A Glance Across the Aisle: The Criminal Side of Elder Abuse Law

lonelysenior.jpg As we’ve often explained in these pages, the criminal and civil systems are separate and distinct. Our law firm focuses on the civil system, where individuals are able to bring claims against others for legal wrongs. In contrast, the criminal system focuses on claims brought by government representatives for violating statutory laws. One of our practice areas is elder law, a specialty area involving representing victims of elder abuse in Northern California courts in suits against their abusers, typically seeking monetary damages as compensation for the wrongs. In today’s blog discussion, we wanted to provide a brief glimpse at the other side of the elder law system, criminal elder abuse claims. In some cases, our clients are interested in the criminal side because the government is pursuing its own criminal elder abuse claim at the same time as we represent them in a civil matter (although this is not a requirement and a civil claim may exist even absent a criminal prosecution). In other cases, the criminal system is useful as a reference for understanding legal standards, even though they are not directly applicable in civil court.

California’s Criminal Elder Abuse Law
Criminal elder abuse cases in California are prosecuted as violations of Penal Code 368. The statute provides that it is a felony when someone: 1) Knows or should know that the person is elderly or dependent, 2) Under circumstances likely to lead to death or grave bodily harm; 3) Willfully causes or allows another to cause the person to suffer injury, unjustifiable physical pain or mental suffering. Misdemeanor level elder abuse is similar except for prong (2), with the lesser offense triggered by circumstances likely to endanger the victim’s life or health but that do not threaten death or great bodily harm. Other portions of the statute focus more directly on financial abuse, creating a special crime when financial abuse threatens an elderly or dependent individual. Either willful or “criminally negligent” behavior can trigger a violation, with the latter involving a substantial deviation from ordinary care. For these crimes, “elderly” means someone aged 65 or older. A “dependent adult” is defined as someone between the ages of 18 and 64 whose physical or mental limitations restrict the ability to perform normal functions and protect his or her own rights.

Penalties for criminal elder abuse in California vary based on the age of the victim, the relationship between the offender and victim (which establishes a duty of care), and the specific conduct involved. Misdemeanor violations could result in penalties including mandatory counseling, a fine up to $6,000, and up to one year in jail. Felony violations can result in fines up to $10,000 and two to four years in jail, with the potential for an additional three to seven years if the abuse causes death or great bodily harm.

Defendants facing a charge of elder abuse may try to raise a number of defenses, including claiming any injury was an accident, the claim is the result of a false accusation, or that there was a case of mistaken identity. Additionally, since the burden of proof rests on the state, a defendant can simply suggest that there is insufficient evidence. Like other criminal charges, a criminal elder abuse claim must be proven beyond a reasonable doubt (a much higher standard than required in civil cases).

Representing Elder Abuse Victims in California’s Civil Courts
Elder abuse is a serious matter. As advocates for California’s elderly, we are glad to see that authorities at all levels of government are beginning to take these claims more seriously and to devote specialized resources to the prosecution of elder abuse claims. Likewise, we devote substantial time and energy to staying up-to-date on elder law issues so that we can provide the best possible representation to Northern California elder abuse victims in civil court. We welcome calls from anyone who believes that they or a loved one has been a victim of elder abuse and offer a free consultation to discuss filing civil claims and provide a general overview of the legal process in such matters. We serve clients in San Francisco, Oakland, Berkeley, Richmond, Sacramento, and all surrounding areas.

See Related Blog Posts:
Identifying the Many Forms of Elder Abuse

California Enacts New Law Expanding Mandatory Reporting of Elder Abuse

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