Elder Abuse

What is Elder Abuse?

Elder abuse is also referred to as senior abuse and California’s elderly abuse law is defined under Penal Code 368. It prohibits abusive behaviors directed at an individual(s) sixty-five years old or older. The following actions and behaviors illustrate what elderly abuse is:

Inflicting physical abuse; causing an elderly person unjustifiable physical pain or injury,

Inflicting emotional abuse; causing mental suffering to a senior through unjustifiably isolating or ridiculing them,

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 Neglect and/or elderly endangerment; purposely placing or permitting a senior or dependent adult to be in a situation that endangers their health or safety, and/or

Using an elderly person for financial exploitation; willfully engaging in fraudulent behavior by exploiting a senior’s finances.

California recognized the rise in cases of elder abuse over the years and have since increased the protections for the victims. Depending on the details of the case the defendant may have to face both criminal penalties and civil suits.

Who is covered under Penal Code 368 Elder Abuse?

Under this statute, California defines the elderly as people over the age of sixty-five (65) years old. Penal code 368 PC covers anyone over this age, regardless of whether the senior is mentally or physically disabled. Other people covered under this law are adult dependents between the ages of 18 years old and 64 years old. These are adults that depend on a caregiver or family member for their daily needs. Adult dependents are typically physically or mentally disabled and the state of California deems they are as equally vulnerable to abuse as children are.

Being accused of violating California’s elder abuse laws is very serious and can have a detrimental effect on the rest of your life. This is because there are increased protection standards for the elderly. In many cases, the defendant is a caregiver or family member of the alleged elderly victim. Aside from the lawful penalties, the consequences could include negative familial relations. As a caregiver, your future career options will become much more restricted. Regardless of the circumstances, retaining a skilled criminal defense attorney is highly recommended.

What does it mean to violate California’s elder abuse laws?

Here are some common situations that illustrate specific types of senior abuse in California:

  • A man intentionally withholds his grandmother’s medications;
  • A nurse physically abuses the elderly, senile patients;
  • A woman deliberately uses her senior uncle’s Social Security checks during his bouts of dementia;
  • The guardian of an adult dependent purposely abandons them at a park in the next town over;
  • A PCA worker sexually abuses their elderly clients; and
  • A nursing home attendant exploits the labor of senior citizen’s for personal profit.

Similar Offenses

 California domestic violence laws;

Committing acts of abuse, assault, battery, or criminal threats against someone that is a current or former spouse, fiancee, girl/boyfriend, roommate, parent of your kid(s), or child is considered domestic violence. You can be charged with domestic violence in conjunction with elder abuse if the alleged victim was discovered to have suffered from the abuse before they turned 65 years old.

California Penal Code 242 PC battery;

Under this statute, it is considered battery, often referred to as a simple battery, when one individual willfully and unlawfully uses physical force or violence on another person.

Associated/Related Offenses

California Penal Code 422 PC criminal threats;

This is defined as placing an individual in an imminent state of fear for their safety by threatening to attack, physically harm, or kill them.

California Penal Code 261 PC Rape;

The crime of rape consists of non-consensual intercourse using either force, fraud, or threats.  The victim may be conscious at the time, unconscious or not legally capable of consent.

 California Penal Code 401 PC aiding a suicide;

It’s illegal to deliberately aid/help another person commit suicide and/or provide encouragement for or to advise another individual to commit suicide.

What the Prosecution Does

The prosecution goes through several steps to properly investigate cases of elder abuse. They commonly use a special investigative team in these particular situations. These units handle the cases from beginning to end. This means a special deputy prosecutor goes through training that will enable them to handle the case as soon as charges are filed, throughout the trial period, and during sentencing.

These investigative units/agencies are typically notified by the police when cases of suspected elder abuse and/or adult dependent abuse are reported. It’s important to note these agencies have specific limitations to what they can investigate. For instance, some agencies can only pursue cases involving:

 

Suspected elderly abuse in nursing homes, senior residential communities, or treatment facilities,

Misdemeanor cases,

Felonious acts of senior abuse,

If a report comes from a certain jurisdiction, region, or district,

Financial elder abuse,

Sexual criminal activity, or

The exploitation of elderly or dependent adults for labor and/or profit.

 Most instances of suspected senior abuse are reported to police by the alleged victim’s family member, a close friend, a PCA, doctor, or from APS (Adult Protective Services). As soon as the agency is notified they begin the process of rejecting the charges, investigating the situation further, or filing charges right away.

