Elder abuse, as a criminal offense, is taken very seriously by the Pasadena Law Enforcement Department. If you have been accused of elder abuse, it would be best to consult a highly experienced defense attorney who will help you win your case.
This article will talk about the meaning of elder abuse, what the prosecutor needs to prove to secure a conviction, the penalties, the various defenses, and related offenses. If you still have more questions about this offense after reading this article, we invite you to contact us at the Pasadena Criminal Attorney for a free consultation.
A Brief Overview of Elder Abuse
Elder abuse is emerging as an increasingly common crime. This could be attributed to the fact that elders are a vulnerable population. The risk is even higher for elders who have a disability or suffer from terminal illnesses such as dementia.
Studies undertaken by the National Center on Elder Abuse revealed that a whopping 6 million elder abuse cases are reported in the United States each year. Out of this, California accounts for 11% of the cases.
Elder abuse takes many forms ranging from verbal, emotional, financial, sexual to physical abuse. Elder abuse can lead to serious physical injuries and long-term psychological consequences, and even significant financial loss.
The unfortunate bit is that elder abuse crimes mostly end up unreported. Research shows that only 1 in 14 cases of elder abuse are reported. This could be because victims may be powerless, embarrassed, or even fearful. In some instances, the family and friends of the victims may be oblivious of the signs of elder abuse and end up failing to notice the same.
On the flip side, many people have been falsely accused and even convicted for elder abuse. In most cases, jealous or malicious family members or friends fabricate lies in a bid to tarnish the name of an innocent defender.
What is Elder Abuse?
The crime of elder abuse is defined under California Penal Code Section 368 PC. The provision starts by acknowledging that any elder deserves special consideration and attention. In that context, an elder is a person who is 65 years or older.
In California, elder abuse is regarded as a 'wobbler offense,' meaning it is charged as a misdemeanor or a felony.
Elder abuse occurs when a person willfully causes or permits an elder to suffer or inflicts unjustifiable pain or suffering on the elder. This pain or suffering may or may not result in bodily harm or death. Elderly abuse also includes financial abuse. In this case, the defendant commits theft, embezzlement, fraud, or forgery concerning the elder's identity or property.
A caretaker of an elder can also commit the crime of elder abuse when they willfully cause or allow the elder to be injured or placed in a situation that compromises their health. The word caretaker in this context denotes a person who has care, custody, or control of an elder. It also includes one who stands in a position of trust with an elder.
What Does the Prosecutor Need to Prove?
Generally, for you to be convicted for elder abuse, the prosecution must prove that first, you were aware or had reasonable belief that the victim is an elder, and secondly, you committed the crime willfully. It is critical to note that the standard of proof depends on the particular provision of 368 PC that you have been charged under, as explained below:
Penal Code 368 b (1) (2) and 3: Elder Abuse in a Manner Likely to Result in Great Bodily Harm or Death
Elder abuse under this provision could either be a misdemeanor or a felony. To get a conviction, a prosecutor will need to prove the following factors:
- Reasonable belief that the victim is an elder
- Intentional act by the defendant
- Defendant's action was likely to result in bodily harm or death of the victim
- Caretaker defendant willfully caused or permitted the elder to suffer unjustifiable pain.
These factors have been explained in detail below:
Reasonable Belief of the Elder’s Age
It is upon the prosecutor to prove beyond reasonable doubt that you had the knowledge or probable cause that the victim is an elder. If the prosecutor fails to prove this, a conviction under this section would be impossible.
Intentional Act
There should be evidence that you did the crime willfully. If the evidence suggests otherwise, then a successful conviction will not be possible. An intentional act should not involve coercion or provocation by the victim or any other person.
Defendant’s Actions Likely to Result in Bodily Harm or Death
The prosecutor should also establish that you performed the act in a manner likely to result in great bodily harm or death of the victim. Under this section, if there is no proof of actual bodily harm or death, then you cannot be held liable for elder abuse charges.
Caretaker Defendant
Suppose you, as the caretaker of the elder, is charged under this section. In that case, the prosecutor must prove that you caused or permitted the elder to suffer unjustifiable physical pain or mental suffering out of your own will. Additionally, a prosecutor can secure a successful conviction against you by proving that you willfully caused or allowed the elder to be in conditions harmful to their health.
Penal Code 368 c: Elder Abuse that is not Likely to Result in Great Bodily Harm or Death
You will be charged under PC 368c as a misdemeanor.
To be convicted under this section, a prosecutor must prove the following:
- Reasonable belief of the victim’s age
- Voluntary act
- Defendant caused or permitted justifiable pain on the elder.
- No necessity of bodily harm or death
- Caretaker defendant willfully permits or causes pain on the elder
The above ingredients have been discussed in depth as follows:
Reasonable Belief of the Victim’s Age
The prosecutor should prove that you knew or believed that the victim is 65 years or older. As mentioned earlier, an elder under 368 PC is a person who is 65 years or older.
Voluntary Act
The crime should be willful. There should be no loopholes as to whether the defendant was coerced or left with no choice but to commit the crime.
