A conviction of elder abuse can have a life-changing effect. Apart from facing incarceration, you can also be subjected to hefty fines that may be a burden. However, it is not uncommon that allegations of elder abuse can be made against innocent persons. False allegations could be because the elderly victim is confused, which leads him or her to make unfounded claims. Other times, a jealous or angry family member may report another member of the family to have control of the elderly’s finances. Also, the family or friends that mean well may report the elderly’s caregiver without adequate justification.

Therefore, if you are facing elder abuse charges, do not plead guilty yet. Talk to a lawyer from San Diego Criminal Attorney who will investigate your case further to get all the facts that can prove your innocence. If the allegations are true, our attorneys can still beat the charges for you through a strong defense strategy.

What is Elder Abuse?

PC 368 sets forth the crime of elder abuse. It defines it as any physical, financial, or emotional abuse or any other conduct that causes physical or mental suffering or pain directed at any person who is 65 years old or older. Physical abuse involves inflicting bodily injuries, sexual abuse, abandonment, neglect, and abduction. Emotional abuse includes bullying, threatening to inflict physical harm, or making belittling, racist, degrading or otherwise offensive comments. Financial abuse is committed through theft or fraud in an attempt to steal or gain access to the property.

Elder abuse is sometimes called senior abuse. The offense can be committed by members of the family, friends, nursing home amenities, or caregivers.

Why Elders Receive Maximum Protection

The lawmakers of California first addressed the elder abuse issue in the 1980s. In 1982, the lawmakers acknowledged that dependent adults (individuals who depend on other people to meet their needs due to their disability or age) are often confused, medicated, or physically or mentally impaired. Due to this, and the fact that these dependent adults are incapable of protecting themselves or comprehend and report criminal behavior, they have to be accorded exceptional legal protection.

In 1983, the lawmakers implemented PC 368. Peace enforcement agencies wanted this statute to be implemented since they did not have a law in place that permitted them to arrest and prosecute individuals that were allegedly neglecting or abusing dependent adults.

Acknowledging that dependent adults are, most of the time, vulnerable to abuse just like children, legislators used a similar language they had used when creating child abuse laws. They only replaced the term ‘child’ with ‘dependent adult.’

In 1986, PC 368 was finally implemented to cover every elder and not just the dependent ones. The amendment stretched the coverage limit from protecting only the dependent adults that are incapable of meeting their needs due to their age or physical or mental ability to protecting any individual who is over sixty-five years irrespective of his or her physical or mental abilities. In the present day, both categories of persons get special protection as provided for under the elder abuse laws of California.

Reporting Cases of Elder Abuse and Prosecuting the Perpetrators

Most prosecuting agencies in San Diego have exceptional units that deal with cases of elder abuse. These units prosecute exceptional cases vertically. This means a deputy prosecutor, who holds special training oversees the entire abuse case from filing charges, trial hearings to sentencing.

Most of the agencies give out direct telephone contacts to their units that deal with elder abuse cases, so the members of the public easily and quickly report any criminal activity they suspect. However, many cases of elder abuse are brought to the agencies by law enforcement.

Law enforcement receives complaints of elder abuse from various sources. The sources include concerned friends or family members of the supposed elderly victim, doctors or caregivers, and Adult Protective Services.

Upon receiving the elder abuse report, the respective prosecuting agency has to decide whether or not it will file charges against the perpetrator, or whether a detective should be instructed to look further into the allegations.

How an Agency to Prosecute an Alleged Case of Elder Abuse is Decided

Different agencies prosecute different cases of elder abuse depending on:

  • Whether or not the elder abuse crime is a misdemeanor or a felony
  • Where the supposed elder abuse case takes place, and
  • The precise type of alleged abuse.

Certain exceptional prosecuting agencies prosecute only felony elder abuse allegations while others deal only with misdemeanor charges. Similarly, other agencies only handle cases of elder abuse that have to do with nursing homes and residential treatment amenities.

While physical, financial, and emotional senior abuse are all charged as criminal conduct, certain task forces of elder abuse restrict themselves within one of the criminal acts. For instance, you can find an agency that only prosecutes cases of financial elder abuse in case the financial amount allegedly taken is in thousands of dollars or if the alleged financial elder abuse offense involved an advanced level of theft or fraud.

Elements of Elder Abuse

For you to be convicted of PC 368, the prosecuting attorney has to prove various factors beyond a reasonable doubt. In case you are facing felony charges, the prosecutor must show the following:

You either, with criminal negligence or willfully, caused an elder mental suffering or unjustifiable bodily pain or allowed someone else to subject the elder to the suffering or pain.

Doing something willfully means that you did it on purpose or deliberately. On the other hand, ‘with criminal negligence’ means a more than ordinary mistake or carelessness in judgment. Your acts are criminally negligent when they are so unreasonable that they show a disregard for human life. Let us look at the following examples:

Example 1

Melody’s parents passed on not long ago, leaving her as the only person who can care for her bedridden grandmother. One day, due to frustration that her grandmother has many demands and doesn’t show gratitude for what she is doing for her, Melody intentionally slaps her grandmother a couple of times. Melody’s act was willful, and, given the circumstances, it might have put her grandmother’s health or life in danger. Thus, Melody can be convicted of senior abuse.