What are the elements of the crime

In order for the prosecution to secure a conviction for Penal Code 368 elder abuse, they must first prove beyond a reasonable doubt that the elements of the crime took place. These elements are also referred to as the facts of the case and they are as follows:

  • The defendant willfully inflicted unjustifiable physical pain or mental suffering upon an elderly person, or he/she allowed someone to do so while having care or custody of the alleged victim, or willfully allowed the alleged victim to be placed in a situation where his health was endangered;
  • The alleged victim was elderly (65 years or older); and
  • The defendant knew or reasonably should have known that the alleged victim was an elderly person.

 Whether you face felony or misdemeanor elder abuse charges depend on the totality of the circumstances and the facts of the case.  If the defendant’s actions placed the alleged victim in a situation that endangered the elder’s safety, health, and/or life and there were no injuries, then the charges could possibly be filed as misdemeanor offenses.  If the defendant’s actions, however, caused an elderly person or dependent adult to be placed in circumstances that could have resulted in great bodily injury or death and there were significant injuries, then potential felony charges could be brought up in these specific situations. It depends on the facts and many other variables that the prosecutor will consider before making a filing decision on the case.

Who Can Be Charged?

The following situations illustrate who can be charged under Penal Code 368 elder abuse. Under this statute, the age of the alleged victim does not matter, as long as they are considered elderly or a dependent adult. The facts of the case make all the difference when filing misdemeanor and felony charges.

Examples:

 Sal was upset that his adult cousin, Frank, couldn’t take care of himself. As a court-appointed guardian, Sal thought the responsibility wouldn’t be difficult. After three weeks, Sal could no longer handle it. He dropped Frank off at a Toys R’ Us miles from where they lived, leaving him there without a wallet or identification. Sal could be charged with abuse under Penal Code 368 PC because he purposely abandoned his special needs adult cousin. As a court-appointed guardian, Sal is responsible for the health, safety, and well-being of his cousin. Abandonment is a form of criminal neglect and he could face harsh penalties if his cousin suffered any physical harm or great bodily injury.

Eddie was upset with his grandmother-in-law, Mary, because she chose to move in with his family instead of an assisted living home. In retaliation, he withheld her blood pressure medication in an effort to get her to choose the assisted living home. At Mary’s doctor's appointment, her blood pressure was dangerously high. Her doctors told her skipping medication days would result in an increased risk of suffering from a stroke or heart attack. She told the doctors what her grandson-in-law had done.

 It’s important to note that doctors, nurses, teachers, and other public servants are obligated to report any suspected child, elder, or domestic abuse to the proper authorities.  In this case, Eddie could be charged with elder abuse under Penal Code 368 and face felony charges if his grandmother-in-law suffered any lasting health issues. Without her medication, she would be prone to a stroke or a heart attack which, if not treated, would have led to her death.

What A Legal Defense Can Do

 

It’s not uncommon for innocent people to wrongfully face charges of elder abuse. Here are some common examples of the legal defenses used to fight charges for Penal Code 368 elder abuse.

Was it a false accusation or wrongful arrest?

 There are instances where the alleged victim lied about the abuse as an act of revenge. Peggy is a PCA (personal care assistant) and refused to give Sally her cigarettes. Sally is an elderly woman who should not be smoking because she’s on oxygen. The cigarettes were placed on top of the cupboards where Sally couldn’t reach them. Angry, she reported her PCA for elder abuse and neglect.

Peggy is not guilty of physical or emotional abuse of an elderly person. She is not guilty of criminal neglect just because she put the cigarettes up. Sally required an oxygen tank to assist her with breathing. Doctor’s told her that smoking or keeping an open flame around the tank could result in a fire. Peggy was following the guidelines of her job training by protecting the health and safety of her clients. She knew that any spark around a portable oxygen unit could result in an out of control fire.

Is there sufficient evidence?

 Abuse accusations do not require actual physical injury which means allegations can potentially be made without corroborating physical evidence. If a doctor or nurse even suspect abuse, they are required to report it as a mandatory reporter. The side-effects of some medications that elderly people take can make it easier to bruise or bleed. Taking such factors into account, it’s not difficult to understand how someone can be accused without sufficient evidence.

For example, let’s say that Jackie was reported for abusing her elderly aunt, who went to her last dialysis appointment with bruises on her arm. After a thorough investigation, there was zero evidence that Jackie actually abused her aunt. In fact, the bruises were a byproduct of the medications she needed to take.

 Was the injury accidental?