Defendant Caused or Permitted Unjustifiable Pain on the Elder
The prosecutor must establish that your actions caused pain or permitted the elder to suffer unjustifiable pain. More precisely, there should be a specific link between the defendant's actions and the pain suffered by the victim. Unjustifiable pain refers to pain that is extreme in the circumstances.
No Necessity of Great Bodily Harm or Death
It is not a must to have committed the elder abuse in a manner likely to result in great bodily harm or death of the victim. This implies that if it is proved that the victim suffered even the slightest harm under this section, then the prosecutor can secure a conviction.
Caretaker Defendant
The prosecution should establish that you willfully allowed the adult to be injured where you are the caretaker. You can also be convicted under Penal Code 368 c if there is credible evidence that you placed or allowed the elder to be in a situation that puts their health at risk.
Penal Code 368 d: Elder Financial Abuse by Non-Caretakers
Under Penal Code 368d, elder abuse can is chargeable as a misdemeanor or a felony.
The ingredients are as follows:
- Knowledge of victim’s age
- The defendant is a non-caretaker
- The defendant committed theft, embezzlement, forgery, or fraud
Knowledge of the Victim’s Age
It is upon the prosecution to prove that you had the knowledge or justified belief that the victim was an elder at the time of the crime.
Non-Caretaker
The defendant should not be a caretaker of the elder. The defendant could be a neighbor, friend, or family of the defendant. It may also be that the defendant is a total stranger to the elder.
Theft, Embezzlement, Forgery, or Fraud
The prosecutor must show that the crime committed involves theft, embezzlement, or forgery. The theft should relate to the personal identifying information or property of the elder.
Penal Code 368 e: Elder Financial Abuse by Caretakers
Elder abuse under this section is a misdemeanor. The main element that the prosecutor must prove is caretaker involvement, as explained further below:
Caretaker Involvement
The prosecution should establish that the elder was under your control or care when you committed the crime.
The actions should involve either fraud, theft, forgery, embezzlement, or identity theft relating to the elder's property or personal identifying information.
Penalties for Elder Abuse
The Penalties for elder abuse depend on the specific provision of the California Penal Code that you've been charged with, as follows.
Penal Code 368 b (1) (2) and 3: Elder Abuse in a Manner Likely to Result in Great Bodily Harm or Death
When charged under this provision, you may be found guilty of either a misdemeanor or a felony.
The penalty for misdemeanor 368b elder abuse is a county jail term of up to one year or a fine of $6,000. On the other hand, the punishment for felony elder abuse is a state prison term of two, three, or four years.
If the victim suffered great bodily harm, you might be sentenced to an additional term in state prison: three years if the victim is below 70 years and seven years if the victim is 70 years or older. Likewise, If the abuse resulted in the victim's death, you may get an additional term of five years in state prison if the victim is below the age of 70 and seven years if the victim is 70 years or older.
However, you cannot receive an additional term of imprisonment if you are convicted for a single offense under both paragraphs 2 and 3 of 368 PC. Moreover, you cannot receive an additional term of imprisonment if convicted under both sections 12022.7 and 2 and 3 of 368 CPC.
Penal Code 368 c: Elder Abuse that is not Likely to Result in Great Bodily Harm or Death
As mentioned earlier, PC 368c is a misdemeanor. Its penalty is six months of county jail or a $1,000 fine.
Penal Code 368 d: Elder Financial Abuse by Non-Caretakers
Under this provision, the penalty is dependent on the value of the property involved.
When the amount of property is $ 950 or less, the offense is a misdemeanor which attracts one year in county jail and/or a $1,000 fine.
When the amount or value of the property exceeds $950, you may face elder abuse charges as either a misdemeanor or a felony. A misdemeanor conviction attracts one year in county jail or a $2,500 fine. On the other hand, a felony conviction attracts two, three, or four years in state prison or a $ 10,000 fine.
Penal Code 368 e: Elder Financial Abuse by Caretakers
When the amount of property is $ 950 or less, the offense is a misdemeanor which attracts a one year in county jail and/or a $1,000 fine.
When the property's value exceeds $950, you may be charged with elder abuse as either a misdemeanor or a felony. A misdemeanor conviction attracts a one year in county jail or a $2,500 fine, whereas a felony conviction attracts two, three, or four years in state prison or a $ 10,000 fine.
Other Penalties
Apart from imprisonment and fines, the court may also sentence you to probation or even issue you with a restraining order against the victim. These alternative or additional penalties have been explained below:
Probation
The court may require a person convicted of 368 PC to receive appropriate counseling as a condition for probation. The defendant shall pay the expenses of the counseling program as the court will determine. The court considers the ability of the defendant to pay. As such, a defendant who is unable to pay for counseling can still be committed to probation.
Restraining Order
When a defendant is convicted for violating the crimes under 368 CPC, the court may issue a restraining order against the victim. The restraining order may be issued regardless of whether the defendant is placed in county jail, state prison, or released on probation.
The court determines the period of the restraining order, which may be up to 10 years.The court bases its decision on the length of the restraining orders on several factors. Such factors include the likelihood of future violations, the gravity of the offense, and the safety of the victim and their immediate family.
