An elder, according to the state of California, is any person that is 65 years old or over. The law protects the rights of elders under PEN 368. Most elders depend on others to care for them, and caregivers have been reported to abuse or take advantage of elders. The harm, in this case, can be both physical and psychological and in some cases, financial as well. If you are accused of violating the rights of an elderly, the penalties can be very severe, and getting in touch with a criminal defense attorney will help with your defense. Call us at Orange County Criminal Defense Attorney Law Firm. Our team of qualified criminal defense attorneys will help you fight the allegations to a favorable conclusion.
An Overview of Elder Abuse Laws PEN 368
Elder abuse is on the increase according to reports, and it affects various individuals from diverse ethnic and economic backgrounds. The reports further indicate that one in every seven elderly persons is a victim of elder abuse.
As the population grows and more people enter the elderly age bracket, more accusations are reported with some being true and others falsified. Most of the individuals that find themselves accused of this crime are primary caregivers or family members to the senior adult.
Under the legal statute, elder abuse involves:
- Physical abuse - The abuse consists of causing bodily injuries, neglect of care, sexual abuse, abduction, or abandonment.
- Economic abuse - This is usually committed through theft or fraud.
- Any deed that will result in mental or physical pain and or suffering is also abuse.
Physical abuse involves many elements, such as hitting the elderly, endangerment, neglect, rape, among others. Because some older adults are entirely dependent on their families or caregivers, they can be subjected to physical torture.
Financial Elder Abuse
While other abuse can seem straightforward, financial elder abuse is common. It involves embezzlement or theft of money or property from the elderly. This crime is prosecuted under PEN 368 (d) and PEN 368 (e).
If an older adult trusts you with their property and finances and you mismanage the said property, you can be prosecuted for the offense. Some of the things that may lead to prosecution include:
- Failing to pay their bills when you have been mandated to do so
- Failing to purchase their necessities such as food, clothing or medication
- By use of fraud, you withdraw money from their accounts without their authorization for your personal use
- Making unauthorized changes to the elder’s will to your favor
Why Elders are Given More Protection in Law
The California Legislature first discussed the issue of elder abuse in 1980. In1982, it was established that adults who depend on others due to their age and in some cases, disability are often confused, physically, or mentally challenged and medicated.
Because of these facts and their inability to care for themselves or comprehend some criminal activities against them, they must be legally protected.
In 1983, PEN 368 was therefore enacted to enable prosecution of individuals believed to be abusing the elderly. The law recognizes that older adults that are dependent on others are vulnerable, just like children with regard to abuse. The lawmakers adopted the same statutes in child abuse for the elderly and substituted “child” with “dependent adult.”
In 1986, PEN 368 was amended by the legislature to protect all elders, not only the ones that are dependent on others. The amendment widened the scope to cover any adult that is 65 years old or more regardless of whether they are physically or mentally sound.
Currently, any crime committed against a person in this age bracket will be prosecuted as elder abuse in addition to other similar cases that come with it.
How Reports and Prosecutions of Senior Abuse Charges are Made
In California, most prosecution agencies have formed specialized departments to deal with offenses in elder abuse. These departments are responsible for prosecuting these particular cases where a trained prosecutor oversees the whole matter from its initial filing to trial, then eventually sentencing.
The majority of the agencies, as found at the District Attorney’s office in Orange County, give a direct line to their senior abuse units. This communication channel makes it easier for the public to report suspected cases. However, the police are the ones that refer to a majority of the matters to the agencies.
Any person can report suspected abuse to the police as well as doctors or adult protective services. After receiving the report, the prosecution agency then evaluates the circumstances and makes a decision to reject or file the charges, and in some cases, request for further investigations.
Who Makes the Decision on the Agency to Prosecute?
Various factors determine the prosecuting agency. These will include:
- The place where the abuse is alleged to have happened
- Is the offense a misdemeanor or a felony
- The exact nature of the alleged abuse
Some specialized elder abuse units focus on felony prosecutions alone, while others deal with misdemeanor allegations. Some agencies, like the California Attorney General, only handle senior abuse cases involving retirement homes or nursing homes.
While all forms of abuse against the elderly are criminally prosecuted offenses, some task forces are specific on the areas of prosecution. For instance, an agency may decide to focus only on financial abuse cases while another will deal with sexual abuse allegations.
What Prosecutors Must Prove
If you have been accused of elderly abuse, to be convicted of violation PEN 368, the prosecutor needs to prove various aspects of the alleged crime. These elements include:
- That with criminal intent and negligence, you subjected the older adult to mental or physical torture or even allowed a different person to submit the elderly to the same.
- Your behavior happened under the circumstances likely to cause significant injuries or death.
- That the defendant knew the victim was elderly according to the law.
If the charges brought against you are a misdemeanor, the elements are similar but with a crucial difference. This crucial element is your behavior at the time was under conditions that endangered the elder’s life or wellbeing.
It is essential to take a look at various elements to understand California law on elderly abuse. These are:
- Willful action - This is when a person does something with deliberate intent.