 If the defendant did not willfully intend to hurt or cause pain to an elderly person, they aren’t guilty of criminal abuse.  For example, Jason was chasing his little boy through a nursing home when he accidentally bumped into a resident. The elderly resident fell to the ground and fractured their wrist and hip. The incident did result in accidental injury, however, Jason’s actions weren’t intentional and he would not be held criminally liable under Penal Code 368 PC.

Punishments/Enhanced Penalties

Elder abuse is a “wobbler,” meaning it can be charged as either a misdemeanor or felony. If charged as a felony, it could count as a strike under California’s Three Strikes Law depending upon whether any additional sentencing enhancements are alleged. Under this law, any person who has been convicted of a felony act with a strike could face enhanced penalties with their second strike. The third strike on one’s record could lead to a life-long prison sentence. It’s paramount that you retain an effective legal defense team to improve your chances of avoiding the harshest penalties when facing an elder abuse case.

The consequences of being convicted of violating California’s Penal Code 368 elder abuse are:  

 If convicted as a misdemeanor;

  • Up to 1 year in county jail;
  • Summary (informal) probation;
  • Up to six thousand dollars in fines and up to ten thousand dollars for subsequent offenses;
  • Restitution to the victim;
  • Counseling

If convicted as a felony;

  • Imprisonment in state prison for 2, 3 or 4 years;
  • Potential Formal (felony) probation;
  • Up to ten thousand dollars in fines;
  • Restitution to the victim;
  • Counseling;
  • Fines up to ten thousand dollars

Sentencing Enhancements;

If the victim sustained any great bodily injury or death as a result of the abuse, an additional 3 to 7 years will be added to the sentence to be served consecutively. Furthermore, a strike could be placed on your record under California’s Three Strikes Law.

 Furthermore, Civil suits can be pursued by the alleged victims and anyone else that may have been affected by the defendant’s criminal activities.

Penalties for Similar/Related Offenses

California domestic violence laws;

It is important to note that having a domestic violence offense on your record can be extremely damaging. There are many instances where the prosecution will pursue jail time for the defendant.  Some counties set an automatic thirty day minimum jail sentence, even if the defendant was convicted of their first misdemeanor.

 The punishment depends on the specific type of domestic violence law that was violated, any injuries the alleged victim may have sustained, and the defendant’s criminal background history or lack thereof. These factors help decide whether the defendant should face a misdemeanor or felony conviction. In most cases, the judge can also require the defendant to enroll in a domestic abuse, batterer, or anger management program for up to one year.

California Penal Code 242 PC battery (simple battery);

  • Misdemeanor;
  • Up to 6 months in county jail;
  • Summary (informal) probation;
  • Fines up to two thousand dollars

California Penal Code 422 PC criminal threats;

Misdemeanor;

  • Up to 1 year in county jail;
  • Criminal Protective Order
  • Up to one thousand dollars in fines, and

Felony;

  • Up to 3 years in a California state prison;
  • Criminal Protective Order
  • Up to ten thousand dollars in fines, and

 Felony enhancements;

  • An additional one year added to your prison sentence if deadly/dangerous weapons were used, and
  • A possible strike on your record under California’s Three Strikes Law.

California Penal Code 261 PC Rape;

Felony;

  • 3, 5, or 8 years in a California state prison,
  • Up to ten thousand dollars in fines,
  • A strike under California’s Three Strikes Law, and/or
  • Life-long sex registration as a sex offender

Felony enhancements;

  • An additional 3 to 5 years, to be served consecutively in state prison.
  • In cases where the alleged victim sustained any great bodily injury, you face these penalties.

Furthermore, civil suits could be filed by the victim which carry separate consequences.  Increased fines may be included to cover any restitution or medical expenses that the alleged victim accrued as a result of your crime.

California Penal Code 401 PC aiding a suicide;

Felony:

  • 16 months, 2, or 3 years in a California state penitentiary. Formal (felony) probation; and/or
  • Fines up to ten thousand dollars.

We Can Help

Facing possible charges for any type of abuse or criminal negligence can be demoralizing and intimidating to face alone. If you or someone you know is facing charges for Penal Code 368 PC elder abuse, don’t hesitate to contact the Law Offices of Anna R. Yum.  As an award-winning criminal defense lawyer, you can expect an aggressive and effective fight for your rights.

 Attorney Yum has successfully defended clients facing low-level to high-level offenses. If you are located in San Diego, Orange County, or Los Angeles and would like a free consultation call 619-233-4433 or contact us online today.

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