Women experiencing homelessness are at an increased risk of becoming victims of sexual violence.[1] Such women are particularly vulnerable to multiple forms of interpersonal victimization, including sexual violence at the hands of acquaintances, strangers, sex traffickers, and intimate partners while on the street, in dangerous housing situations, or in shelters.[2] Many factors increase homeless women’s risk of sexual victimization, including substance abuse, childhood abuse, length of time spent homeless, engaging in economic survival strategies, location while homeless, mental illness, and physical limitations.[3] Although childhood sexual abuse and intimate partner violence often precede, and may contribute to, women’s homelessness and risk of revictimization, the condition of homelessness itself dramatically increases women’s risk of becoming the victim of sexual violence.[4] Many homeless women have no choice but to partake in economic survival strategies, such as engaging in sex work,[5] that place them at a greater risk of sexual assault.[6] Wenzel, Koegel, and Gelberg found that homeless women who panhandled or traded sex for drugs or money were three times more likely to be the victim of sexual assault and other forms of violence compared to their homeless peers who did not engage in sex trade.[7] Because these assaults may occur in the context of illegal actions, victims are often seen as attractive targets to perpetrators and thus less likely to report the violence or to be believed by authorities.[8]

Homeless women experiencing serious mental illnesses are highly vulnerable to sexual violence. One study found that ninety-seven percent of the participants, all of whom were homeless and suffering from a mental illness, reported experiences of violent victimization at some point in their lives, with twenty-eight percent reporting at least one sexual or physical assault in the month proceeding the interview.[9] These women face the burden of at least three forms of social stigma—against poor or homeless women, people with mental illnesses, and victims of sexual violence.[10]

The prevalence of sexual violence against women experiencing homelessness suggests that the existing prosecutorial framework is inadequate and should be changed. To address this issue, Congress and state legislatures should emphasize or articulate homelessness as a vulnerability factor in vulnerable victim sentencing guidelines. The current federal vulnerable victim sentencing guideline provides that “[i]f the defendant knew or should have known that a victim of the offense was a vulnerable victim, increase [the punishment] by two levels.”[11] “Vulnerable victim” is defined as a victim “who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct.”[12] While state law provisions enumerate specific characteristics that make a victim vulnerable, thus limiting protection to those groups, the federal standard provides a catchall phrase granting protection to anyone “who is otherwise particularly susceptible to . . . criminal conduct.”[13]

When imposing harsher sentences based on vulnerable victim sentencing guidelines, courts should emphasize the extent to which the victim could defend herself from the crime.[14] Thus, the vulnerable victim sentencing enhancement would not automatically apply simply because the victim is homeless.[15] However, in most, if not all, cases, women experiencing homelessness are particularly vulnerable because of their inability to protect themselves from sexual violence.[16] Courts should focus on situations where defendants target victims either because they think that law enforcement would not take the crime seriously or that the victim would not report the crime.[17]

Applying vulnerable victim sentencing enhancements to women experiencing homelessness is consistent with the underlying purpose of the enhancement: to protect those who are in dire need of protection from society.[18] Women experiencing homelessness are often targeted because the attacker thinks that the woman will not report the crime or that law enforcement will not take the crime seriously.[19] Each of these justifications can be applied on a case-by-case basis, which is the manner in which courts currently apply the sentencing enhancement.[20]

Certain court cases involving the federal vulnerable victim sentencing guidelines serve as a guide for courts applying sentence enhancement against defendants who commit acts of sexual violence against women experiencing homelessness. In United States v. Julian, the Seventh Circuit held that the victim’s homeless status was a valid factor in deciding whether to apply the vulnerable victim sentencing enhancement. The defendant was convicted of aiding and abetting the transportation of a minor in foreign commerce with intent to engage the minor in prostitution.[21] The victim’s homelessness was the only deciding factor in the application of the vulnerable victim sentencing enhancement because the defendant also received a distinct and separate sentencing enhancement based upon the age of the victim.[22]

In conclusion, women experiencing homelessness are at a heightened risk of becoming victims of sexual violence. In addition to the condition of homelessness itself, other factors such as “risky behavior” (sex work, substance abuse, etc.) or suffering from a mental illness can further increase the vulnerability of women experiencing homelessness. To address this situation, dramatic change must occur in order to more effectively prosecute acts of sexual violence committed against women experiencing homelessness. The federal legislature ought to amend existing laws to better protect women experiencing homelessness through specifically articulating/emphasizing homelessness as a vulnerability factor in vulnerable victim sentencing guidelines.

 

[1] Lisa A. Goodman et. al., No Safe Place: Sexual Assault in the Lives of Homeless Women, Nat’l Online Res. Ctr. Violence Against Women 1, 1 (2006).

[2] Id. at 1.

[3] Id. at 3.

[4] Id. at 5.

[5] Rochelle L. Dalla et al., “You Just Give Them What They Want and Pray They Don’t Kill You”: Street-Level Sex Workers’ Reports of Victimization, Personal Resources, and Coping Strategies, 9 Violence Against Women 1367, 1367 (2003).

[6] Id. at 5.

[7] S.L. Wenzel et al., Antecedents of Physical and Sexual Victimization Among Homeless Women: A Comparison to Homeless Men, 28 Am. J. Cmty. Psych. 367, 377 (2000).

[8] Goodman et. al., supra note 1, at 5.

[9] Lisa A. Goodman et al., Episodically Homeless Women with Serious Mental Illness: Prevalence of Physical and Sexual Assault, 65 Am. J. Orthopsych., 468, 468 (1995).

[10] Goodman et. al., supra note 1, at 6.

[11] U.S. Sent’g Guidelines Manual § 3A1.1 (U.S. Sent’g Comm’n 2021).

[12] U.S. Sent’g Guidelines Manual § 3A1.1 n.2 (U.S. Sent’g Comm’n 2021).

[13] U.S. Sent’g Guidelines Manual § 3A1.1 (U.S. Sent’g Comm’n 2021).

[14] Katherine B. O’Keefe, Protecting the Homeless Under Vulnerable Victim Sentencing Guidelines: An Alternative to Inclusion in Hate Crime Laws, Wm. & Mary L. Rev. 301, 314 (2012).

[15] Id. at 319.

[16] Id. at 319.

[17] Id. at 319.

[18] Id. at 320.

[19] Id. at 320.

[20] Id. at 320.

[21] United States v. Julian, 427 F.3d 471, 478 (7th Cir. 2005).

[22] Id. at 489–90.