- Criminal negligence – A defendant is found guilty of criminal negligence if their conduct was a result of criminal negligence or willful act. When a person is criminally negligent, it is beyond recklessness or a mistake in ordinary judgment. With regard to the elderly abuse law, criminal negligence is when a person acts in a manner to suggest they have no respect for the life of a human being. For instance, if a caregiver is taking care of a sick, elderly individual and neglects to give them water or food, they may face elder abuse charges.
Additionally, individuals that have a legal duty to care for the elderly and fail to do so can be prosecuted for elder abuse with criminal negligence. Such negligence is one reason that makes the law on elder abuse complex.
- Mental suffering or unjustifiable pain – This element is as stated. It refers to unnecessary suffering or pain physically or psychologically.
- Circumstances that can produce immense bodily harm – based on the domestic laws of California, the injury must be significant but not trivial. However, the elder does not need to suffer bodily harm, but as long as he or she is in a position where they can experience such a physical injury.
Penalties for PEN 368
Under California law, Senior abuse is a wobbler offense. Meaning it can be prosecuted as a felony or a misdemeanor. There are two primary considerations prosecutors look at before deciding on how to pursue the charges. These include:
- Facts specific to the case, and
- The criminal history of the defendant
The penalties a defendant gets are primarily determined by how the case was prosecuted, either as a felony or misdemeanor.
Elder Abuse – Misdemeanor Charges
If a defendant is successfully convicted of an elderly abuse misdemeanor under PEN 368, he or she is likely to face penalties that include:
- Jail time of up to one year in county jail
- Summary or informal probation
- A cash fine of up to $6,000 for first offenders or $10,000 for repeat offenders
- Court-ordered counseling
- Restitution or compensation to the abuse victim
Elder Abuse – Felony Charges
In the event a defendant is convicted of a felony in elder abuse, he or she will face one or several of the penalties below:
- Jail time in state prison for between 2 and 4 years. If the victim suffered death or significant physical injuries, an additional or consecutive jail time of between 3 to 10 years is added to the sentencing. Subsequently, one can face probable strike based on the Three Strikes Law in California.
- A formal probation
- Cash fines that can total up to $10,000
- Court-ordered counseling and or
- Compensation or restitution to the victim
Fighting Charges of Elder Abuse
There have been cases where innocent people have been falsely accused of elder abuse. In some cases, the accuser could be lying intentionally out of malice, or the person reporting may have misunderstood the circumstances. Older adults often suffer from various diseases or conditions that may mimic neglect or physical abuse. This fact can also result in false accusations of abuse where none existed.
To make it worse, doctors, social workers, or even police are not always sure how to differentiate the signs of an accident and abuse. Age or illness can have abuse-like symptoms, yet the law requires them to report any cases of suspected abuse. The law is clear that if an individual mandated to report instances of possible abuse does not do so, he or she may face criminal charges as well. It is also important to note that even when the report was falsified, the reporter faces no ramifications.
However, to protect themselves from prosecution, these people often may make reports that lack support or have not been investigated.
If you find yourself facing elder abuse charges, there are several defenses your lawyer can use to argue your case. These defense strategies, if applied well, can help dismiss or reduce or have the charges dropped. Some of the commonly used defense strategies include:
An Accident Resulted in the Injuries
Sometimes, a person had no intention to cause harm, or their behavior cannot be categorized as criminal negligence. In such a case, the prosecutor can't bring a conviction against you for violating PEN 368 of elder abuse law. For instance, if a caregiver accidentally trips and falls as he or she is transferring an elderly from a wheelchair to a bed, the elderly may break a leg, but it was by accident. In such a case, the caregiver cannot be accused of abuse because he or she did not act intentionally or out of criminal negligence.
Wrongful Arrest or Falsified Accusations
Earlier, we discussed that a person could be falsely accused of elder abuse and the circumstances under which this happens. A person can be jealous of the caregiver if the elderly trust them and gifts them with cash or other items. The allegations could also have been made honestly by individuals mandated to do so, but upon investigation, it was discovered that no abuse happened.
It is also possible to be accused of falsely based on mistaken identity. An elderly may have been abused, but the person that did it wasn’t you. For instance, if you are registered as the principal caregiver, it is easy for others to assume you are responsible for the abuse.
Additionally, in some cases, you could have been at loggerheads with your parents over their estate. If immediately after he or she displays symptoms of abuse, other members of the family may assume the worst.
Lack of Evidence
For a successful conviction on elder abuse charges, the prosecutor is expected to remove any doubts about the defendant’s guilt. What this means is that there exist no other explanations as to the cause of injuries. With certainty, the defendant caused them.
If the prosecutor is not able to produce evidence of the purposed neglect or abuse, the criminal defense attorney can bring in a shadow of a doubt as regards your guilt.
In most cases, criminal defense attorneys will introduce an expert witness that is expected to give a testimony that suggests the injuries were due to an illness, age, or accident. In some cases, witnesses may testify to the mental capacity of the victim and claim paranoia, delusional tendencies, or senile actions.
