Elder Abuse and Criminal Law

Every state has laws on the books making child abuse a crime up through the felony level, but what progress has been made in the area of criminal laws regarding elder abuse.

What actually is elder abuse?

• Physical: Direct beatings, lack of medical care or overmedication, sexual exploitation
• Abandonment: Desertion by anyone having responsibility for care
• Isolation: Preventing an elderly person from receiving mail, telephone calls, visitors
• Financial: Theft, misuse of funds or property, extortion, duress, fraud
• Neglect: Denial of food, clothing, shelter, health care
• Self-neglect: Malnutrition, being unkempt, unmet medical needs, unpaid bills
• Mental suffering: Verbal assaults, threats, fear

State Criminal Laws on Elder Abuse

California appears to be the leader in this area of criminalization with Penal Code § 368 enacted in 2008. The first section states that the State is giving crimes against elders the "special consideration and protection" that has previously been given to minor child victims of violent crime. This statute also defines and has penalties against perpetrators of financial crimes against the elderly which are often the most prevalent form of elder abuse.

Other states are fast catching up and many more have laws on their books creating a specific penalty in violent crimes regarding persons over 65 years of age as they have had previously for victims under age 10 or 11. Utah in §76-5-111 of their Criminal Code defines elder abuse and then sets out criminal penalties which can be from a Class A misdemeanor up to a second degree felony.

New York recently used their 2008 amendment to Penal Code §120.05 (12) in the prosecution and subsequent conviction of a woman who punched a Wal-Mart greeter in the face on Christmas Eve 2011 when the greeter asked to look into her shopping bags in Batavia, NY. This addition to the second degree assault statute states that a person is guilty "with intent to cause physical injury to a person who is sixty-five years of age or older, he or she causes such injury to such person and the actor is more than ten younger than such person". In this case the victim was 70 years old and was knocked approximately 10 feet by the punch and suffered facial fractures. The defendant could be looking at a 7 year prison sentence due to the 2008 amendment to the statute. Would the woman charged in NY not have hit the Wal-Mart employee if aware of the extra penalty added by the employee's age? No probably not.

However, these higher penalties and stricter laws may well protect an elderly person from their caregivers at home, in a nursing home/assisted living or from their own families. Sadly, these "trusted" people are statistically the most frequent abusers. An example of a case where a caregiver was charged is that of a 93-year-old veteran of World War II in California, who was found unkempt and suffering from dementia and had to be admitted to a nearby veteran's hospital. His home health aide was charged with four counts of felony elder abuse, theft, forgery and false imprisonment. She had allegedly stolen approximately $9,000 from her patient and apparently was not caring for him. The higher penalties in violent crimes against elderly people can also give prosecutors additional clout when charging and moving on these cases.

On November 2, 2012, a nurse entered a plea of no contest to felony elder abuse in a lengthy case resulting from an incident in a nursing home in Placerville, CA. She has also agreed to help prosecutors with the criminal case against her supervisor. This case which involved the death of a 77-year-old woman due to "shoddy care" has spurred the California's attorney general's office to "ramp up" their investigations into the crime of elder abuse. The patient's husband did win a settlement in civil court against the nursing home, but before his death he stated that he always felt her death was a "criminal matter".

The important fact here is that elder abuse is hopefully getting the attention from legislators and prosecutors that it deserves and finally the abusers are and will be going to prison for this abuse. These cases are so often kept "within the family" in a way that theft and lack of care is not brought to the State's attention until the elderly person is very seriously ill. There have been cases where children of elders have been living on their parent's social security and so therefore did not want to get help for their parent as nursing home care would take away that income and direct it actually to the patient's care. In Rhode Island, attorneys have been appointed as guardians of elderly persons in this situation so that they can receive the care they need.

Sources: California Penal Code, Section 358 New York Penal Code, §120.05(12) Batavia woman indicted under new state law targeting elder abuse, http://www.whec.com/news/stories/s2558072.shtml?cat=565 Elder Abuse Laws in Utah by Mary Jane Ciccarello, www.utahbar.org. Veteran's Caretaker Pleads Not Guilty to Elder Abuse, Los Angeles Times, January 28, 2011. Nurse enters plea in elder abuse case, says 'my heart aches', Sacramento Bee, November 2, 2012. California attorney general's office to ramp up elder-abuse investigations, Sacramento Bee, November 3, 2012