Example 2

Jeanette stays with her elderly aunt who can’t feed, move, or wash on her own because of a spine injury. For about three weeks, Jeanette doesn’t feed, move, or clean her grandmother, nor give her water, which almost makes her grandmother die from dehydration and bedsores. Jeanette can be convicted of elder abuse since she demonstrated a criminally negligent behavior.

Consider this: Grace’s ailing grandmother lives with her in her apartment. Grace has a tight working schedule and is, at the same time, supposed to take care of her grandmother. The grandmother takes over ten medications daily, which Grace now has to manage them. On one occasion, Grace is overwhelmed with work and ends up mistakenly giving the wrong medication. This lands her grandmother in hospital as her illness escalates. Grace’s actions were a slight mistake and ordinary carelessness. Thus, she can’t be guilty of Penal Code 368 since she wasn’t criminally negligent.

Mental suffering and unjustifiable bodily pain is suffering or pain that is not necessary or one that is excessive given the circumstances.

You acted under conditions that were most likely to lead to serious bodily injury or even death

Serious bodily injury refers to substantial or significant physical injury. It is important to note that it is not a must that the elder suffers serious physical harm. The prosecutor only needs to show that the victim was exposed to a condition that he or she was most likely to sustain a severe bodily injury.

You were aware, or you should have reasonably been aware that the supposed victim was elderly.

An elderly, under California law, is any person who is 65 years old and above. Thus, the prosecutor needs to prove that you knew the victim was this age before convicting you.

For misdemeanor charges, the elements of the crime are almost similar, but there is one main difference. They are as follows:

  1. You either, with criminal negligence or willfully caused an elder unjustifiable mental suffering or physical pain or allowed someone else to subject the elder to the suffering or pain.
  2. You were aware, or you should have reasonably been aware that the supposed victim was elderly.
  3. You acted under conditions that could have endangered the elder’s health or life (in place of conditions that were most likely to result in serious bodily injury or even death).

Note that you can only be convicted of Penal Code 368 on the grounds of criminal negligence if it was your legal responsibility or obligation to care for the elderly victim. That is why the law on elder abuse is quite complex. Although it may seem as if you are legally obligated to care for the elderly, that is not always it. Therefore, if you are facing elder abuse charges, you have to consult with a criminal defense lawyer who understands cases of elder abuse.

Penalties for Elder Abuse

PC 368 is a wobbler offense. This means that it can be charged as a felony or a misdemeanor. The prosecuting attorney considers factors like your criminal record and the facts surrounding your case before charging you.

A misdemeanor conviction carries the following consequences:

  • Summary probation
  • Up to one year of a county jail time
  • A fine of up to $6,000. If it is a second, third or subsequent elder abuse offense, you will be subjected to a fine of $10,000
  • Counseling
  • Victim restitution

If you are convicted of elder abuse as a felony, you will face the following consequences:

  • Formal probation
  • A maximum fine of $10,000
  • Counseling
  • Restitution
  • Up to four years of State Prison sentence (and up to seven additional and consecutive years of State Prison sentence in case the victim died or sustained severe bodily injury. You may also receive a strike as per the Three Strikes Law of California).

Note that apart from facing criminal punishments for elder abuse, you can also be subjected to civil penalties.

Legal Defenses to Elder Abuse

As we mentioned earlier, it is not uncommon for an innocent person to be falsely accused of elder abuse. Sometimes the victim may be intentionally lying. However, other times, false accusations emerge because elders often suffer from diseases or conditions that give rise to signs of neglect and abuse.

To make it worse, social workers, doctors, or police officers are not well trained to differentiate between signs that show abuse and those of illness, aging, or accident. Nevertheless, the law still requires them to report elder abuse cases.

If either of these persons or any other mandated reporter fails to report alleged cases of neglect or abuse, they may face criminal charges, yet they won’t face any consequences if they turn in a person who ends up being innocent. As a result, these people often report alleged cases of elder abuse with zero investigation or support to avoid criminal consequences.

Luckily, if you have been charged with elder abuse, you are given a chance to defend yourself. There are several legal defenses your attorney can present in an attempt to get your charges dismissed, reduced, or to win the case. They include:

The harm was accidental

If you did not intentionally inflict an injury on the victim or if your behavior was not criminally negligent, your attorney can claim accident as a legal defense. If he or she argues this defense successfully, you cannot be convicted of elder abuse.

For instance, Greg works as a caregiver to an elderly called Bob. One day as he is helping Bob around the compound in a wheelchair, Greg accidentally trips and falls. This makes him lose the balance of the wheelchair, which topples making Bob fall. Bob sustains bruises on the arm and face. Greg isn’t guilty of Penal Code 368 since his conduct wasn’t intentional; neither was it criminally negligent.