If a defendant is faced with neglect accusations where an elder was placed in a dangerous situation, he or she should produce evidence of the care he or she provided to the elderly. This action is achieved through the provision of medical receipts, bills for air conditioning or heating, or doctor visit records. The defendant must produce anything that will demonstrate they are innocent of abuse or neglect contrary to the charges.
An Isolated Event Led to the Abuse
Sometimes you could be guilty of a particular incidence of abuse, and the defendant can seek empathy from the court by explaining that an isolated event led to the abuse. Those that have taken care of a senior person understand the emotional as well as the physical demands a caregiver faces regularly or daily. The defendant can try convincing the judge, the jury, or the prosecutor that the act was an isolated incident that was emotionally triggered. If you can illustrate the emotional trigger, you can get sympathy as well as a reduced or lesser sentence.
Related Elder Abuse Charges in California
Based on the facts of an alleged offense, various crimes are similar to PEN 368 because of the following:
- They are often committed about elder abuse
- They have the same elements as those of elder abuse
Some of these offenses are as follows:
- Battery PEN 242
Under the California law, PEN 242, battery is described as the application of force willingly or violence on another person. When a person intentionally commits physical abuse either through hitting or attacking a senior violently, the prosecution can level elder abuse as well as battery charges against them.
When the battery fails to cause severe bodily injuries to the elderly, it is charged as a misdemeanor leading the perpetrator to be subjected to a cash fine not exceeding $2,000. Another possible penalty for this misdemeanor battery is a possible county jail time of up to 6 months. Depending on the circumstances of the alleged assault, the defendant can also receive sentencing that includes both the fine and jail time.
If the battery leads to severe body injuries, it becomes a wobbler offense that can be prosecuted as a felony or a misdemeanor. If found guilty, the defendant can face imprisonment for up to four years if a felony or one year of jail time as a misdemeanor.
- Rape PEN 261
Rape is the act of having sexual intercourse that is nonconsensual with the other person by either use of threats, force, or fraud. If a person is accused of having sex with an elderly without their consent, the prosecution will likely introduce rape and elder abuse charges against them.
These allegations are often arrived at when it is discovered a person engages in sexual intercourse with an incapacitated elder or one that is unable to give consent for sex. However, the typical rape cases where force is used against the elderly also exist.
In California, rape is prosecuted as a felony, and the perpetrator, if found guilty, can be sentenced to between three to six in a California state prison. In some cases, the sentence can run to eight years. The person will also be charged with elder abuse and will face penalties for the same.
At the same time, if a person engages in other sexual acts that do not involve intercourse without the consent of the elderly, they can also be prosecuted. This crime is common with elders that are dependent on family or caregivers due to declining physical and mental capabilities. In such cases, the perpetrator is charged with both elder abuse and lascivious or lewd acts under PEN 288.
- PEN 187–Murder and PEN 192-Involuntary Manslaughter
When a person is accused of murdering an elder, the prosecutor will charge them with murder under PEN 187 as well as elder abuse. Should the killing have been involuntary, the person will be charged with involuntary manslaughter under PEN 192.
- PEN 422 – Criminal Threats
Criminal threats occur when a person:
- Threatens to cause harm to the elder
- The said elder lives in fear of you
- Carries out the threat and causes injuries to the elder
If any of these happens, the person is charged with elder abuse. This charge is in addition to PEN 422–criminal threats under the California law.
If convicted, the person will receive penalties for elder abuse in addition to sentencing on criminal threats. A possible county jail time of up to a year, or serve time in California state prison.
- Domestic Violence Laws in California
If a person is charged with senior abuse of their spouse, partner, grandparent, parent, or roommate, they will be prosecuted with elder abuse. This is done with regard to the domestic violence laws of California. Typically, these particular laws increase the penalties above the normal ones associated with elder abuse offenses.
- PEN 401 – Assisted Suicide
As people age, their health deteriorates. Some older adults suffer from terminal illnesses as well as painfully chronic sicknesses that they wish to commit suicide. Should a caregiver or a relative encourage the elderly to commit suicide or aids them in doing it, they will be prosecuted under PEN 401, assisting suicide.
Additionally, when the senior person succeeds in killing themselves, the relatives in most cases are in denial and accuse the caregiver of assisted suicide even when that was not the case. It, therefore, means a caregiver can easily find themselves falsely accused of the crime and in need of a qualified lawyer's services.
Aiding suicide in California is a felony offense where the accused can face jail time in the state prison not exceeding three years. This situation is true despite the belief that the defendant was helping the victim.
Find an Orange County Criminal Attorney Near Me
Violation of elder or senior abuse laws will lead to various severe penalties. Some accusations can be falsified or unintentional, and one needs to prove that. If accused of elder abuse, it is essential to consult a criminal defense lawyer that understands the complexity of the issues surrounding the charges. Get in touch today with the Orange County Criminal Defense Attorney Law Firm, and we shall arrange an appointment to start your defense immediately. Call us today at 714-740-7848 and let us help you with the charges.