Elder Abuse

According to the National Center on Elder Abuse, close to six million cases of elder abuse are reported in the U.S every year. 11% of these cases take place in California. Unfortunately, when talking about elder abuse in the U.S, California takes the lead. This has made elder abuse a problem that affects individuals from every economic, ethnic, and social background.

To tame elder abuse cases, California lawmakers have since established that dependent adults and the elderly deserve special protection. This is because they may be incapable of protecting themselves against abuse. Thus, laws have been enacted, making elder abuse an offense that attracts severe penalties.

If you are charged with an elder abuse offense, you should hire an expert defense attorney to stand a chance of fighting the charges. If you live in Santa Ana, reach out to our attorneys at Darwish Law as soon as you get arrested. We will start building a defense that may have your charges dismissed or reduced.

Elder Abuse Overview

Elder abuse, otherwise referred to as senior abuse, is defined under Penal Code (PC) 368. This statute makes it an offense for a person who is aware or should reasonably have been aware that a person is dependent adult or elder to:

  1. Subject the dependent adult or elder to conditions or circumstances that are likely to cause death or severe bodily injury.
  2. Willfully cause or permit the dependent adult or elder to suffer.
  3. Inflict unjustifiable mental suffering or physical pain on the dependent adult or elder.
  4. Willfully permit or cause the health or person of the dependent adult or elder to be harmed.
  5. Willfully permit or cause the dependent adult or elder to be put in situations in which his/her health or person is endangered.

In California, an elder is any person who is 65 years or older. An independent adult, on the other hand, is anyone between 18 and 64 years who needs help in carrying out their normal activities or defending their rights.

Anyone can commit an elder or dependent adult abuse offense, including family members, nursing home workers, or caregivers.

As per the law, elder abuse can be divided into different kinds. They include:

  • Physical abuse- Physical abuse includes causing the elder physical injuries, neglect, sexual abuse, abduction, and abandonment. Sexual abuse involves making contact with the elderly without their permission. It can also include acts of coercing the elderly to watch acts of pornography or sex or coercing them to undress against their will. A person who abandons an elderly is responsible for neglect. Failing to fulfill your responsibilities towards an elderly, either unintentionally or intentionally, is abuse towards the person.

  • Financial abuse- Financial abuse is committed through theft or fraud in an attempt to extort funds from the elderly. For instance, forging an elderly’s signature for financial gain is considered financial abuse.

  • Emotional abuse- Emotional abuse is speaking to the elderly in a demeaning or intimidating way, forcing them into isolation, or causing them great mental distress. For instance, yelling at an elderly, ignoring them, or harshly treating them is considered emotional abuse.

Elements of Elder Abuse

For you to be convicted of violating elder abuse law, the prosecuting attorney has to prove various facts beyond a reasonable doubt. These facts are what we call elements of elder abuse. If you get charged with a felony senior abuse offense, the prosecution must establish the following:

  • You willfully OR with criminal negligence either exposed an elderly to unwarrantable physical pain, or permitted someone else to do it.
  • You were aware or should reasonably have been aware that the supposed victim was a dependent adult or an elderly.
  • You acted under conditions that were most likely to cause great bodily harm or death.

The elements of a misdemeanor charge are similar to those of a felony. However, there is one crucial difference to note. The prosecutor must show the following to convict you of a misdemeanor elder abuse offense:

  • You willfully OR with criminal negligence either exposed an elderly to unwarrantable physical or mental pain, or allowed someone else to do it.
  • You were aware or should reasonably have been aware that the supposed victim was a dependent adult or an elderly.
  • You acted under conditions that might have put the health or life of the elderly in danger.

The difference between a felony charge and a misdemeanor charge lies in the third point. For a felony, you need to have acted under conditions likely to cause great bodily harm or death. For a misdemeanor, you need to have acted under circumstances that are likely to endanger the health/ life of the elderly.

Willfully means doing something on purpose or deliberately. Criminal negligence is acting with more than normal carelessness, or making an error in judgment. It means acting so unreasonably in that your acts show disrespect to human life.

Note that you can only be sentenced for PC 368 on the grounds of criminal negligence if you had a lawful responsibility to act. That is why senior abuse laws are quite complex. Although it may seem as if you have a lawful obligation to intervene, that is not always it. Thus, it is critical to consult with a criminal defense lawyer who has experience defending cases of elder abuse.

Unjustifiable mental suffering or physical pain is any suffering or pain that is not necessary. Or, it could be suffering or pain inflicted in excess, given the circumstances. Circumstances that are likely to cause severe bodily injury include domestic violence. Under California law, domestic violence means a substantial or significant physical injury, not insignificant or trivial harm.

However, note that it is not a must that the elder you abuse suffer actual great bodily injury. You only need to have placed the elder in any situation where they were likely to sustain such harm.