It was a mistaken identity

A person may accuse you falsely due to a mistaken identity case. The victim in question may have been abused, but it wasn’t you that abused him or her. For instance, if you’re the caregiver, other people would assume you were liable.

On the same note, if, for instance, you argued with your elderly parent and the parent shows signs of possible abuse soon after arguing, anyone would assume it is you that perpetrated the abuse even if it wasn’t.

You were falsely accused

As we mentioned earlier, there are several reasons why a person can falsely accuse another of senior abuse. For instance, it could be a jealous family member that accused you of abuse since the elder granted you a huge amount of money or any other gift. In other cases, the allegations may be true, but the physical injuries were not due to abuse.

Inadequate proof

For you to be convicted of Penal Code 368, the prosecutor has to prove your guilt beyond any reasonable doubt. Beyond any reasonable doubt means there’s no other reasonable explanation as to why the victim suffered injuries or pain other than you abusing him/her. If nothing corroborates the supposed neglect or abuse, your attorney can argue a lack of sufficient evidence, which casts a reasonable doubt to you being guilty.

Additionally, your attorney can subpoena an expert who will testify and ascertain that the supposed abuse signs are as a result of an accident, illness, or age. Sometimes, other witnesses or an expert will attest to the elder’s paranoia, delusions, or senility, which will prove that his or her accusations aren’t based on facts.

In case you have been accused of elder abuse or neglect, you can present proof to show how you have cared for the elder regularly. One way of doing this is by presenting prescription drugs receipts, air conditioning and heating bills, reports from doctor appointments, and anything else showing that you aren’t guilty of the charges against you, but instead, you have adequately taken care of the victim.

The alleged abuse was an exceptional occurrence

If you have taken care of an elderly, especially a relative, you probably understand the physical as well as emotional demands one faces on a daily or regular basis. If your attorney can argue this defense out in a way that it convinces the prosecutor, jury or judge that your conduct was an exceptional and unintentional case caused by an emotional breakdown, it is possible that they can sympathize with you and grant a reduced charge or sentence.

Related Offenses to Elder Abuse

Based on the facts surrounding the case, several other crimes may be related to elder abuse either due to similar elements that they share or because they’re regularly committed in connection to senior abuse. Thus, these offenses can be charged instead of or alongside elder abuse. They include:

Battery (PC 242)

A battery refers to an unlawful and intentional application of violence or force on another person. If you willfully commit physical/bodily elder abuse by violently attacking or hitting an elderly, you may be charged with both battery and elder abuse.

If a battery doesn’t cause the victim great bodily injury, it is normally charged as a misdemeanor. The consequences include a maximum fine of $2,000 and a maximum county jail sentence of six months. However, in case it causes great bodily injury, it will be a wobbler. If it’s a felony, the punishments include a maximum of a one-year county jail sentence or a maximum of four years of a state prison sentence.

Rape (PC 261)

In case you used threats, force, or fraud to have non-consensual sex with an elderly person, you can be charged with both elder abuse and rape. The crime of rape usually arises the moment one person discovers that someone is having sexual intercourse with an elderly person who is debilitated or unable to consent. Additionally, many forcible rape cases happen with elderly people that are too weak that they cannot resist the attack.

In California, rape is charged as a felony. Its consequences include up to eight years of a state prison sentence. This would add to the penalties one would be subjected to for senior abuse.

Similarly, in case you have other non-consensual sexual conduct (apart from intercourse) with a dependent adult, you may face elder abuse charges alongside PC 288 charges of lewd or lascivious acts.

Aiding/Encouraging Suicide (PC 401)

The elderly who suffer from painful or terminal chronic illnesses often contemplate suicide. However, if you encourage the elder to commit suicide, or intentionally help him or her to do so, the prosecutor can charge you with PC 401.

Additionally, when an elderly individual kills him or herself, his/her relatives will want to blame it on someone. Thus, they may end up wrongfully accusing the caregiver of aiding the suicide even if he or she didn’t participate.

PC 401 is charged as a felony offense. Its punishments include a maximum of three years sentence in state prison, despite it being committed by persons who are only trying to relieve their loved ones of the pain they are going through.

Criminal Threats (PC 422)                                

In case you threaten to injure an elderly person, then that person becomes afraid of your threats, and you go ahead to fulfill your threat, you may be charged with PC 422 criminal threats and elder abuse.

Criminal threats can subject you to a maximum of a one year sentence in county jail or state prison incarceration to add on the punishments for senior abuse.

Find an San Diego Criminal Lawyer Near Me

California’s Elder Abuse laws are complex. Thus, it’s important to consult with an elder abuse attorney who has experience dealing with these cases. At San Diego Criminal Attorney, we have knowledgeable attorneys who understand elder abuse laws and can help you build a unique strategy to defend you from the charges against you. In case you or your loved one has been charged with elder abuse, or if you want to learn more about the offense, call us at 619-880-5474 to request the help you need.