Elder abuse presents many challenges to prosecutors — some of which are unique to elder abuse, some of which are familiar, if thorny, issues from child abuse and domestic violence (such as complicated family dynamics). Indeed, much of the system meant to protect elders is drawn from the child protective services system. Child abuse is not, of course, a perfect analogy for elder abuse, and there has been debate over the functionality (for example, do compulsory reporting statutes work?) and ethics (for example, do they respect the autonomy of competent adults?) of these laws.
The laws that protect elders specifically and the definitions of elder abuse itself vary from state to state, though all states have some form of legislation that addresses the issue. Laws that protect older adults (usually defined as those 65 and older) usually fall into one of three categories:
- Laws "that create and govern state [adult protective services] APS units, which are charged with providing services to vulnerable adults. APS agencies are generally viewed as the front-line responders to the problem of elder mistreatment because they investigate reports of elder mistreatment and offer victim services."
- Reporting "laws that permit or require certain persons to report certain types of mistreatment to a government agency, typically APS."
- Laws "that specifically prohibit or specially penalize (or both) certain treatment of older adults. Some create new crimes for which perpetrators of elder mistreatment can be held liable; others provide for enhanced penalties for those convicted of crimes involving elderly or otherwise vulnerable victims."
Recommendations by the American Bar Association for improving the handling of elder abuse cases by prosecutors include setting up special elder abuse units or special prosecutors. The ABA recommends training prosecutors on the kinds of crimes committed against the elderly and the particular issues the elderly may present as victims, improving victim aid services, educating the public and professionals, and forming multidisciplinary teams.
When it comes to prosecuting elder abuse cases, multidisciplinary teams have been invaluable, said Tristan Saver, deputy district attorney with the Elder & Dependent Adult Abuse Prosecution Family Violence Unit Central Division at San Bernardino County (Calif.) District Attorney's Office. The teams, like APS units, are drawn from the child-abuse model for prosecuting cases.
"They are absolutely essential to work a case properly," Svare said. He pointed to the role they play in gathering individuals with critical, specialized knowledge in a particular subject matter together in child abuse cases. "Without experts to say 'this is truly abusive; this is what happens when you shake an infant,' you won't get anywhere on the case."
The same is true in cases of elder abuse, Svare said.
The National District Attorneys Association policy position on elder abuse echoes Svare's sentiment, stating that, "Frequently, a multidisciplinary approach may be a more effective means of prosecuting elder abuse cases, holding offenders accountable, protecting victims and preventing future abuses. The successful prosecution of elder abuse, neglect and exploitation requires the collaboration of specially trained individuals from multiple agencies and organizations within the community."
Svare said he is in an unusual position. California has good, comprehensive laws about elder mistreatment; Southern California has excellent resources for dealing with the complexities of elder abuse cases. Of particular note is the geriatrics program at the University of California, Irvine, which started the country's first Elder Abuse Forensic Center in May 2003. He is also part of an elder abuse prosecution unit (San Bernardino County has had a specialized prosecution team for elder abuse cases since 2000). Having a unit that is familiar with the special features and challenges of elder abuse prosecution can play an important role in moving cases forward, Svare said. Yet, he adds, such a unit is simply not practical in all offices.
The American Prosecutors Research Institute conducted interviews with elder abuse prosecutors and identified several barriers to prosecution:
- "The priorities in a prosecutor's office can change from elder abuse one day to gangs and drugs the next."
- "Training of the prosecutors is spotty at best. The training has to be ongoing and reflect the needs of the current staff in the positions."
- "Prosecutors will only take cases that they believe will result in conviction. These cases present complex issues and can be difficult to prove."
- "There is a lack of public education or public outreach on the topic from most prosecution offices."
- "There are systemic problems in the interplay between prosecutors, law enforcement, APS, nursing homes, and the roles each is to play."
Svare similarly noted that prosecutors might hesitate to take elder abuse cases for many reasons. These include their overall complexity, because they often involve complicated medical and financial issues and concerns about victim competency. Also, elderly victims might have other special needs and may lack jury appeal.
"We need to teach prosecutors that they can do this," Svare said.
Awareness among the public and among law enforcement is crucial. Prosecutors should take a leadership role in educating communities about elder abuse by raising awareness. It is a crime and should be treated as such, Svare said.
Police, for example, need to recognize elder abuse and treat it as potentially criminal and something that should be investigated. The key to this is, again, education and training — teaching officers and other first responders to identify and respond to signs of abuse and neglect among the elderly, Svare said.
Of course, prosecutors want to have a winning record, but that should not be the deciding factor, Svare said. "It can't be about ego," he said. "It has to be about the case — what's the just thing to do." Svare added that prosecutors were more likely to get a plea than in any other type of case — especially if it is a good case on paper. However, even if it goes to trial, if nothing else, "it's good for raising awareness in the community."
About This Article
This article appeared in NIJ Journal Issue 265, April 2010, as a sidebar to the article Elder Abuse Emerges From the Shadows of Public Consciousness by Philip Bulman.
[note 1] In residential settings, family members (including extended family) are responsible for committing almost 90 percent of elder abuse. See Twomey, M., M.J. Quinn, and E. Dakin, "From Behind Closed Doors: Shedding Light on Elder Abuse and Domestic Violence in Late Life," Journal of the Center for Families, Children & the Courts 6 (2005): 73-80; Barber, J.W., "The Kids Aren't All Right: The Failure of Child Abuse Statutes as a Model for Elder Abuse Statutes," Elder Law Journal 16 (1) (2008): 107-111.
[note 2] "Introduction" in Elder Mistreatment: Abuse, Neglect, and Exploitation in an Aging America, ed. R.J. Bonnie and R.B. Wallace, Washington, DC: National Academy of Sciences, 2003.
[note 3] See generally, for example, Barber, "The Kids Aren't All Right: The Failure of Child Abuse Statutes as a Model for Elder Abuse Statutes."
[note 4] Kohn, N., "Outliving Civil Rights," Washington University Law Review 86 (5) (2009): 1053-1115.
[note 5] Ibid.
[note 6] American Bar Association, Criminal Justice Section, Senior Lawyers Division Commission on Domestic Violence, Commission on Law and Aging, Report to the House of Delegates, February 2008: 6-7.
[note 7] National District Attorneys Association, Policy Positions on the Prosecution of Elder Abuse, Neglect, and Financial Exploitation, March 2003.
[note 8] Wiglesworth, A., L. Mosqueda, K. Burnight, T. Younglove, and D. Jeske. "Findings From an Elder Abuse Forensic Center," The Gerontologist 46 (2) (2006): 277-283.
[note 9] Brambila, N., "Prosecutor: Cases Frequently Not Viewed as Serious Crimes," The Desert Sun, July 18, 2009.
[note 10] American Prosecutors Research Institute, "Protecting America's Senior Citizens: What Local Prosecutors Are Doing to Fight Elder Abuse," Special Topic Series, Alexandria, VA: American Prosecutors Research Institute, September 2003: 4.
[note 11] American Bar Association, Report to the House of Delegates.