What are the Factors that the Court Considers When Convicting for Elder Abuse?
Penalty choice for elder abuse crimes is dependent on several factors. These include:
- Existence of aggravating factors
- Past convictions
- Nature of abuse
- Mitigating circumstances
These factors are explained as follows:
Existence of Aggravating Factors
Where aggravating factors exist, the defendant will be slapped with a harsher sentence. Aggravating circumstances can include:
Age: if the victim is of more advanced age, a heavier penalty will be meted on the defendant. For instance, if the elder abuse is proved and the victim is 65 years old, the defendant may get a lenient sentence compared to the defendant in a case where the victim is 90 years.
Vulnerability level of the elder: If the elder were utterly vulnerable, such as a disabled or terminally ill elder, the defendant would get a severe sentence, unlike when the victim is healthy.
Past Convictions
Like in other criminal convictions, a defendant in an elder abuse case will get a severe penalty if the prosecution proves that they have committed previous offenses. This suggests that a first-time offender might get probation while a repeat offender may get a more severe punishment such as a longer imprisonment term.
Nature of Abuse
Elder abuse takes many forms. When sentencing a defendant, a court considers the severity of the crime. Elder abuse that results in serious bodily harm or death will attract harsher penalties than crimes related to property.
Mitigating Circumstances
When the defendant demonstrates sufficient mitigating factors, the court can be a little bit lenient in their sentencing. Mitigating factors could include that the defendant has shown good conduct since their arrest, the offender played a minor role in the offense, or they showed remorse in court.
Common Defenses
As an innocent defendant, you should not bear the brunt of false accusations. Therefore, it is essential to develop a sound defense strategy that will lead to your acquittal. An experienced defense attorney will help you weigh your options by considering the elements of the case then formulating a solid defense strategy.
Self-Defense
It goes without saying that one is not criminally liable when acting in self-defense.This defense can be helpful, especially in circumstances where the elder is known to get aggressive or violent. It even gets more beneficial where there are actual medical records of the elder's violent tendencies.
To succeed, the defendant should demonstrate that the circumstances were reasonable and that the defendant was at risk of bodily harm and thus used immediate force to prevent the harm. However, it is vital to show that the force used is not excessive compared to the threat faced. For example, one cannot claim to have shot an elder in self-defense when the elder slapped them.
No Evidence of abuse
Irrefutable evidence proving the alleged abuse must be adduced to secure a conviction. You need to prove that while the victim is alleging they have been abused, there is no evidence of the form of elder abuse that they allege. This includes financial abuse, emotional abuse, physical abuse, or neglect.
To succeed in this defense, the evidence of medical personnel or an elder expert might be helpful, primarily when the elder is alleging physical or emotional abuse. These experts can disprove the case on the basis that the injuries are a result of the aging process and not intentional acts.
Mistaken Accusation
Here, the defendant asserts that the charges leveled against them are untrue. The accusations could be the fabrications of malicious people who are hell-bent on damaging the defendant’s image.
The Act Was not Deliberate
As explained above, willfulness is an essential ingredient for a defendant to be convicted for elder abuse.
When used as a defense, you need to demonstrate that your actions were not a result of free will. A classic example will be admitting that there was harm, but the harm is accidental.
Unaware that Victim Was an Elder
A prosecutor needs to prove that the defendant was aware that the victim was an elder to secure a successful conviction. As mentioned earlier, an elder under 368 PC is someone who is 65 years or older.
A defendant may claim they presumed the victim was not 65 years or older, mainly if their appearance portrays a much younger person. If a defendant proves this successfully, then the prosecution cannot sustain elder abuse charges against them.
The Victim was Below 65 Years
Although very rare, there could be a chance that the victim is under 65 years. If there is a reasonable belief that the elder may be relatively younger than 65, the defendant can use this fact as a defense.
Related Offenses
Elder abuse is related to a myriad of other California criminal offenses. You may have been charged with one or more of these crimes besides elder abuse. Feel free to book a free consultancy with a Pasadena criminal attorney who will advise you on how best to deal with the charges.
These related offenses include:
- Petty Theft– California Penal Code Section 484 PC
- Grand Theft– California Penal Code Section 487 PC
- Criminal Threats-California Penal Code Section 503 PC
- Battery- California Penal Code Section 242 PC
- Embezzlement– California Penal Code Section 503 PC
- Rape- California Penal Code Penal Code 261 PC
- Domestic Violence- California Penal Code 273.5 PCDomestic battery-California Penal Code PC 243 (e) (1)
- Lewd or Lascivious Acts- California Penal Code PC 288 (2)
- Long-Term Health Care Facility Violations- Health & Safety Code & 1290 (c)
- Mandated Reporters of Abuse- Welfare & Institutions Code 15630
Find a Pasadena Criminal Attorney Near Me
If you or your loved ones have been charged with elder abuse, it is crucial to source the services of an expert elder abuse attorney. Call us today at 626-689-2277 and book your free consultation with our experts who have successfully defended elder abuse allegations.