Penalties for an Elder Abuse Offense

Senior abuse is considered a wobbler offense under the law. This means that the prosecutor has the discretion to charge you with either a felony or a misdemeanor.  Before he/she can press felony or misdemeanor charges, the prosecutor considers your criminal record and the facts surrounding your case. Additionally, the charges you face determine what penalties you will receive.

Elder abuse as a misdemeanor

If you are convicted of a misdemeanor senior abuse offense, you may be subjected to all or any of these penalties:

  • Up to a one year sentence in county jail.
  • Summary probation.
  • Up to $6,000 in fines. Or up to $10,000 fine if it is a subsequent offense.
  • Victim restitution.

Elder abuse as a felony

If you are convicted of a felony senior abuse offense, you may be subjected to all or any of these penalties:

  • Formal probation.
  • A maximum of $10,000 in fines.
  • Two to four years of a state prison sentence. You may also get an additional & consecutive three to seven years in state prison in case the victim died or suffered actual great bodily harm.
  • A possible strike under the Three Strikes laws in case the victim died or sustained actual great bodily harm.

PC 368 Legal Defenses

Often, charges of elder abuse are falsely or wrongly pressed against innocent parties. In other cases, the accuser may be intentionally lying. However, other times, the false charges emerge because often, elders suffer from diseases and conditions whose signs are similar to those of neglect and physical abuse.

Additionally, police, doctors, and even social workers may not be trained to differentiate between signs of aging, an illness, or an accident and those of abuse. But, the law requires them to report any suspected elder abuse. If they fail to do so, they could face criminal charges as well. So, even if they report a person who is later found innocent, they face no consequences. As a result, these people often report suspected elder abuse cases with little or no investigation or support to avoid facing charges.

Luckily, if charged with elder abuse, there are several legal defenses your defense attorney can argue in an attempt to dismiss, reduce, or beat the charges. Here are a few of the common defenses that have worked in court.

The harm was accidental

If you did not act willfully to harm the elder in question, you wouldn’t be convicted of senior abuse. Similarly, you won’t be convicted if your behavior did not qualify to be criminally negligent.

Wrongful arrest/false accusations

As earlier mentioned, there are several reasons why a person can falsely accuse you of senior abuse. For instance, a jealous family member may allege that a caregiver has abused the elder since the elder bestowed money upon the caregiver. Perhaps the accusations are honest, but the injury or injuries are not due to abuse.

Inadequate proof

For you to be convicted of senior abuse, the prosecuting attorney has to prove beyond any doubt that you are guilty. In this case, it implies that there should be no other reasonable explanation to justify the injuries of the elder other than you abusing him/her.

In case the prosecutor has no evidence to back the alleged neglect or abuse, your attorney can argue that there is a reasonable doubt that you are guilty.

Mostly, defense attorneys would subpoena a professional to attest that the supposed abuse signs were due to age, accident, or an illness. Other witnesses may also attest that the victim is delusional, senile, or paranoid, and his/her allegations are not dependent on real facts.

In case you are being accused of neglect, you can present proof to show how you have regularly taken care of the elder. For instance, you can provide bills of air conditioning, the receipts you are given after buying prescription drugs, and doctor visits records.

Mistaken identity

You can be falsely accused of elder abuse due to a mistaken identity case. It may be that the elder was abused, but it was not you who did it. For instance, if taking care of the elder is primarily your responsibility, other people would assume it was you who abused him/her.

Similarly, let us say you and the elderly were in disagreement about the estate that belonged to the elder. Soon after a quarrel, the elder shows signs of abuse. Other people would incorrectly deduce that it was you who abused the elder.

The abuse incident was an isolated case

Any person who has taken care of a senior person, especially a relative, knows the emotional and physical demands there are on a daily or regular basis. If your attorney can persuade the prosecutor, jury, or judge that your action was an isolated case prompted by emotional breakdown, you could gain sympathy. As a result, you may be convicted of a reduced or lesser charge, and your sentence may be reduced.

Offenses Related to Elder Abuse

Based on the facts of your case, several crimes are closely related to elder abuse, which may be charged instead of or alongside the elder abuse charges. These offenses are related because they share various elements with senior abuse, or they are often committed in connection to senior abuse. Crimes related to elder abuse include but are not limited to:

  • Battery (PC 242)
  • Rape (PC 261)
  • Murder (PC 187)
  • Involuntary manslaughter (PC 192)
  • Criminal threats (PC 422)
  • Aiding a suicide (PC 401)
  • Domestic violence (PC 273.5)

Find a Criminal Elder Abuse Defense Attorney Near Me

If you are facing charges of elder abuse, you must contact a skilled attorney who is experienced with these types of cases. This is because of how complex the elder abuse law can get. For those charged in Santa Ana, Darwish Law will help you fight the charges against you. Our attorneys have successfully represented clients charged with elder abuse and neglect for many years. Thus, we are well-versed in the California elder abuse law as well as the know-how to win your case. Contact us today at 714-887-4810, and we will give you the help you need.