fraud, breach of trust and weakness. . Moreover, in fact, the perpetrators of abuse of weakness are also, in most cases, unrepentant crooks.


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